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450
OCTOBER TERM, 1967.
MONRO
Syllabus.
391 U.S.
450
MONROE ET AL. v. BOARD OF COMMISSIONERS
OF THE CITY OF JACKSON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT.
No. 740. Argued April 3, 1968.-Decided May 27, 1968.
About one-third of the City of Jackson's population of 40,000 are
Negroes, the great majority of whom live in the city's central
area. The city school system has eight elementary, three junior
high, and two senior high schools for the 7,650 students, of whom
about 40% are Negroes. Tennessee law in 1954 required racial
segregation in schools; five elementary and two junior high
schools and one senior high school were operated as "white"
schools, and the remainder as "Negro" schools. After Brown V.
Board of Education, 347 U. S. 483 (1954), declared such dual
systems unconstitutional, Tennessee enacted a pupil placement
law, which gave local school boards exclusive authority to approve
assignments. No white students enrolled in any "Negro" school
and only seven applications were granted in two years permitting
Negro pupils to enroll in "white" schools. In March 1962 the
Court of Appeals held that law inadequate "as a plan to convert
a biracial system into a nonracial one." This action was brought
in January 1963, seeking a declaratory judgment that respondents
were operating a racially segregated system, injunctive relief
against maintenance of that system, an order directing admission
to named "white" schools of Negro plaintiffs, and an order requir-
ing the School Board to formulate and file a desegregation plan.
The District Court ordered the students enrolled and the filing
of a plan. A plan was filed, and with court-directed modifications,
was approved in August 1963, to be effective at once in the ele-
mentary schools and to be extended over a four-year period to
junior and senior high schools. The modified plan provides for
automatic assignment of pupils within attendance zones drawn
along geographic or "natural" boundaries, and "according to the
capacity and facilities" of the schools. However, the plan also
has a "free-transfer" provision by which a student may freely
transfer to a school of his choice if space is available, zone residents
having priority in case of overcrowding. No bus service is pro-
vided. After one year the Negro elementary schools remained
for
MONROE v. BOARD OF COMMISSIONERS 451
450
Syllabus.
all Negro, and 118 Negro pupils were scattered among four
formerly all-white schools. Petitioners moved for further relief
and the District Court held the plan had been administered
discriminatorily. In the same proceeding the Board filed its
proposed zones for the three junior high schools, to which peti-
tioners objected on the grounds that the zones were racially
gerrymandered and that the plan was inadequate to reorganize
the system on a nonracial basis. Petitioners urged that the
Board be required to use a "feeder system," whereby each junior
high would draw its students from specific elementary schools.
The District Court held that petitioners had not sustained the
allegations that the zones were gerrymandered and concluded that
"there is no constitutional requirement" that the "feeder system"
be adopted. The Court of Appeals affirmed, except on the issue
of faculty segregation. Three years later the Negro junior high,
which had over 80% of the Negro junior high students, had no
white students, one "white" junior high had seven Negroes out
of 819 students, and the other had 349 white and 135 Negro
pupils. Held:
1. The "free-transfer" plan clearly does not meet respondent
Board's "affirmative duty to take whatever steps might be neces-
sary to convert to a unitary system in which racial discrimination
would be eliminated root and branch," Green V. County School
Board, ante, at 437-438, "[r]ather than further the dismantling of
the dual system, the ["free-transfer"] plan has operated simply to
burden children and their parents with a responsibility
placed
squarely on the School Board." Id., at 441-442. P. 458.
2. Since it has not been shown that the "free-transfer" plan
will further rather than delay conversion to a unitary, nonracial
system, it is unacceptable, and the Board must formulate a new
plan which promises realistically to convert promptly to a unitary,
nondiscriminatory school system. Pp. 459-460.
380 F. 2d 955, vacated in part and remanded.
James M. Nabrit III and Jack Greenberg argued the
cause for petitioners. With them on the brief were
Michael Meltsner, Avon N. Williams, Jr., and Z. Alex-
ander Looby.
Russell Rice, Sr., argued the cause and filed a brief
for respondents.
298-002 o 69 32
452
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
Louis F. Claiborne argued the cause for the United
States, as amicus curiae. With him on the brief were
Solicitor General Griswold, Assistant Attorney General
Pollak, Lawrence G. Wallace, and Brian K. Landsberg.
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
This case was argued with No. 695, Green V. County
School Board of New Kent County, ante, p. 430, and
No. 805, Raney V. Board of Education of the Gould
School District, ante, p. 443. The question for decision
is similar to the question decided in those cases. Here,
however, the principal feature of a desegregation plan-
which calls in question its adequacy to effectuate a
transition to a racially nondiscriminatory system in com-
pliance with Brown V. Board of Education, 349 U.S. 294
(Brown II)-is not "freedom of choice" but a variant
commonly referred to as "free transfer."
The respondent Board of Commissioners is the School
Board for the City of Jackson, located in midwestern
Tennessee. The school district coincides with the city
limits. Some one-third of the city's population of 40,000
are Negroes, the great majority of whom live in the city's
central area. The school system has eight elementary
schools, three junior high schools, and two senior high
schools. There are 7,650 children enrolled in the system's
schools, about 40% of whom, over 3,200, are Negroes.
In 1954 Tennessee by law required racial segrega-
tion in its public schools. Accordingly, five elementary
schools, two junior high schools, and one senior high
school were operated as "white" schools, and three ele-
mentary schools, one junior high school, and one senior
high school were operated as "Negro" schools. Racial
segregation extended to all aspects of school life including
faculties and staffs.
MONROE v. BOARD OF COMMISSIONERS. 453
450
Opinion of the Court.
After Brown V. Board of Education, 347 U. S. 483
(Brown I), declared such state-imposed dual systems
unconstitutional, Tennessee enacted a pupil placement
law, Tenn. Code § 49-1741 et seq. (1966). That law
continued previously enrolled pupils in their assigned
schools and vested local school boards with the exclusive
authority to approve assignment and transfer requests.
No white children enrolled in any "Negro" school under
the statute and the respondent Board granted only seven
applications of Negro children to enroll in "white"
schools, three in 1961 and four in 1962. In March 1962
the Court of Appeals for the Sixth Circuit held that the
pupil placement law was inadequate "as a plan to con-
vert a biracial system into a nonracial one." Northcross
V. Board of Education of City of Memphis, 302 F. 2d
818, 821.
In January 1963 petitioners brought this action in the
District Court for the Western District of Tennessee.
The complaint sought a declaratory judgment that re-
spondent was operating a compulsory racially segregated
school system, injunctive relief against the continued
maintenance of that system, an order directing the ad-
mission to named "white" schools of the plaintiff Negro
school children, and an order requiring respondent Board
to formulate a desegregation plan. The District Court
ordered the Board to enroll the children in the schools
in question and directed the Board to formulate and file
a desegregation plan. A plan was duly filed and, after
modifications directed by the court were incorporated,
the plan was approved in August 1963 to be effective
immediately in the elementary schools and to be grad-
ually extended over a four-year period to the junior high
schools and senior high schools. 221 F. Supp. 968.
The modified plan provides for the automatic assign-
ment of pupils living within attendance zones drawn by
the Board or school officials along geographic or "natural"
454
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
boundaries and "according to the capacity and facilities
of the [school] buildings
within the zones. Id.,
at 974. However, the plan also has the "free-transfer"
provision which was ultimately to bring this case to this
Court: Any child, after he has complied with the require-
ment that he register annually in his assigned school in
his attendance zone, may freely transfer to another school
of his choice if space is available, zone residents having
priority in cases of overcrowding. Students must pro-
vide their own transportation; the school system does not
operate school buses.
By its terms the "free-transfer" plan was first applied
in the elementary schools. After one year of operation
petitioners, joined by 27 other Negro school children,
moved in September 1964 for further relief in the District
Court, alleging respondent had administered the plan in
a racially discriminatory manner. At that time, the
three Negro elementary schools remained all Negro; and
118 Negro pupils were scattered among four of the five
formerly all-white elementary schools. After hearing
evidence, the District Court found that in two respects
the Board had indeed administered the plan in a dis-
criminatory fashion. First, it had systematically denied
Negro children-specifically the 27 intervenors-the right
to transfer from their all-Negro zone schools to schools
where white students were in the majority, although
white students seeking transfers from Negro schools to
white schools had been allowed to transfer. The court
held this to be a constitutional violation, see Goss V.
Board of Education, 373 U. S. 683, as well as a violation
of the terms of the plan itself. 244 F. Supp. 353, 359.
Second, the court found that the Board, in drawing the
lines of the geographic attendance zones, had gerry-
mandered three elementary school zones to exclude Negro
residential areas from white school zones and to include
MONROE v. BOARD OF COMMISSIONERS. 455
450
Opinion of the Court.
those areas in zones of Negro schools located farther
away. Id., at 361-362.
In the same 1964 proceeding the Board filed with the
court its proposed zones for the three junior high schools,
Jackson and Tigrett, the "white" junior high schools,
and Merry, the "Negro" junior high school. As of the
1964 school year the three schools retained their racial
identities, although Jackson did have one Negro child
among its otherwise all-white student body. The facul-
ties and staffs of the respective schools were also segre-
gated. Petitioners objected to the proposed zones on
two grounds, arguing first that they were racially gerry-
mandered because SO drawn as to assign Negro children
to the "Negro" Merry school and white children to the
"white" Jackson and Tigrett schools, and alternatively
that the plan was in any event inadequate to reorganize
the system on a nonracial basis. Petitioners, through
expert witnesses, urged that the Board be required to
adopt a "feeder system," a commonly used method of
assigning students whereby each junior high school would
draw its students from specified elementary schools.
The groupings could be made SO as to assure racially inte-
grated student bodies in all three junior high schools,
with due regard for educational and administrative con-
siderations such as building capacity and proximity of
students to the schools.
The District Court held that petitioners had not sus-
tained their allegations that the proposed junior high
school attendance zones were gerrymandered, saying
"Tigrett [white] is located in the western section,
Merry [Negro] is located in the central section and
Jackson [white] is located in the eastern section.
The zones proposed by the defendants would, gen-
erally, allocate the western section to Tigrett, the
central section to Merry, and the eastern section to
456
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
Jackson. The boundaries follow major streets or
highways and railroads. According to the school
population maps, there are a considerable number of
Negro pupils in the southern part of the Tigrett
zone, a considerable number of white pupils in the
middle and northern parts of the Merry zone, and
a considerable number of Negro pupils in the south-
ern part of the Jackson zone. The location of the
three schools in an approximate east-west line makes
it inevitable that the three zones divide the city in
three parts from north to south. While it appears
that proximity of pupils and natural boundaries are
not as important in zoning for junior highs as in
zoning for elementary schools, it does not appear
that Negro pupils will be discriminated against."
244 F. Supp., at 362.
As for the recommended "feeder system," the District
Court concluded simply that "there is no constitutional
requirement that this particular system be adopted."
Ibid. The Court of Appeals for the Sixth Circuit
affirmed except on an issue of faculty desegregation, as
to which the case was remanded for further proceedings.
380 F. 2d 955. We granted certiorari, 389 U. S. 1033,
and set the case for oral argument immediately following
Green V. County School Board, supra. Although the case
presented by the petition for certiorari concerns only the
junior high schools, the plan in its application to ele-
mentary and senior high schools is also necessarily im-
plicated since the right of "free transfer" extends to
pupils at all levels.
The principles governing determination of the ade-
quacy of the plan as compliance with the Board's re-
sponsibility to effectuate a transition to a racially non-
discriminatory system are those announced today in
Green V. County School Board, supra. Tested by those
MONROE v. BOARD OF COMMISSIONERS. 457
450
Opinion of the Court.
principles the plan is clearly inadequate. Three school
years have followed the District Court's approval of the
attendance zones for the junior high schools. Yet Merry
Junior High School was still completely a "Negro" school
in the 1967-1968 school year, enrolling some 640 Negro
pupils, or over 80% of the system's Negro junior high
school students. Not one of the "considerable number
of white pupils in the middle and northern parts of the
Merry zone" assigned there under the attendance zone
aspect of the plan chose to stay at Merry. Every one
exercised his option to transfer out of the "Negro" school.
The "white" Tigrett school seemingly had the same ex-
perience in reverse. Of the "considerable number of
Negro pupils in the southern part of the Tigrett zone"
mentioned by the District Court, only seven are enrolled
in the student body of 819; apparently all other Negro
children assigned to Tigrett chose to go elsewhere. Only
the "white" Jackson school presents a different picture;
there, 349 white children and 135 Negro children com-
pose the student body. How many of the Negro chil-
dren transferred in from the "white" Tigrett school does
not appear. The experience in the junior high schools
mirrors that of the elementary schools. Thus the three
elementary schools that were operated as Negro schools
in 1954 and continued as such until 1963 are still at-
tended only by Negroes. The five "white" schools all
have some Negro children enrolled, from as few as three
(in a student body of 781) to as many as 160 (in a stu-
dent body of 682).
This experience with "free transfer" was accurately
predicted by the District Court as early as 1963:
"In terms of numbers
the ratio of Negro to
white pupils is approximately 40-60. This figure
is, however, somewhat misleading as a measure of
the extent to which integration will actually occur
458
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
under the proposed plan. Because the homes of
Negro children are concentrated in certain areas of
the city, a plan of unitary zoning, even if prepared
without consideration of race, will result in a con-
centration of Negro children in the zones of here-
tofore 'Negro' schools and white children in the
zones of heretofore 'white' schools. Moreover, this
tendency of concentration in schools will be further
accentuated by the exercise of choice of schools
"
221 F. Supp., at 971. (Emphasis supplied.)
Plainly, the plan does not meet respondent's "affirma-
tive duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination
would be eliminated root and branch." Green V. County
School Board, supra, at 437-438. Only by dismantling the
state-imposed dual system can that end be achieved.
And manifestly, that end has not been achieved here
nor does the plan approved by the lower courts for the
junior high schools promise meaningful progress toward
doing so. "Rather than further the dismantling of the
dual system, the ["free transfer"] plan has operated
simply to burden children and their parents with a
responsibility which Brown II placed squarely on the
School Board." Green V. County School Board, supra, at
441-442. That the Board has chosen to adopt a method
achieving minimal disruption of the old pattern is evident
from its long delay in making any effort whatsoever to
desegregate, and the deliberately discriminatory manner
in which the Board administered the plan until checked
by the District Court.
The District Court approved the junior high school
attendance-zone lines in the view that as drawn they
assigned students to the three schools in a way that
was capable of producing meaningful desegregation of
all three schools. But the "free-transfer" option has
MONROE v. BOARD OF COMMISSIONERS. 459
450
Opinion of the Court.
permitted the "considerable number" of white or Negro
students in at least two of the zones to return, at the
implicit invitation of the Board, to the comfortable
security of the old, established discriminatory pattern.
Like the transfer provisions held invalid in Goss v. Board
of Education, 373 U.S. 683, 686, "[i]t is readily apparent
that the transfer [provision] lends itself to perpetuation
of segregation." While we there indicated that "free-
transfer" plans under some circumstances might be valid,
we explicitly stated that "no official transfer plan or pro-
vision of which racial segregation is the inevitable conse-
quence may stand under the Fourteenth Amendment."
Id., at 689. So it is here; no attempt has been made
to justify the transfer provision as a device designed
to meet "legitimate local problems," ibid.; rather it pat-
ently operates as a device to allow resegregation of the
races to the extent desegregation would be achieved by
geographically drawn zones. Respondent's argument in
this Court reveals its purpose. We are frankly told in
the Brief that without the transfer option it is appre-
hended that white students will flee the school system
altogether. "But it should go without saying that the
vitality of these constitutional principles cannot be al-
lowed to yield simply because of disagreement with
them." Brown II, at 300.
We do not hold that "free transfer" can have no place
in a desegregation plan. But like "freedom of choice,"
if it cannot be shown that such a plan will further rather
than delay conversion to a unitary, nonracial, nondis-
criminatory school system, it must be held unacceptable.
See Green V. County School Board, supra, at 439-441.
We conclude, therefore, that the Board "must be re-
quired to formulate a new plan and, in light of other
courses which appear open to the Board,
fashion
steps which promise realistically to convert promptly to a
460
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
system without a 'white' school and a 'Negro' school, but
just schools." Id., at 442.*
The judgment of the Court of Appeals is vacated inso-
far as it affirmed the District Court's approval of the
plan in its application to the junior high schools, and
the case is remanded for further proceedings consistent
with this opinion and with our opinion in Green V. County
School Board, supra.
It is so ordered.
*We imply no agreement with the District Court's conclusion
that under the proposed attendance zones for junior high schools
"it does not appear that Negro pupils will be discriminated against."
We note also that on the record as it now stands, it appears that
petitioners' recommended "feeder system," the feasibility of which
respondent did not challenge in the District Court, is an effective
alternative reasonably available to respondent to abolish the dual
system in the junior high schools.
ALEXANDER v. BOARD OF EDUCATION 19
Syllabus
ALEXANDER ET AL. v. HOLMES COUNTY BOARD
OF EDUCATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 632. Argued October 23, 1969-Decided October 29, 1969
Continued operation of racially segregated schools under the standard
of "all deliberate speed" is no longer constitutionally permissible.
School districts must immediately terminate dual school systems
based on race and operate only unitary school systems. The Court
of Appeals' order of August 28, 1969, delaying that court's earlier
mandate for desegregation in certain Mississippi school districts
is therefore vacated and that court is directed to enter an order,
effective immediately, that the schools in those districts be
operated on a unitary basis. While the schools are being thus
operated, the District Court may consider any amendments of the
order which may be proposed, but such amendments may become
effective only with the Court of Appeals' approval.
Vacated and remanded.
Jack Greenberg argued the cause for petitioners. With
him on the brief were James M. Nabrit III, Norman C.
Amaker, Melvyn Zarr, and Charles L. Black, Jr.
Assistant Attorney General Leonard argued the cause
for the United States. With him on the memorandum
was Solicitor General Griswold. A. F. Summer, Attorney
General of Mississippi, and John C. Satterfield argued
the cause and filed a brief for respondents other than
the United States.
Louis F. Oberdorfer argued the cause for the Lawyers'
Committee for Civil Rights Under Law as amicus curiae
urging reversal. With him on the brief were John W.
Douglas, Bethuel M. Webster, Cyrus R. Vance, Asa
Sokolow, John Schafer, John Doar, Richard C. Dinkel-
spiel, Arthur H. Dean, Lloyd N. Cutler, Bruce Bromley,
Berl I. Bernhard, Timothy B. Dyk, and Michael R.
Klein.
20
OCTOBER TERM, 1969
Per Curiam
396 U.S.
Richard B. Sobol and David Rubin filed a brief for the
National Education Association as amicus curiae urging
reversal. The Tennessee Federation for Constitutional
Government filed a brief as amicus curiae.
PER CURIAM.
This case comes to the Court on a petition for cer-
tiorari to the Court of Appeals for the Fifth Circuit.
The petition was granted on October 9, 1969, and the
case set down for early argument. The question pre-
sented is one of paramount importance, involving as it
does the denial of fundamental rights to many thousands
of school children, who are presently attending Missis-
sippi schools under segregated conditions contrary to
the applicable decisions of this Court. Against this back-
ground the Court of Appeals should have denied all mo-
tions for additional time because continued operation of
segregated schools under a standard of allowing "all
deliberate speed" for desegregation is no longer constitu-
tionally permissible. Under explicit holdings of this
Court the obligation of every school district is to ter-
minate dual school systems at once and to operate now
and hereafter only unitary schools. Griffin V. School
Board, 377 U.S. 218, 234 (1964) ; Green V. County School
Board of New Kent County, 391 U.S. 430, 438-439, 442
(1968). Accordingly,
It is hereby adjudged, ordered, and decreed:
1. The Court of Appeals' order of August 28, 1969, is
vacated, and the case is remanded to that court to
issue its decree and order, effective immediately, declaring
that each of the school districts here involved may no
longer operate a dual school system based on race or
color, and directing that they begin immediately to
operate as unitary school systems within which no person
is to be effectively excluded from any school because of
race or color.
ALEXANDER v. BOARD OF EDUCATION 21
19
Per Curiam
2. The Court of Appeals may in its discretion direct
the schools here involved to accept all or any part of
the August 11, 1969, recommendations of the Depart-
ment of Health, Education, and Welfare, with any modi-
fications which that court deems proper insofar as those
recommendations insure a totally unitary school system
for all eligible pupils without regard to race or color.
The Court of Appeals may make its determination and
enter its order without further arguments or submissions.
3. While each of these school systems is being operated
as a unitary system under the order of the Court of
Appeals, the District Court may hear and consider objec-
tions thereto or proposed amendments thereof, provided,
however, that the Court of Appeals' order shall be com-
plied with in all respects while the District Court con-
siders such objections or amendments, if any are made.
No amendment shall become effective before being passed
upon by the Court of Appeals.
4. The Court of Appeals shall retain jurisdiction to
insure prompt and faithful compliance with its order,
and may modify or amend the same as may be deemed
necessary or desirable for the operation of a unitary
school system.
5. The order of the Court of Appeals dated August 28,
1969, having been vacated and the case remanded for
proceedings in conformity with this order, the judgment
shall issue forthwith and the Court of Appeals is re-
quested to give priority to the execution of this judgment
as far as possible and necessary.
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1970
SWANN ET AL. v. CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 281. Argued October 12, 1970-Decided April 20, 1971*
The Charlotte-Mecklenburg school system, which includes the city of
Charlotte, North Carolina, had more than 84,000 students in 107
schools in the 1968-1969 school year. Approximately 29%
(24,000) of the pupils were Negro, about 14,000 of whom attended
21 schools that were at least 99% Negro. This resulted from
a desegregation plan approved by the District Court in 1965, at
the commencement of this litigation. In 1968 petitioner Swann
moved for further relief based on Green V. County School Board,
391 U.S. 430, which required school boards to "come forward with
a plan that promises realistically to work
now
until it
is clear that state-imposed segregation has been completely re-
moved." The District Court ordered the school board in April
1969 to provide a plan for faculty and student desegregation.
Finding the board's submission unsatisfactory, the District Court
appointed an expert to submit a desegregation plan. In February
1970, the expert and the board presented plans, and the court
adopted the board's plan, as modified, for the junior and senior
high schools, and the expert's proposed plan for the elementary
schools. The Court of Appeals affirmed the District Court's
order as to faculty desegregation and the secondary school plans,
*Together with No. 349, Charlotte-Mecklenburg Board of Educa-
tion et al. V. Swann et al., also on certiorari to the same court.
1
2
OCTOBER TERM, 1970
Syllabus
402 U.S.
but vacated the order respecting elementary schools, fearing that
the provisions for pairing and grouping of elementary schools
would unreasonably burden the pupils and the board. The case
(1)
was remanded to the District Court for reconsideration and sub-
gate
schools
mission of further plans. This Court granted certiorari and di-
must
rected reinstatement of the District Court's order pending further
whole
proceedings in that court. On remand the District Court received
two new plans, and ordered the board to adopt a plan, or the
in
expert's plan would remain in effect. After the board "acquiesced"
22-25
in the expert's plan, the District Court directed that it remain in
(2)
effect. Held:
Tof
1. Today's objective is to eliminate from the public schools all
vestiges of state-imposed segregation that was held violative of
equal protection guarantees by Brown V. Board of Education, 347
the
court
U.S. 483, in 1954. P. 15.
or
put
2. In default by the school authorities of their affirmative obli-
gation to proffer acceptable remedies, the district courts have
broad power to fashion remedies that will assure unitary school
be effective
systems. P. 16.
dent true
3. Title IV of the Civil Rights Act of 1964 does not restrict or
be
withdraw from the federal courts their historic equitable remedial
powers. The proviso in 42 U.S. C. § 2000c-6 was designed simply
to foreclose any interpretation of the Act as expanding the existing
powers of the federal courts to enforce the Equal Protection Clause.
Pp. 16-18.
4. Policy and practice with regard to faculty, staff, transporta-
tion, extracurricular activities, and facilities are among the most
important indicia of a segregated system, and the first remedial
responsibility of school authorities is to eliminate invidious racial
distinctions in those respects. Normal administrative practice
should then produce schools of like quality, facilities, and staffs.
Pp. 18-19.
5. The Constitution does not prohibit district courts from using
their equity power to order assignment of teachers to achieve a
particular degree of faculty desegregation. United States V. Mont-
gomery County Board of Education, 395 U. S. 225, was properly
followed by the lower courts in this case. Pp. 19-20.
6. In devising remedies to eliminate legally imposed segregation,
local authorities and district courts must see to it that future
of
ame
school construction and abandonment are not used and do not
serve to perpetuate or re-establish a dual system. Pp. 20-21.
FORD
-
SWANN v. BOARD OF EDUCATION
3
1
Syllabus
7. Four problem areas exist on the issue of student assignment:
(1) Racial quotas. The constitutional command to desegre-
gate schools does not mean that every school in the community
must always reflect the racial composition of the system as a
whole; here the District Court's very limited use of the racial
ratio-not as an inflexible requirement, but as a starting point
in shaping a remedy-was within its equitable discretion. Pp.
22-25.
(2) One-race schools. While the existence of a small number
of one-race, or virtually one-race, schools does not in itself denote
a system that still practices segregation by law, the court should
scrutinize such schools and require the school authorities to satisfy
the court that the racial composition does not result from present
or past discriminatory action on their part. Pp. 25-26.
An optional majority-to-minority transfer provision has long
been recognized as a useful part of a desegregation plan, and to
be effective such arrangement must provide the transferring stu-
dent free transportation and available space in the school to which
he desires to move. Pp. 26-27.
(3) Attendance zones. The remedial altering of attendance
zones is not, as an interim corrective measure, beyond the remedial
powers of a district court. A student assignment plan is not
acceptable merely because it appears to be neutral, for such a
plan may fail to counteract the continuing effects of past school
segregation. The pairing and grouping of noncontiguous zones is
a permissible tool; judicial steps going beyond contiguous zones
should be examined in light of the objectives to be sought. No
rigid rules can be laid down to govern conditions in different
localities. Pp. 27-29.
(4) Transportation. The District Court's conclusion that
assignment of children to the school nearest their home serving
their grade would not effectively dismantle the dual school system
is supported by the record, and the remedial technique of requiring
bus transportation as a tool of school desegregation was within
that court's power to provide equitable relief. An objection to
transportation of students may have validity when the time or
distance of travel is so great as to risk either the health of the
children or significantly impinge on the educational process: limits
on travel time will vary with many factors, but probably with
none more than the age of the students. Pp. 29-31.
4
OCTOBER TERM, 1970
SWANN V. I
Syllabus
402 U.S.
1
Opin
8. Neither school authorities nor district courts are constitu-
Jr., Charles R. Jonas,
tionally required to make year-by-year adjustments of the racial
Classroom Teachers
composition of student bodies once a unitary system has been
achieved. Pp. 31-32.
Mecklenburg School Sy
431 F. 2d 138, affirmed as to those parts in which it affirmed the
Jr., for Mrs. H. W. Cu
District Court's judgment. The District Court's order of Au-
of Education of the I
gust 7, 1970, is also affirmed.
trict; by Jack Petree
Memphis City Schools
BURGER, C. J., delivered the opinion for a unanimous Court.
Jackson Chamber of C
Julius LeVonne Chambers and James M. Nabrit III
J. Pollak, Benjamin W
argued the cause for petitioners in No. 281 and respond-
National Education As
ents in No. 349. With them on the briefs were Jack
Richard B. Sobol, and ,
Greenberg, Norman J. Chachkin, C. O. Pearson, and
Negro College Fund, I
Anthony G. Amsterdam.
Concerned Citizens A
Conley, Floyd B. Mch
William J. Wagonner and Benjamin S. Horack argued
the Congress of Racial
the cause and filed briefs for respondents in No. 281 and
eration for Constitution
petitioners in No. 349.
C. Cramer, pro se, and 4
Solicitor General Griswold argued the cause for the
W. Watson et al., for M
United States as amicus curiae in both cases. With him
Bennett, pro se, Jaman
on the brief was Assistant Attorney General Leonard.
Buckman for Charles E.
Briefs of amici curiae in No. 281 were filed by Earl
and M. T. Bohannon, J
Faircloth, Attorney General, Robert J. Kelly, Deputy
William B. Spong
Jr.,
Attorney General, Ronald W. Sabo, Assistant Attorney
MR. CHIEF Jearica
General, and Rivers Buford for the State of Florida; by
the Court.
Andrew P. Miller, Attorney General, William G. Broad-
dus and Theodore J. Markow, Assistant Attorneys Gen-
We granted certi
issues as to the dutine
eral, Lewis F. Powell, Jr., John W. Riely, and Guy K.
of powers of federal
Tower for the Commonwealth of Virginia; by Claude R.
to eliminate racially
Kirk, Jr., pro se, and Gerald Mager for Claude R. Kirk,
and maintained by
Jr., Governor of Florida; by W. F. Womble for the
Education, 347 L.
Winston-Salem/Forsyth County Board of Education; by
This case and Lime
Raymond B. Witt, Jr., and Eugene N. Collins for the
ing a long history of
Chattanooga Board of Education; by Kenneth W. Cleary
for the School Board of Manatee County, Florida; by
:
McDanici
-
W. Crosby Few and John M. Allison for the School
School
Board of Hillsborough County, Florida; by Sam J. Ervin,
Moore
r.
SWANN v. BOARD OF EDUCATION
5
1
Opinion of the Court
Jr., Charles R. Jonas, and Ernest F. Hollings for the
Classroom Teachers Association of the Charlotte-
Mecklenburg School System, Inc.; by Mark Wells White,
Jr., for Mrs. H. W. Cullen et al., members of the Board
of Education of the Houston Independent School Dis-
trict; by Jack Petree for the Board of Education of
Memphis City Schools; by Sherwood W. Wise for the
Jackson Chamber of Commerce, Inc., et al.; by Stephen
J. Pollak, Benjamin W. Boley, and David Rubin for the
National Education Association; by William L. Taylor,
Richard B. Sobol, and Joseph L. Rauh, Jr., for the United
Negro College Fund, Inc., et al.; by Owen H. Page for
Concerned Citizens Association, Inc.; by Charles S.
Conley, Floyd B. McKissick, and Charles S. Scott for
the Congress of Racial Equality; by the Tennessee Fed-
eration for Constitutional Government et al.; by William
C. Cramer, pro se, and Richard B. Peet, joined by Albert
W. Watson et al., for William C. Cramer; by Charles E.
Bennett, pro se, James C. Rinaman, Jr., and Yardley D.
Buckman for Charles E. Bennett; by Calvin H. Childress
and M. T. Bohannon, Jr., for David E. Allgood et al.; by
William B. Spong, Jr., and by Newton Collier Estes.
MR. CHIEF JUSTICE BURGER delivered the opinion of
the Court.
We granted certiorari in this case to review important
issues as to the duties of school authorities and the scope
of powers of federal courts under this Court's mandates
to eliminate racially separate public schools established
and maintained by state action. Brown V. Board of
Education, 347 U. S. 483 (1954) (Brown I).
This case and those argued with it 1 arose in States hav-
ing a long history of maintaining two sets of schools in a
1 McDaniel V. Barresi, No. 420, post, p. 39; Davis V. Board of
School Commissioners of Mobile County, No. 436, post, p. 33;
Moore V. Charlotte-Mecklenburg Board of Education, No. 444, post,
6
OCTOBER TERM, 1970
SWANN
Opinion of the Court
402 U.S.
1
single school system deliberately operated to carry out a
June 1969 there
governmental policy to separate pupils in schools solely
dents in the syste
on the basis of race. That was what Brown V. Board of
within the city
Education was all about. These cases present us with
21,000-approxima
the problem of defining in more precise terms than here-
21 schools which W
tofore the scope of the duty of school authorities and
99% Negro
district courts in implementing Brown I and the man-
This situation: ca
date: to eliminate dual systems and establish unitary
approved by the
systems at once. Meanwhile district courts and courts
of the present lit
of appeals have struggled in hundreds of cases with a
(WDNC), aff'd, 36
multitude and variety of problems under this Court's
geographic zoning
general directive. Understandably, in an area of evolv-
present proceeding
ing remedies, those courts had to improvise and experi-
petitioner Swann's
ment without detailed or specific guidelines. This Court,
Green V: County S
in Brown I, appropriately dealt with the large consti-
its companion case:
tutional principles; other federal courts had to grapple
the system fell sh
with the flinty, intractable realities of day-to-day imple-
system that those
mentation of those constitutional commands. Their
The District Co
efforts, of necessity, embraced a process of "trial and
ceived voluminous
error," and our effort to formulate guidelines must take
tain actions of th.
into account their experience.
the court also four
and county resulte
I
government
The Charlotte-Mecklenburg school system, the 43d
School board actior
largest in the Nation, encompasses the city of Charlotte
by locating schools
and surrounding Mecklenburg County, North Carolina.
the size of the schs
The area is large-550 square miles-spanning roughly
mediate neighborhs
22 miles east-west and 36 miles north-south. During the
These findingsower
1968-1969 school year the system served more than 84,000
of Appeals. of
pupils in 107 schools. Approximately 71% of the
In April:1969
pupils were found to be white and 29% Negro. As of
board to come for
student desegregat
p. 47; North Carolina State Board of Education V. Swann, No. 498,
by the court in Jun
post, p. 43. For purposes of this opinion the cross-petitions in
Nos. 281 and 349 are treated as a single case and will be referred
2 Raney V. Board
to as "this case."
Monroe V. Board of (
SWANN v. BOARD OF EDUCATION
7
1
Opinion of the Court
June 1969 there were approximately 24,000 Negro stu-
dents in the system, of whom 21,000 attended schools
within the city of Charlotte. Two-thirds of those
21,000-approximately 14,000 Negro students-attended
21 schools which were either totally Negro or more than
99% Negro.
This situation came about under a desegregation plan
approved by the District Court at the commencement
of the present litigation in 1965, 243 F. Supp. 667
(WDNC), aff'd, 369 F. 2d 29 (CA4 1966), based upon
geographic zoning with a free-transfer provision. The
present proceedings were initiated in September 1968 by
petitioner Swann's motion for further relief based on
Green V: County School Board, 391 U. S. 430 (1968), and
its companion cases.2 All parties now agree that in 1969
the system fell short of achieving the unitary school
system that those cases require.
The District Court held numerous hearings and re-
ceived voluminous evidence. In addition to finding cer-
tain actions of the school board to be discriminatory,
the court also found that residential patterns in the city
and county resulted in part from federal, state, and local
government action other than school board decisions.
School board action based on these patterns, for example,
by locating schools in Negro residential areas and fixing
the size of the schools to accommodate the needs of im-
mediate neighborhoods, resulted in segregated education.
These findings were subsequently accepted by the Court
of Appeals.
In April 1969 the District Court ordered the school
board to come forward with a plan for both faculty and
student desegregation. Proposed plans were accepted
by the court in June and August 1969 on an interim basis
2 Raney V. Board of Education, 391 U. S. 443 (1968), and
Monroe V. Board of Commissioners, 391 U. S. 450 (1968).
8
OCTOBER TERM, 1970
SWA
Opinion of the Court
402 U.S.
1
only, and the board was ordered to file a third plan by
The board pl
November 1969. In November the board moved for an
lied entirely up
extension of time until February 1970, but when that
More than half
was denied the board submitted a partially completed
in nine schools
plan. In December 1969 the District Court held that
mately half of
the board's submission was unacceptable and appointed
signed to schoo
an expert in education administration, Dr. John Finger,
The Finger 1
to prepare a desegregation plan. Thereafter in Feb-
appointed expe
ruary 1970, the District Court was presented with two
zoning plan for
alternative pupil assignment plans-the finalized "board
it required the
plan" and the "Finger plan."
transported from
The Board Plan. As finally submitted, the school
to the nearly al
board plan closed seven schools and reassigned their
The Finger P
pupils. It restructured school attendance zones to
much of the re
achieve greater racial balance but maintained existing
the creation of
grade structures and rejected techniques such as pairing
lite plan, inner-
and clustering as part of a desegregation effort. The
tendance some
plan created a single athletic league, eliminated the pre-
junior high sch
viously racial basis of the school bus system, provided
every junior M
racially mixed faculties and administrative staffs, and
The Finger
modified its free-transfer plan into an optional majority-
in its handling
to-minority transfer system.
Rather than rul
The board plan proposed substantial assignment of
Finger
Negroes to nine of the system's 10 high schools, produc-
technique
ing 17% to 36% Negro population in each. The pro-
out the
jected Negro attendance at the 10th school, Independence,
The
was 2%. The proposed attendance zones for the high
schools were typically shaped like wedges of a pie, extend-
by
ing outward from the center of the city to the suburban
and rural areas of the county in order to afford residents
main
of the center city area access to outlying schools.
In
its
As for junior high schools, the board plan rezoned the
in
the
21 school areas SO that in 20 the Negro attendance would
stated:
range from 0% to 38%. The other school, located in
"Frod
the heart of the Negro residential area, was left with an
If
the
as
de
d
enrollment of 90% Negro.
SWANN v. BOARD OF EDUCATION
9
1
Opinion of the Court
The board plan with respect to elementary schools re-
lied entirely upon gerrymandering of geographic zones.
More than half of the Negro elementary pupils were left
in nine schools that were 86% to 100% Negro; approxi-
mately half of the white elementary pupils were as-
signed to schools 86% to 100% white.
The Finger Plan. The plan submitted by the court-
appointed expert, Dr. Finger, adopted the school board
zoning plan for senior high schools with one modification:
it required that an additional 300 Negro students be
transported from the Negro residential area of the city
to the nearly all-white Independence High School.
The Finger plan for the junior high schools employed
much of the rezoning plan of the board, combined with
the creation of nine "satellite" zones.³ Under the satel-
lite plan, inner-city Negro students were assigned by at-
tendance zones to nine outlying predominately white
junior high schools, thereby substantially desegregating
every junior high school in the system.
The Finger plan departed from the board plan chiefly
in its handling of the system's 76 elementary schools.
Rather than relying solely upon geographic zoning, Dr.
Finger proposed use of zoning, pairing, and grouping
techniques, with the result that student bodies through-
out the system would range from 9% to 38% Negro.4
The District Court described the plan thus:
"Like the board plan, the Finger plan does as much
by rezoning school attendance lines as can reasonably
3 A "satellite zone" is an area which is not contiguous with the
main attendance zone surrounding the school.
4 In its opinion and order of December 1, 1969, later incorporated
in the order appointing Dr. Finger as consultant, the District Court
stated:
"Fixed ratios of pupils in particular schools will not be set.
If the board in one of its three tries had presented a plan for
desegregation, the court would have sought ways to approve varia-
10
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
be accomplished. However, unlike the board plan,
it does not stop there. It goes further and desegre-
gates all the rest of the elementary schools by the
technique of grouping two or three outlying schools
with one black inner city school; by transporting
black students from grades one through four to the
outlying white schools; and by transporting white
students from the fifth and sixth grades from the
outlying white schools to the inner city black school."
Under the Finger plan, nine inner-city Negro schools
were grouped in this manner with 24 suburban white
schools.
On February 5, 1970, the District Court adopted the
board plan, as modified by Dr. Finger, for the junior and
senior high schools. The court rejected the board ele-
mentary school plan and adopted the Finger plan as
presented. Implementation was partially stayed by the
Court of Appeals for the Fourth Circuit on March 5, and
this Court declined to disturb the Fourth Circuit's order,
397 U. S. 978 (1970).
On appeal the Court of Appeals affirmed the District
Court's order as to faculty desegregation and the second-
ary school plans, but vacated the order respecting ele-
mentary schools. While agreeing that the District Court
properly disapproved the board plan concerning these
schools, the Court of Appeals feared that the pairing and
grouping of elementary schools would place an unrea-
sonable burden on the board and the system's pupils.
The case was remanded to the District Court for recon-
sideration and submission of further plans. 431 F. 2d
tions in pupil ratios. In default of any such plan from the school
board, the court will start with the thought
that efforts should
be made to reach a 71-29 ratio in the various schools SO that there
will be no basis for contending that one school is racially different
from the others, but to understand that variations from that norm
may be unavoidable." 306 F. Supp. 1299, 1312.
SWANN v. BOARD OF EDUCATION
11
1
Opinion of the Court
138. This Court granted certiorari, 399 U. S. 926, and
directed reinstatement of the District Court's order pend-
ing further proceedings in that court.
On remand the District Court received two new plans
for the elementary schools: a plan prepared by the
United States Department of Health, Education, and
Welfare (the HEW plan) based on contiguous grouping
and zoning of schools, and a plan prepared by four mem-
bers of the nine-member school board (the minority plan)
achieving substantially the same results as the Finger
plan but apparently with slightly less transportation. A
majority of the school board declined to amend its pro-
posal. After a lengthy evidentiary hearing the District
Court concluded that its own plan (the Finger plan), the
minority plan, and an earlier draft of the Finger plan
were all reasonable and acceptable. It directed the board
to adopt one of the three or in the alternative to come
forward with a new, equally effective plan of its own;
the court ordered that the Finger plan would remain in
effect in the event the school board declined to adopt a
new plan. On August 7, the board indicated it would
"acquiesce" in the Finger plan, reiterating its view that
the plan was unreasonable. The District Court, by order
dated August 7, 1970, directed that the Finger plan re-
main in effect.
II
Nearly 17 years ago this Court held, in explicit terms,
that state-imposed segregation by race in public schools
denies equal protection of the laws. At no time has the
Court deviated in the slightest degree from that holding
or its constitutional underpinnings. None of the parties
before us challenges the Court's decision of May 17, 1954,
that
"in the field of public education the doctrine of
'separate but equal' has no place. Separate educa-
tional facilities are inherently unequal. Therefore,
419-882 72 6
12
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
we hold that the plaintiffs and others similarly situ-
ated
are, by reason of the segregation com-
plained of, deprived of the equal protection of the
laws guaranteed by the Fourteenth Amendment.
"Because these are class actions, because of the
wide applicability of this decision, and because of
the great variety of local conditions, the formulation
of decrees in these cases presents problems of con-
siderable complexity." Brown V. Board of Educa-
tion, supra, at 495.
None of the parties before us questions the Court's
1955 holding in Brown II, that
"School authorities have the primary responsibility
for elucidating, assessing, and solving these prob-
lems; courts will have to consider whether the action
of school authorities constitutes good faith imple-
mentation of the governing constitutional principles.
Because of their proximity to local conditions and
the possible need for further hearings, the courts
which originally heard these cases can best perform
this judicial appraisal. Accordingly, we believe it
appropriate to remand the cases to those courts.
"In fashioning and effectuating the decrees, the
courts will be guided by equitable principles. Tra-
ditionally, equity has been characterized by a prac-
tical flexibility in shaping its remedies and by a
facility for adjusting and reconciling public and
private needs. These cases call for the exercise of
these traditional attributes of equity power. At
stake is the personal interest of the plaintiffs in ad-
mission to public schools as soon as practicable on a
nondiscriminatory basis. To effectuate this inter-
est may call for elimination of a variety of obstacles
in making the transition to school systems operated
in accordance with the constitutional principles set
forth in our May 17, 1954, decision. Courts of
SWANN v. BOARD OF EDUCATION
13
1
Opinion of the Court
equity may properly take into account the public
interest in the elimination of such obstacles in a
systematic and effective manner. But it should go
without saying that the vitality of these constitu-
tional principles cannot be allowed to yield simply
because of disagreement with them." Brown V.
Board of Education, 349 U. S. 294, 299-300 (1955).
Over the 16 years since Brown II, many difficulties
were encountered in implementation of the basic con-
stitutional requirement that the State not discriminate
between public school children on the basis of their race.
Nothing in our national experience prior to 1955 prepared
anyone for dealing with changes and adjustments of the
magnitude and complexity encountered since then. De-
liberate resistance of some to the Court's mandates has
impeded the good-faith efforts of others to bring school
systems into compliance. The detail and nature of these
dilatory tactics have been noted frequently by this Court
and other courts.
By the time the Court considered Green V. County
School Board, 391 U. S. 430, in 1968, very little prog-
ress had been made in many areas where dual school
systems had historically been maintained by operation
of state laws. In Green, the Court was confronted
with a record of a freedom-of-choice program that the
District Court had found to operate in fact to pre-
serve a dual system more than a decade after Brown II.
While acknowledging that a freedom-of-choice concept
could be a valid remedial measure in some circumstances,
its failure to be effective in Green required that:
"The burden on a school board today is to come for-
ward with a plan that promises realistically to
work
now
until it is clear that state-imposed
segregation has been completely removed." Green,
supra, at 439.
14
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
This was plain language, yet the 1969 Term of Court
brought fresh evidence of the dilatory tactics of many
school authorities. Alexander V. Holmes County Board
of Education, 396 U. S. 19, restated the basic obligation
asserted in Griffin V. School Board, 377 U. S. 218, 234
(1964), and Green, supra, that the remedy must be im-
plemented forthwith.
The problems encountered by the district courts and
courts of appeals make plain that we should now try to
amplify guidelines, however incomplete and imperfect,
for the assistance of school authorities and courts.5 The
failure of local authorities to meet their constitutional
obligations aggravated the massive problem of convert-
ing from the state-enforced discrimination of racially
separate school systems. This process has been rendered
more difficult by changes since 1954 in the structure and
patterns of communities, the growth of student popula-
tion,⁶ movement of families, and other changes, some
of which had marked impact on school planning, some-
times neutralizing or negating remedial action before it
was fully implemented. Rural areas accustomed for
half a century to the consolidated school systems imple-
mented by bus transportation could make adjustments
more readily than metropolitan areas with dense and
shifting population, numerous schools, congested and
complex traffic patterns.
5 The necessity for this is suggested by the situation in the Fifth
Circuit where 166 appeals in school desegregation cases were heard
between December 2, 1969, and September 24, 1970.
6 Elementary public school population (grades 1-6) grew from
17,447,000 in 1954 to 23,103,000 in 1969; secondary school popula-
tion (beyond grade 6) grew from 11,183,000 in 1954 to 20,775,000 in
1969. Digest of Educational Statistics, Table 3, Office of Education
Pub. 10024-64; Digest of Educational Statistics, Table 28, Office of
Education Pub. 10024-70.
SWANN v. BOARD OF EDUCATION
15
1
Opinion of the Court
III
The objective today remains to eliminate from the
public schools all vestiges of state-imposed segregation.
Segregation was the evil struck down by Brown I as
contrary to the equal protection, guarantees of the Con-
stitution. That was the violation sought to be corrected
by the remedial measures of Brown II. That was the
basis for the holding in Green that school authorities
are "clearly charged 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 437-438.
If school authorities fail in their affirmative obligations
under these holdings, judicial authority may be invoked.
Once a right and a violation have been shown, the scope
of a district court's equitable powers to remedy past
wrongs is broad, for breadth and flexibility are inherent
in equitable remedies.
"The essence of equity jurisdiction has been the
power of the Chancellor to do equity and to mould
each decree to the necessities of the particular case.
Flexibility rather than rigidity has distinguished it.
The qualities of mercy and practicality have made
equity the instrument for nice adjustment and recon-
ciliation between the public interest and private
needs as well as between competing private claims."
Hecht Co. V. Bowles, 321 U. S. 321, 329-330 (1944),
cited in Brown II, supra, at 300.
This allocation of responsibility once made, the Court
attempted from time to time to provide some guidelines
for the exercise of the district judge's discretion and
for the reviewing function of the courts of appeals. How-
ever, a school desegregation case does not differ funda-
mentally from other cases involving the framing of
16
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
1
equitable remedies to repair the denial of a constitutional
tutes
right. The task is to correct, by a balancing of the in-
efforts,
dividual and collective interests, the condition that of-
transition
fends the Constitution.
Attorney
In seeking to define even in broad and general terms
federal
how far this remedial power extends it is important to
"desegre
remember that judicial powers may be exercised only on
the basis of a constitutional violation. Remedial judi-
cial authority does not put judges automatically in the
shoes of school authorities whose powers are plenary.
but
Judicial authority enters only when local authority
defaults.
School authorities are traditionally charged with broad
Section
power to formulate and implement educational policy
stitute
and might well conclude, for example, that in order
to prepare students to live in a pluralistic society
each school should have a prescribed ratio of Negro to
white students reflecting the proportion for the district
as a whole. To do this as an educational policy is within
the broad discretionary powers of school authorities; ab-
sent a finding of a constitutional violation, however, that
would not be within the authority of a federal court.
As with any equity case, the nature of the violation de-
termines the scope of the remedy. In default by the
0
school authorities of their obligation to proffer acceptable
sur
remedies, a district court has broad power to fashion a
Actor
remedy that will assure a unitary school system.
The school authorities argue that the equity powers of
federal district courts have been limited by Title IV of
the Civil Rights Act of 1964, 42 U.S. C. § 2000c. The
language and the history of Title IV show that it was
enacted not to limit but to define the role of the Federal
Government in the implementation of the Brown I de-
cision. It authorizes the Commissioner of Education to
Four
provide technical assistance to local boards in the prepara-
tion of desegregation plans, to arrange "training insti-
FORD
SWANN v. BOARD OF EDUCATION
17
1
Opinion of the Court
tutes" for school personnel involved in desegregation
efforts, and to make grants directly to schools to ease the
transition to unitary systems. It also authorizes the
Attorney General, in specified circumstances, to initiate
federal desegregation suits. Section 2000c (b) defines
"desegregation" as it is used in Title IV:
"Desegregation" means the assignment of students
to public schools and within such schools without
regard to their race, color, religion, or national origin,
but 'desegregation' shall not mean the assignment of
students to public schools in order to overcome racial
imbalance."
Section 2000c-6, authorizing the Attorney General to in-
stitute federal suits, contains the following proviso:
"nothing herein shall empower any official or court
of the United States to issue any order seeking to
achieve a racial balance in any school by requiring
the transportation of pupils or students from one
school to another or one school district to another
in order to achieve such racial balance, or otherwise
enlarge the existing power of the court to insure
compliance with constitutional standards."
On their face, the sections quoted purport only to in-
sure that the provisions of Title IV of the Civil Rights
Act of 1964 will not be read as granting new powers. The
proviso in § 2000c-6 is in terms designed to foreclose any
interpretation of the Act as expanding the existing powers
of federal courts to enforce the Equal Protection Clause.
There is no suggestion of an intention to restrict those
powers or withdraw from courts their historic equitable
remedial powers. The legislative history of Title IV
indicates that Congress was concerned that the Act
might be read as creating a right of action under the
Fourteenth Amendment in the situation of so-called "de
facto segregation," where racial imbalance exists in the
18
OCTOBER TERM, 1970
SWANN
Opinion of the Court
402 U.S.
1 If COM
schools but with no showing that this was brought about
tive practice
by discriminatory action of state authorities. In short,
facilitie
and
there is nothing in the Act that provides us material
however
assistance in answering the question of remedy for state-
construct
imposed segregation in violation of Brown I. The basis
In the
of our decision must be the prohibition of the Fourteenth
school-board
that
Amendment that no State shall "deny to any person
teachers
within its jurisdiction the equal protection of the laws."
argues that
using their
IV
to
We
We turn now to the problem of defining with more
In Unite
particularity the responsibilities of school authorities in
Educatio
desegregating a state-enforced dual school system in light
as
a
of the Equal Protection Clause. Although the several
a
ratio
of
related cases before us are primarily. concerned with prob-
the
same
lems of student assignment, it may be helpful to begin
cated on
with a brief discussion of other aspects of the process.
In Green, we pointed out that existing policy and prac-
tive
tice with regard to faculty, staff, transportation, extra-
curricular activities, and facilities were among the most
important indicia of a segregated system. 391 U.S., at
435. 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.
Court 0
When a system has been dual in these respects, the
it
first remedial responsibility of school authorities is to
sub
eliminate invidious racial distinctions. With respect to
such matters as transportation, supporting personnel, and
extracurricular activities, no more than this may be nec-
ratio
essary. Similar corrective action must be taken with
not
be
regard to the maintenance of buildings and the distribu-
portions. 14.
tion of equipment. In these areas, normal administra-
SWANN v. BOARD OF EDUCATION
19
1
Opinion of the Court
tive practice should produce schools of like quality,
facilities, and staffs. Something more must be said,
however, as to faculty assignment and new school
construction.
In the companion Davis case, post, p. 33, the Mobile
school board has argued that the Constitution requires
that teachers be assigned on a "color blind" basis. It also
argues that the Constitution prohibits district courts from
using their equity power to order assignment of teachers
to achieve a particular degree of faculty desegregation.
We reject that contention.
In United States V. Montgomery County Board of
Education, 395 U. S. 225 (1969), the District Court set
as a goal a plan of faculty assignment in each school with
a ratio of white to Negro faculty members substantially
the same throughout the system. This order was predi-
cated on the District Court finding that:
"The evidence does not reflect any real administra-
tive problems involved in immediately desegregating
the substitute teachers, the student teachers, the
night school faculties, and in the evolvement of a
really legally adequate program for the substantial
desegregation of the faculties of all schools in the
system commencing with the school year 1968-69."
Quoted at 395 U. S., at 232.
The District Court in Montgomery then proceeded to
set an initial ratio for the whole system of at least two
Negro teachers out of each 12 in any given school. The
Court of Appeals modified the order by eliminating what
it regarded as "fixed mathematical" ratios of faculty and
substituted an initial requirement of "substantially or
approximately" a five-to-one ratio. With respect to the
future, the Court of Appeals held that the numerical
ratio should be eliminated and that compliance should
not be tested solely by the achievement of specified pro-
portions. Id., at 234.
20
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
1
We reversed the Court of Appeals and restored the
the
District Court's order in its entirety, holding that the
are
order of the District Judge
city
"was adopted in the spirit of this Court's opinion in
Green
in that his plan 'promises realistically to
work, and promises realistically to work now.' The
modifications ordered by the panel of the Court
of Appeals, while of course not intended to do so,
would, we think, take from the order some of its
capacity to expedite, by means of specific commands,
the day when a completely unified, unitary, nondis-
criminatory school system becomes a reality instead
by
of a hope.
We also believe that under all the
circumstances of this case we follow the original plan
outlined in Brown II
by accepting the more
specific and expeditious order of [District] Judge
borl
Johnson
395 U. S., at 235-236 (emphasis
in original).
of
The principles of Montgomery have been properly fol-
dent
lowed by the District Court and the Court of Appeals
hoo
in this case.
The construction of new schools and the closing of old
ones are two of the most important functions of local
school authorities and also two of the most complex.
They must decide questions of location and capacity in
light of population growth, finances, land values, site
availability, through an almost endless list of factors to
be considered. The result of this will be a decision
which, when combined with one technique or another
of student assignment, will determine the racial composi-
do
tion of the student body in each school in the system.
Over the long run, the consequences of the choices will
be far reaching. People gravitate toward school facili-
ties, just as schools are located in response to the needs
of people. The location of schools may thus influence
SWANN v. BOARD OF EDUCATION
21
1
Opinion of the Court
the patterns of residential development of a metropolitan
area and have important impact on composition of inner-
city neighborhoods.
In the past, choices in this respect have been used as
a potent weapon for creating or maintaining a state-
segregated school system. In addition to the classic
pattern of building schools specifically intended for Negro
or white students, school authorities have sometimes,
since Brown, closed schools which appeared likely to
become racially mixed through changes in neighborhood
residential patterns. This was sometimes accompanied
by building new schools in the areas of white suburban
expansion farthest from Negro population centers in
order to maintain the separation of the races with a
minimum departure from the formal principles of "neigh-
borhood zoning." Such a policy does more than simply
influence the short-run composition of the student body
of a new school. It may well promote segregated resi-
dential patterns which, when combined with "neighbor-
hood zoning," further lock the school system into the
mold of separation of the races. Upon a proper showing
a district court may consider this in fashioning a remedy.
In ascertaining the existence of legally imposed school
segregation, the existence of a pattern of school construc-
tion and abandonment is thus a factor of great weight.
In devising remedies where legally imposed segregation
has been established, it is the responsibility of local
authorities and district courts to see to it that future
school construction and abandonment are not used and
do not serve to perpetuate or re-establish the dual sys-
tem. When necessary, district courts should retain
jurisdiction to assure that these responsibilities are
carried out. Cf. United States V. Board of Public In-
struction, 395 F. 2d 66 (CA5 1968); Brewer V. School
Board, 397 F. 2d 37 (CA4 1968).
22
OCTOBER TERM, 1970
SWANN
of
to
Opinion of the Court
402 U.S.
1
impact on other
V
reach in this case the
The central issue in this case is that of student assign-
school: segregation is
ment, and there are essentially four problem areas:
state action, without
(1) to what extent racial balance or racial quotas may
school authorities is
be used as an implement in a remedial order to correct
remedial action by
a previously segregated system;
case does not present
(2) whether every all-Negro and all-white school must
not decide it
be eliminated as an indispensable part of a remedial
Our objective in
process of desegregation;
these cases is to are
(3) what the limits are, if any, on the rearrangement
pupil of is racial
of school districts and attendance zones, as a remedial
indirectly, on
measure; and
embrace all the proble
(4) what the limits are, if any, on the use of transpor-
those problems contri
tation facilities to correct state-enforced racial school
centrations in some
segregation.
In this case it
(1) Racial Balances or Racial Quotas.
imposed a racial
The constant theme and thrust of every holding from
individual schools.
Brown I to date is that state-enforced separation of races
actually achieved
in public schools is discrimination that violates the Equal
tends to blunt that
Protection Clause. The remedy commanded was to dis-
of the District Cours of
mantle dual school systems.
court directing
We are concerned in these cases with the elimination
"that éfforts
of the discrimination inherent in the dual school systems,
in the varior
not with myriad factors of human existence which can
for contend
cause discrimination in a multitude of ways on racial,
from the
religious, or ethnic grounds. The target of the cases
operated
from Brown I to the present was the dual school system.
student
The elimination of racial discrimination in public schools
[should
be
is a large task and one that should not be retarded by
as practin
efforts to achieve broader purposes lying beyond the
levels have
jurisdiction of school authorities. One vehicle can carry
white
only a limited amount of baggage. It would not serve
The District
the important objective of Brown I to seek to use school
tion "from that
desegregation cases for purposes beyond their scope, al-
tains
intimations
though desegregation of schools ultimately will have
SWANN v. BOARD OF EDUCATION
23
1
Opinion of the Court
impact on other forms of discrimination. We do not
reach in this case the question whether a showing that
school segregation is a consequence of other types of
state action, without any discriminatory action by the
school authorities, is a constitutional violation requiring
remedial action by a school desegregation decree. This
case does not present that question and we therefore do
not decide it.
Our objective in dealing with the issues presented by
these cases is to see that school authorities exclude no
pupil of a racial minority from any school, directly or
indirectly, on account of race; it does not and cannot
embrace all the problems of racial prejudice, even when
those problems contribute to disproportionate racial con-
centrations in some schools.
In this case it is urged that the District Court has
imposed a racial balance requirement of 71%-29% on
individual schools. The fact that no such objective was
actually achieved-and would appear to be impossible-
tends to blunt that claim, yet in the opinion and order
of the District Court of December 1, 1969, we find that
court directing
"that éfforts should be made to reach a 71-29 ratio
in the various schools SO that there will be no basis
for contending that one school is racially different
from the others
,
[t]hat no school [should] be
operated with an all-black or predominantly black
student body, [and] [t]hat pupils of all grades
[should] be assigned in such a way that as nearly
as practicable the various schools at various grade
levels have about the same proportion of black and
white students."
The District Judge went on to acknowledge that varia-
tion "from that norm may be unavoidable." This con-
tains intimations that the "norm" is a fixed mathematical
24
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
racial balance reflecting the pupil constituency of the
system. If we were to read the holding of the District
Court to require, as a matter of substantive constitu-
tional right, any particular degree of racial balance or
mixing, that approach would be disapproved and we
would be obliged to reverse. The constitutional com-
mand to desegregate schools does not mean that every
school in every community must always reflect the racial
composition of the school system as a whole.
As the voluminous record in this case shows,' the
predicate for the District Court's use of the 71%-29%
ratio was twofold: first, its express finding, approved by
the Court of Appeals and not challenged here, that a
dual school system had been maintained by the school
authorities at least until 1969; second, its finding, also
approved by the Court of Appeals, that the school board
had totally defaulted in its acknowledged duty to come
forward with an acceptable plan of its own, notwith-
standing the patient efforts of the District Judge who, on
at least three occasions, urged the board to submit plans.8
As the statement of facts shows, these findings are abun-
7 It must be remembered that the District Court entered nearly
a score of orders and numerous sets of findings, and for the most part
each was accompanied by a memorandum opinion. Considering
the pressure under which the court was obliged to operate we
would not expect that all inconsistencies and apparent inconsistencies
could be avoided. Our review, of course, is on the orders of Febru-
ary 5, 1970, as amended, and August 7, 1970.
8 The final board plan left 10 schools 86% to 100% Negro and
yet categorically rejected the techniques of pairing and clustering
as part of the desegregation effort. As discussed below, the Char-
lotte board was under an obligation to exercise every reasonable
effort to remedy the violation, once it was identified, and the
suggested techniques are permissible remedial devices. Additionally,
as noted by the District Court and Court of Appeals, the board plan
did not assign white students to any school unless the student
population of that school was at least 60% white. This was an
arbitrary limitation negating reasonable remedial steps.
SWANN v. BOARD OF EDUCATION
25
1
Opinion of the Court
dantly supported by the record. It was because of this
total failure of the school board that the District Court
was obliged to turn to other qualified sources, and Dr.
Finger was designated to assist the District Court to do
what the board should have done.
We see therefore that the use made of mathematical
ratios was no more than a starting point in the process
of shaping a remedy, rather than an inflexible require-
ment. From that starting point the District Court pro-
ceeded to frame a decree that was within its discretionary
powers, as an equitable remedy for the particular circum-
stances.9 As we said in Green, a school authority's
remedial plan or a district court's remedial decree is to
be judged by its effectiveness. 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.
(2) One-race Schools.
The record in this case reveals the familiar phenome-
non that in metropolitan areas minority groups are often
found concentrated in one part of the city. In some
circumstances certain schools may remain all or largely
of one race until new schools can be provided or neigh-
borhood patterns change. Schools all or predominately
9 In its August 3, 1970, memorandum holding that the District
Court plan was "reasonable" under the standard laid down by the
Fourth Circuit on appeal, the District Court explained the approach
taken as follows:
"This court has not ruled, and does not rule that 'racial balance'
is required under the Constitution; nor that all black schools in all
cities are unlawful; nor that all school boards must bus children or
violate the Constitution; nor that the particular order entered in
this case would be correct in other circumstances not before this
court." (Emphasis in original.)
26
OCTOBER TERM, 1970
SWANN BOA
Opinion of the Court
402 U.S.
1
of one race in a district of mixed population will require
the transferring ship
close scrutiny to determine that school assignments are
must be made availab
not part of state-enforced segregation.
to move. Cf. Elli
In light of the above, it should be clear that the
F. 2d 203, 206 (CA)
existence of some small number of one-race, or virtually
and the companie
one-race, schools within a district is not in and of itself
option
the mark of a system that still practices segregation
(3) Remedic
by law. The district judge or school authorities should
The maps
make every effort to achieve the greatest possible degree
strate that
of actual desegregation and will thus necessarily be con-
planners and
cerned with the elimination of one-race schools. No
tem has b
per se rúle can adequately embrace all the difficulties
mandering
of reconciling the competing interests involved; but in
additional
a system with a history of segregation the need for re-
of school
medial criteria of sufficient specificity to assure a school
to accom
authority's compliance with its constitutional duty war-
formerh
rants a presumption against schools that are substan-
student
tially disproportionate in their racial composition. Where
the school authority's proposed plan for conversion from
not
indee
a dual to a unitary system contemplates the continued
existence of some schools that are all or predominately
an
be
of one race, they have the burden of showing that such
school assignments are genuinely nondiscriminatory.
The court should scrutinize such schools, and the burden
upon the school authorities will be to satisfy the court
that their racial composition is not the result of present
or past discriminatory action on their part.
An optional majority-to-minority transfer provision
has long been recognized as a useful part of every desegre-
gation 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 is an indis-
pensable 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
SWANN v. BOARD OF EDUCATION
27
1
Opinion of the Court
the transferring student free transportation and space
must be made available in the school to which he desires
to move. Cf. Ellis V. Board of Public Instruction, 423
F. 2d 203, 206 (CA5 1970). The court orders in this
and the companion Davis case now provide such an
option.
(3) Remedial Altering of Attendance Zones.
The maps submitted in these cases graphically demon-
strate that one of the principal tools employed by school
planners and by courts to break up the dual school sys-
tem has been a frank-and sometimes drastic-gerry-
mandering of school districts and attendance zones. An
additional step was pairing, "clustering," or "grouping"
of schools with attendance assignments made deliberately
to accomplish the transfer of Negro students out of
formerly segregated Negro schools and transfer of white
students to formerly all-Negro schools. More often than
not, these zones are neither compact 10 nor contiguous;
indeed they may be on opposite ends of the city. As
an interim corrective measure, this cannot be said to be
beyond the broad remedial powers of a court.
10 The reliance of school authorities on the reference to the "revi-
sion of
attendance areas into compact units," Brown II, at 300
(emphasis supplied), is misplaced. The enumeration in that opin-
ion of considerations to be taken into account by district courts was
patently intended to be suggestive rather than exhaustive. The deci-
sion in Brown II to remand the cases decided in Brown I to local
courts for the framing of specific decrees was premised on a recogni-
tion that this Court could not at that time foresee the particular
means which would be required to implement the constitutional prin-
ciples announced. We said in Green, supra, at 439:
"The obligation of the district courts, as it always has been, is
to assess the effectiveness of a proposed plan in achieving desegrega-
tion. There is no universal answer to complex problems of desegre-
gation; there is obviously no one plan that will do the job in every
case. The matter must be assessed in light of the circumstances
present and the options available in each instance."
419-882 O 72 - 7
28
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
1
Absent a constitutional violation there would be no
dicial 5
basis for judicially ordering assignment of students on a
nations
racial basis. All things being equal, with no history of
of what
discrimination, it might well be desirable to assign pupils
opinion
to schools nearest their homes. But all things are not
do not
equal in a system that has been deliberately constructed
zones n
of the c
and maintained to enforce racial segregation. The rem-
edy for such segregation may be administratively awk-
good hi
ward, inconvenient, and even bizarre in some situations
gether.
and may impose burdens on some; but all awkwardness
widely
all situs
and inconvenience cannot be avoided in the interim
(4) 2
period when remedial adjustments are being made to
The #
eliminate the dual school systems.
an imple
No fixed or even substantially fixed guidelines can be
by this
established as to how far a court can go, but it must be
cannot I
recognized that there are limits. The objective is to
to stude
dismantle the dual school system. "Racially neutral"
the infi
assignment plans proposed by school authorities to a
of situa
district court may be inadequate; such plans may fail to
part of
counteract the continuing effects of past school segre-
perhaps
gation resulting from discriminatory location of school
tion from
sites or distortion of school size in order to achieve or
school.
maintain an artificial racial separation. When school
children
authorities present a district court with a "loaded game
schools :
board," affirmative action in the form of remedial alter-
The is
ing of attendance zones is proper to achieve truly non-
accepted
discriminatory assignments. In short, an assignment
in this
plan is not acceptable simply because it appears to be
neutral.
12 Duris
In this area, we must of necessity rely to a large extent,
buses to n
of 31 mile
as this Court has for more than 16 years, on the informed
area were
judgment of the district courts in the first instance and
1 whole,
on courts of appeals.
approxims
We hold that the pairing and grouping of noncontigu-
trip of 13
ous school zones is a permissible tool and such action is
children *
longest for
to be considered in light of the objectives sought. Ju-
SWANN v. BOARD OF EDUCATION
29
1
Opinion of the Court
dicial steps in shaping such zones going beyond combi-
nations of contiguous areas should be examined in light
of what is said in subdivisions (1), (2), and (3) of this
opinion concerning the objectives to be sought. Maps
do not tell the whole story since noncontiguous school
zones may be more accessible to each other in terms
of the critical travel time, because of traffic patterns and
good highways, than schools geographically closer to-
gether. Conditions in different localities will vary so
widely that no rigid rules can be laid down to govern
all situations.
(4) Transportation of Students.
The scope of permissible transportation of students as
an implement of a remedial decree has never been defined
by this Court and by the very nature of the problem it
cannot be defined with precision. No rigid guidelines as
to student transportation can be given for application to
the infinite variety of problems presented in thousands
of situations. Bus transportation has been an integral
part of the public education system for years, and was
perhaps the single most important factor in the transi-
tion from the one-room schoolhouse to the consolidated
school. Eighteen million of the Nation's public school
children, approximately 39%, were transported to their
schools by bus in 1969-1970 in all parts of the country.
The importance of bus transportation as a normal and
accepted tool of educational policy is readily discernible
in this and the companion case, Davis, supra.11 The
11 During 1967-1968, for example, the Mobile board used 207
buses to transport 22,094 students daily for an average round trip
of 31 miles. During 1966-1967, 7,116 students in the metropolitan
area were bused daily. In Charlotte-Mecklenburg, the system as
a whole, without regard to desegregation plans, planned to bus
approximately 23,000 students this year, for an average daily round
trip of 15 miles. More elementary school children than high school
children were to be bused, and four- and five-year-olds travel the
longest routes in the system.
30
OCTOBER TERM, 1970
SWANN w
Opinion of the Court
402 U.S.
1
o
Charlotte school authorities did not purport to assign
students on the basis of geographically drawn zones until
impinge on the edues
1965 and then they allowed almost unlimited transfer
weigh the soundness
privileges. The District Court's conclusion that assign-
of what is mid in -
ment of children to the school nearest their home serving
It hardly needs Mati
their grade would not produce an effective dismantling
will vary with mas
of the dual system is supported by the record.
more than the age of
Thus the remedial techniques used in the District
competing values in
difficult tank with to
Court's order were within that court's power to provide
tally no more 10 the
equitable relief; implementation of the decree is well
have traditionally e
within the capacity of the school authority.
The decree provided that the buses used to implement
the plan would operate on direct routes. Students would
be picked up at schools near their homes and transported
The Court of Apr
the equitable remain
to the schools they were to attend. The trips for ele-
the term "reasonable
mentary school pupils average about seven miles and
used the term "fraud
the District Court found that they would take "not over
"effective," and "yes
35 minutes at the most." 12 This system compares favor-
plan that promisms gu
ably with the transportation plan previously operated
now." On the facts
in Charlotte under which each day 23,600 students on all
clude that the order
grade levels were transported an average of 15 miles one
able, feasible and
way for an average trip requiring over an hour. In these
define the scope of
circumstances, we find no basis for holding that the local
remedial power of
school authorities may not be required to employ bus
deal with here,
transportation as one tool of school desegregation. De-
sense of basic fairs
segregation plans cannot be limited to the walk-in school.
not semanties,
An objection to transportation of students may have
suggest the INSURER 6
validity when the time or distance of travel is SO great
appropriate scope
of
as to either risk the health of the children or significantly
At some point,
them should have
12 The District Court found that the school system would have
Court's decision in
to employ 138 more buses than it had previously operated. But
"unitary" in the -
105 of those buses were already available and the others could
and Mezander,
easily be obtained. Additionally, it should be noted that North
Carolina requires provision of transportation for all students who
It does but fullo
are assigned to schools more than one and one-half miles from their
such systems will
homes. N. C. Gen. Stat. § 115-186 (b) (1966).
in a growing
SWANN v. BOARD OF EDUCATION
31
1
Opinion of the Court
impinge on the educational process. District courts must
weigh the soundness of any transportation plan in light
of what is said in subdivisions (1), (2), and (3) above.
It hardly needs stating that the limits on time of travel
will vary with many factors, but probably with none
more than the age of the students. The reconciliation of
competing values in a desegregation case is, of course, a
difficult task with many sensitive facets but fundamen-
tally no more SO than remedial measures courts of equity
have traditionally employed.
VI
The Court of Appeals, searching for a term to define
the equitable remedial power of the district courts, used
the term "reasonableness." In Green, supra, this Court
used the term "feasible" and by implication, "workable,"
"effective," and "realistic" in the mandate to develop "a
plan that promises realistically to work, and
to work
now." On the facts of this case, we are unable to con-
clude that the order of the District Court is not reason-
able, feasible and workable. However, in seeking to
define the scope of remedial power or the limits on
remedial power of courts in an area as sensitive as we
deal with here, words are poor instruments to convey the
sense of basic fairness inherent in equity. Substance,
not semantics, must govern, and we have sought to
suggest the nature of limitations without frustrating the
appropriate scope of equity.
At some point, these school authorities and others like
them should have achieved full compliance with this
Court's decision in Brown I. The systems would then be
"unitary" in the sense required by our decisions in Green
and Alexander.
It does not follow that the communities served by
such systems will remain demographically stable, for
in a growing, mobile society, few will do SO. Neither
32
OCTOBER TERM, 1970
DAVIS v. SCHOOL (
Opinion of the Court
402 U.S.
school authorities nor district courts are constitution-
ally required to make year-by-year adjustments of the
DAVIS ET AL D. Be
racial composition of student bodies once the affirmative
SIONERS OF
duty to desegregate has been accomplished and racial
CERTIORARI TO THE 1
discrimination through official action is eliminated from
FOR r
the system. This does not mean that federal courts
are without power to deal with future problems; but
No. 436. Argued Octab
in the absence of a showing that either the school au-
East of the major highes
thorities or some other agency of the State has delib-
Mobile, Ala., live 94% of
erately attempted to fix or alter demographic patterns
there are 65% Negro w
to affect the racial composition of the schools, further
schools are 12% Negre
approved 1 designegatis
intervention by a district court should not be necessary.
plan, insolar M the at
For the reasons herein set forth, the judgment of the
section as involved from $
Court of Appeals is affirmed as to those parts in which it
and providing to tranque
affirmed the judgment of the District Court. The order
poses. Though name you
WAS achieved for the BIR
of the District Court, dated August 7, 1970, is also
in the custern section (s
affirmed.
school pupils in the starts
It is so ordered.
over half of the Xegre you
to all-Negro or
I
faculty and staff notice
Court of Approle
board to
whole district.
1. The Court of
staff ratio is
of Education,
2. The Court
metropolitan Makile
and in not
techniques to
gation. P.
430 F. 2d SK3 and
in part.
BURGER. C.I. Internet
Jack Greenburg angth
him on the bride un
2686
93 SUPREME COURT REPORTER
413 U.S. 122
Mr. Justice DOUGLAS would vacate
in favor of defendants on all but ONE
and remand for dismissal of the criminal
count of second claim, and at 313 F.
complaint under which petitioner was
Supp. 90, issued opinion on the remedy.
found guilty because "obscenity" as de-
and defendants appealed, and plaintiffs
fined by the California courts and by
cross-appealed. The Court of Appeals.
this Court is too vague to satisfy the re-
445 F.2d 990, affirmed in part, reversed
quirements of due process. See Miller
in part, and remanded, and certiorari
V. California, 413 U.S. 15, at 37, 93 S.Ct.
was granted. The Supreme Court, Mr.
2607, at 2622, 37 L.Ed.2d 419 (Douglas,
Justice Brennan, held that finding of in-
J., dissenting).
tentionally segregative school board ac-
tions in meaningful portion of school
Mr. Justice BRENNAN, with whom
system created prima facie case of un-
Mr. Justice STEWART and Mr. Justice
lawful segregated design on part of
MARSHALL join, dissenting.
school authorities, and shifted to those
I would reverse the judgment of the
authorities the burden of proving that
Appellate Department of the Superior
other segregated schools within system
Court of California and remand the case
were not the result of intentionally seg-
for further proceedings not inconsistent
regative actions even if it was deter-
with my dissenting opinion in Paris
mined that different areas of school dis-
Adult Theatre I V. Slaton, 413 U.S. 49, at
tricts should be viewed independently of
73, 93 S.Ct. 2628, at 2642, 37 L.Ed.2d
each other.
446. See my dissent in Miller V. Cali-
Modified and remanded to the Dis-
fornia, 413 U.S. 15, at 47, 93 S.Ct. 2607,
trict Court.
at 2627, 37 L.Ed.2d 419.
Mr. Justice Douglas filed separate
opinion.
KEY NUMBER SYSTEM
Mr. Chief Justice Burger concurred
in the result.
413 U.S. 189, 37 L.Ed.2d 548
Mr. Justice Powell filed opinion
Wilfred KEYES et al., Petitioners,
concurring in part and dissenting in
V.
part.
SCHOOL DISTRICT NO. 1, DENVER,
Mr. Justice Rehnquist filed dissent-
COLORADO, et al.
ing opinion.
No. 71-507.
Mr. Justice White took no part in
Argued Oct. 12, 1972.
decision of case.
Decided June 21, 1973.
1. Schools and School Districts @=13
Rehearing Denied Oct. 9, 1973.
What is or is not a segregated
See 414 U.S. 883, 94 S.Ct. 27.
school depends on facts of particular
case. U.S.C.A.Const. Amend. 14.
Suit wherein parents of children at-
tending public schools sued individually,
2. Schools and School Districts >13
and on behalf of their minor children,
In addition to racial and ethnic
and on behalf of class of persons simi-
composition of school's student body,
larly situated, to remedy alleged segre-
other factors to be considered in deter-
gated condition of certain schools and
mining whether school is segregated are
effects of that condition. The United
racial and ethnic composition of faculty
States District Court for the District of
and staff, and community and adminis-
Colorado, 303 F.Supp. 279 granted a
tration attitudes towards school. U.S.
preliminary injunction, and at 303 F.
C.A.Const. Amend. 14.
Supp. 289 made supplemental findings,
3. Schools and School Districts 0-13
and at 313 F.Supp. 61, entered judgment
For purposes of defining a "segre-
in favor of plaintiffs on first claim, and
gated" school, Negroes and Hispanos
413 U.S. 189 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2687
Cite as 93 S.Ct. 2686 (1973)
must be placed in same category. 9. Schools and School Districts -13
Const.Colo. art. 9, § 8; U.S.C.A.Const.
In discharging burden of showing
Amend. 14.
that segregated schooling is not result
of intentionally segregative acts, school
4. Schools and School Districts -13
authorities may not rely on some alleg-
In absence of showing that school
edly logical, racially neutral explanation
district is divided into clearly unrelated
for their actions but must adduce proof
units, proof of state-imposed segregation
sufficient to support finding that segre-
in substantial portion of district will
gative intent was not among factors that
suffice to support finding of existence
motivated their actions. U.S.G.A.Const.
of dual school system and imposes on
Amend. 14.
school authorities the affirmative duty
10. Schools and School Districts -13
to effectuate transition to racially non-
If actions of school authorities were
discriminatory school system. Const.
to any degree motivated by segregative
Colo. art. 9, § 8; U.S.C.A.Const. Amend.
intent and segregation resulting from
14.
those actions continues to exist, fact of
remoteness in time does not make those
5. Schools and School Districts -13
Finding of intentional segregation
actions any less intentional. U.S.C.A.
Const. Amend. 14.
on part of school board in one portion of
school system is highly relevant to issue
11. Schools and School Districts 13
of board's intent with respect to other
Prima facie case of existence of
segregated schools in system. Const.
dual school system which arises from ev-
Colo. art. 9, § 8; U.S.C.A.Const. Amend.
idence of school authorities' pursuit of
14.
intentional segregative policy in portion
of school district may be met by evi-
6. Schools and School Districts -13
dence supporting finding that lesser de-
Finding of intentionally segregative
gree of segregated schooling would not
school board actions in meaningful por-
have resulted even if school authorities
tion of school system created prima fa-
had not acted as they did. U.S.C.A.
cie case of unlawful segregated design
Const. Amend. 14.
on part of school authorities, and shifted
to those authorities the burden of prov-
12. Schools and School Districts -13
ing that other segregated schools within
Plaintiffs in school desegregation
system were not the result of intention-
case are not required to prove cause in
ally segregative actions even if it was
sense of nonattenuation.
determined that different areas of
13. Schools and School Districts -13
school districts should be viewed inde-
If school board cannot disprove seg-
pendently of each other. Const.Colo.
regative intent, it cannot rebut prima
art. 9, § 8; U.S.C.A.Const. Amend. 14.
facie case arising from pursuit of segre-
gative policy in portion of school district
7. Schools and School Districts -13
by showing that its past segregative
Differentiating factor between de
acts did not create or contribute to cur-
jure segregation and so-called de facto
rent segregated condition of schools.
segregation is purpose or intent to seg-
U.S.C.A.Const. Amend. 14.
regate. U.S.C.A.Const. Amend. 14.
14. Schools and School Districts 13
8. Schools and School Districts 141(5)
Where school authorities have prac-
In school system with history of
ticed de jure segregation in meaningful
segregation, discharge of disproportion-
portion of school system by techniques
ately large number of Negro teachers in-
indicating that "neighborhood school"
cident to desegregation thrusts on school
concept has not been maintained free of
board the burden of justifying its con-
manipulation, assertion that "neighbor-
duct by clear and convincing evidence.
hood school policy" was racially neutral
2688
93 SUPREME COURT REPORTER
413 U.S. 189
was not dispositive of claims asserted in
(a) Proof that the school authori-
school desegregation case.
ties have pursued an intentional segre-
gative policy in a substantial portion of
Syllabus*
the school district will support a finding
Petitioners sought desegregation of
by the trial court of the existence of a
the Park Hill area schools in Denver
dual system, absent a showing that the
and, upon securing an order of the Dis-
district is divided into clearly unrelated
trict Court directing that relief, expand-
units. Pp. 2694-2695.
ed their suit to secure desegregation of
(b) On remand the District Court
the remaining schools of the Denver
should decide initially whether respon-
school district, particularly those in the
dent School Board's deliberately segre-
core city area. The District Court de-
gative policy respecting the Park Hills
nied the further relief, holding that the
schools constitutes the whole Denver
deliberate racial segregation of the Park
school district a dual school system. Pp.
Hill schools did not prove a like segre-
2695-2696.
gation policy addressed specifically to
the core city schools and requiring peti-
(c) Where, as in this case, a policy
tioners to prove de jure segregation for
of intentional segregation has been
each area that they sought to have de-
proved with respect to a significant por-
segregated. That court nevertheless
tion of the school system, the burden is
found that the segregated core city
on the school authorities (regardless of
schools were educationally inferior to
claims that their "neighborhood school
"white" schools elsewhere in the district
policy" was racially neutral) to prove
and, relying on Plessy V. Ferguson, 163
that their actions as to other segregated
U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, or-
schools in the system were not likewise
dered the respondents to provide sub-
motivated by a segregative intent. Pp.
stantially equal facilities for those
2697-2700.
schools. This latter relief was reversed
by the Court of Appeals, which affirmed
10 Cir., 445 F.2d 990, modified and
the Park Hill ruling and agreed that
remanded.
Park Hill segregation, even though de-
liberate, proved nothing regarding an
overall policy of segregation. Held:
James M. Nabrit, III, New York City,
1. The District Court, for purposes
and Gorden C. Greiner, Denver, Colo.,
of defining a "segregated" core city
for petitioners.
school, erred in not placing Negroes and
Hispanos in the same category since
William K. Ris, Denver, Colo., for re-
both groups suffer the same educational
spondents:
inequities when compared with the
treatment afforded Anglo students. Pp.
Mr. Justice BRENNAN delivered the [19:
2691-2692.
opinion of the Court.
2. The courts below did not apply
This school desegregation case con-
the correct legal standard in dealing
cerns the Denver, Colorado, school sys-
with petitioners' contention that re-
tem. That system has never been oper-
spondent School Board had the policy of
ated under a constitutional or statutory
deliberately segregating the core city
provision that mandated or permitted
schools. Pp. 2692-2700.
racial segregation in public education.¹
*
The syllabus constitutes no part of the
200 U.S. 321, 337, 26 S.Ct. 282, 287, 50
opinion of the Court but has been pre-
L.Ed. 499.
pared by the Reporter of Decisions for the
convenience of the reader. See United
1. To the contrary, Art. IX, § 8, of the
States V. Detroit Timber & Lumber Co.,
Colorado Constitution expressly prohibits
U.S. 193 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2689
Cite as 93 S.Ct. 2686 (1973)
Rather, the gravamen of this action, middle of the Negro community west of
brought in June 1969 in the District
Park Hill, by the gerrymandering of
Court for the District of Colorado by
student attendance zones, by the use of
parents of Denver schoolchildren, is
so-called "optional zones," and by the ex-
that respondent School Board alone, by
cessive use of mobile classroom units,
use of various techniques such as the
among other things, the respondent
manipulation of student attendance
School Board had engaged over almost a
zones, schoolsite selection and a neigh-
decade after 1960 in an unconstitutional
borhood school policy, created or main-
policy of deliberate racial segregation
tained racially or ethnically (or both ra-
with respect to the Park Hill schools.3
cially and ethnically) segregated schools
The court therefore ordered the Board
throughout the school district, entitling
to desegregate those schools through the
petitioners to a decree directing desegre-
implementation of the three rescinded
gation of the entire school district.
resolutions. D.C., 303 F.Supp. 279
The boundaries of the school district
and 289 (1969).
are coterminous with the boundaries of
Segregation in Denver schools is not
the city and county of Denver. There
limited, however, to the schools in the
were in 1969, 119 schools 2 with 96,580
Park Hill area, and not satisfied with
pupils in the school system. In early
their success in obtaining relief for
1969, the respondent School Board
Park Hill, petitioners pressed their
adopted three resolutions, Resolutions
prayer that the District Court order de-
1520, 1524, and 1531, designed to deseg-
segregation of all segregated schools in
regate the schools in the Park Hill area
the city of Denver, particularly the
in the northeast portion of the city.
heavily segregated schools in the core
193
T wing an election which produced a
city area.⁴ But that court concluded
beard majority opposed to the resolu-
that its finding of a purposeful and sys-
tions, the resolutions were rescinded and
tematic program of racial segregation
replaced with a voluntary student trans-
affecting thousands of students in the
fer program. Petitioners then filed this
Park Hill area did not, in itself, impose
action, requesting an injunction against
on the School Board an affirmative duty
the rescission of the resolutions and an
to eliminate segregation throughout the
order directing that the respondent
school district. Instead, the court frac-
School Board desegregate and afford
tionated the district and held that peti-
equal educational opportunity "for the
tioners had to make a fresh showing of de
School District as a whole." App.
jure segregation in each area of the city
32a. The District Court found that by
for which they sought relief. Moreover,
the construction of a new, relatively
the District Court held that its finding
small elementary school, Barrett, in the
of intentional segregation in Park Hill
any "classification of pupils
on
3. The so-called "Park Hill schools" are
account of race or color." As early as
Barrett, Stedman, Hallett, Smith, Philips,
1927, the Colorado Supreme Court held
and Park Hill Elementary Schools; and
that a Denver practice of excluding black
Smiley Junior High School. East High
students from school programs at Manual
School serves the area but is located out-
High School and Morey Junior High
side of it. (See Appendix.)
School violated state law. Jones V.
Newlon, 81 Colo. 25, 253 P. 3S6.
4. The so-called "core city schools" which
are said to be segregated are Boulevard,
2. There were 92 elementary schools, 15
Bryant-Webster, Columbine. Crofton,
junior high schools, 2 junior-senior high
Ebert, Elmwood, Elyria, Fairmont, Fair-
schools, and 7 senior high schools. In
view, Garden Place, Gilpin. Greenlee,
addition, the Board operates an Opportu-
Harrington, Mitchell, Smedley. Swansea,
nity School, a Metropolitan Youth Educa-
Whittier, Wyatt, and Wyman Elementary
tion Center, and an Aircraft Training
Schools; Baker, Cole, and Morey Junior
'ity.
High Schools; and East, West. and Mau-
ual High Schools. (See Appendix.)
93 S.Ct.-169
2690
93 SUPREME COURT REPORTER
413 U.S. 193
was not in any sense material to the
F.Supp. 90, 96 (1970). The District
question of segregative intent in other
Court then formulated a varied remedial
areas of the city. Under this restrictive
plan to that end which was incorporated
approach, the District Court concluded
in the Final Decree.5
that petitioners' evidence of intentional-
Respondent School Board appealed,
ly discriminatory School Board action in
and petitioners cross-appealed, to the
areas of the district other than Park
Court of Appeals for the Tenth Circuit.
Hill was insufficient to "dictate the con-
That court sustained the District
clusion that this is de jure segregation
Court's finding that the Board had en-
which calls for an all-out effort to de-
gaged in an unconstitutional policy of de-
segregate. It is more like de facto seg-
liberate racial segregation with respect
regation, with respect to which the rule
to the Park Hill schools and affirmed the
is that the court cannot order desegrega-
Final Decree in that respect. As to the
tion in order to provide a better bal-
core city schools, however, the Court of
ance." D.C., 313 F.Supp. 61, 73 (1970).
Appeals reversed the legal determination
Nevertheless, the District Court went
of the District Court that those schools
195
on to hold that the proofs established
were maintained in violation of the
that the segregated core city schools
Fourteenth Amendment because of the
were educationally inferior to the pre-
unequal educational opportunity afford-
dominantly "white" or "Anglo" schools
ed, and therefore set aside SO much of
in other parts of the district-that is,
the Final Decree as required desegrega-
"separate facilities
unequal in
tion and educational improvement pro-
the quality of education provided." Id.,
grams for those schools. 445 F.2d 990
at 83. Thus, the court held that, under
(1971). In reaching that result, the
the doctrine of Plessy V. Ferguson, 163
Court of Appeals also disregarded re-
U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256
spondent School Board's deliberate racial
(1896), respondent School Board consti-
segregation policy respecting the Park
tutionally "must at a minimum
Hill schools and accepted the District
194 offer an equal educational opportunity,"
Court's finding that petitioners had not
313 F.Supp., at 83, and, therefore, al-
proved that respondent had a like policy
though all-out desegregation "could not
addressed specifically to the core city
be decreed,
the only feasible
schools.
and constitutionally acceptable program
We granted petitioners' petition for
-the only program which furnishes any-
certiorari to review the Court of Ap-
thing approaching substantial equality-
peals' judgment insofar as it reversed
is a system of desegregation and integra-
that part of the District Court's Final
tion which provides compensatory educa-
Decree as pertained to the core city
tion in an integrated environment." 313
schools. 404 U.S. 1036, 92 S.Ct. 707, 30
5. The first of the District Court's four
were not included within the scope of the
opinions, 303 F.Supp. 279, was filed
three 1969 Board resolutions. The Court
July 31, 1969, and granted petitioners' ap-
of Appeals filed five unreported opinions:
plication for a preliminary injunction.
on August 5, 1969, vacating preliminary
The second opinion, 303 F.Supp. 289, was
injunctions; on August 27, 1969, staying
filed August 14, 1969, and made supple-
preliminary injunction; on September 15,
mental findings and conclusions. The
1969, on motion to amend stay; on
third opinion, 313 F.Supp. 61, filed March
October 17, 1969, denying motions to
21, 1970, was the opinion on the merits.
dismiss; and on March 26, 1971, grant-
The fourth opinion, 313 F.Supp. 90, was
ing stay. Mr. Justice Brennan, on August
on remedy and was filed May 21, 1970.
29, 1969, filed an opinion reinstating the
The District Court filed an unreported
prelimin ary injunction, 396 U.S. 1215, 90
opinion on October 19, 1971, in which re-
S.Ct. 12, 24 L.Ed.2d 37, and on April 26,
lief was extended to Hallett and Sted-
1971, this Court entered a per
man Elementary Schools which were
curiam order vacating the Court of
found by the court in its July 31, 1969,
Appeals' stay, 402 U.S. 182, 91 S.Ct.
opinion to be purposefully segregated but
1399, 28 L.Ed.2d 710.
413 U.S. 197
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2691
Cite as 93 S.Ct. 2686 (1973)
L.Ed.2d 728 (1972). The judgment of The District Court used those figures to
the Court of Appeals in that respect is
signify educationally inferior schools,
modified to vacate instead of reverse the
and there is no suggestion in the record
Final Decree. The respondent School
that those same figures were or would be
Board has cross-petitioned for certiorari
used to define a "segregated" school in
to review the judgment of the Court of
the de jure context. What is or is not a
Appeals insofar as it affirmed that part
segregated school will necessarily depend
of the District Court's Final Decree as
on the facts of each particular case. In
pertained to the Park Hills schools.
addition to the racial and ethnic compo-
School District No. 1 V. Docket No. 71-
sition of a school's student body, other
572, Keyes. The cross-petition is denied.
factors, such as the racial and ethnic
composition of faculty and staff and
I
the community and administration atti-
tudes toward the school, must be taken
[1, 2] Before turning to the primary
into consideration. The District Court
question we decide today, a word must
95
has recognized these specific factors as
be said about the District Court's meth-
elements of the definition of a "segre-
od of defining a "segregated" school.
gated" school, id., at 74, and we may
Denver is a tri-ethnic, as distinguished
therefore infer that the court will con-
from a bi-racial, community. The over-
sider them again on remand.
all racial and ethnic composition of the
Denver public schools is 66 Anglo, 14%
[3] We conclude, however, that the
197
Negro, and 20% Hispano.⁶ The Dis-
District Court erred in separating Ne-
trict Court in assessing the question of
groes and Hispanos for purposes of de-
196 de jure segregation in the core city
fining a "segregated" school. We have
schools, preliminarily resolved that Ne-
held that Hispanos constitute an identi-
groes and Hispanos should not be placed
fiable class for purposes of the Four-
in the same category to establish the
teenth Amendment. Hernandez V. Tex-
segregated character of a school. 313
as, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed.
F.Supp., at 69. Later, in determining
866 (1954). See also United States V.
the schools that were likely to produce
Texas Education Agency, 467 F.2d 848
an inferior educational opportunity, the
(CA5 1972) (en banc) Cisneros V. Cor-
court concluded that a school would be
pus Christi Independent School District,
467 F.2d 142 (CA5 1972) (en banc)
considered inferior only if it had "a con-
Alvarado V. El Paso Independent School
centration of either Negro or Hispano
District, 445 F.2d 1011 (CA5) 1971)
students in the general area of 70 to 75
Soria V. Oxnard School District, 328 F.
percent." Id., at 77. We intimate no
Supp. 155 (CD Cal.1971) ; Romero V.
opinion whether the District Court's
Weakley, 226 F.2d 399 (CA9 1955). In-
70%-to-75% requirement was correct.
deed the District Court recognized this
6. The parties have used the terms "Anglo," "Negro," and "Hispano" through-
out the record. We shall therefore use those terms.
"Hispano" is the term used by the Colorado Department of Education to refer
to a person of Spanish, Mexican, or Cuban heritage. Colorado Department of
Education, Human Relations in Colorado, A Historical Record 203 (1968). In
the Southwest, the "Hispanos" are more commonly referred to as "Chicanos" or
"Mexican-Americans."
The more specific racial and ethnic composition of the Denver public schools
is as follows:
Anglo
Negro
Hispano
Pupils
No.
%
No.
%
No.
%
Elementary
33,719
61.8
8,297
15.2
12,570
23.0
Junior High
14,848
68.7
2,893
13.4
3,858
17.9
Senior High
14,852
72.8
2,442
12.0
3,101
15.2
Total
63,419
65.7
13,632
14.1
19,529
20.2
2692
93 SUPREME COURT REPORTER
413 U.S. 197
in classifying predominantly Hispano
gal standard in addressing petitioners'
schools as "segregated" schools in their
contention that respondent School Board
own right. But there is also much evi-
engaged in an unconstitutional policy of
dence that in the Southwest Hispanos
deliberate segregation in the core city
and Negroes have a great many things
schools. Our conclusion is that those
in common. The United States Com-
courts did not apply the correct standard
mission on Civil Rights has recently
in addressing that contention.9
published two Reports on Hispano edu-
cation in the Southwest.⁷ Focusing on
Petitioners apparently concede for the
students in the States of Arizona, Cal-
purposes of this case that in the case of
ifornia, Colorado, New Mexico, and Tex-
a school system like Denver's, where no
as, the Commission concluded that His-
statutory dual system has ever existed,
panos suffer from the same educational
plaintiffs must prove not only that seg-
inequities as Negroes and American In-
regated schooling exists but also that it
dians.⁸ In fact, the District Court it-
was brought about or maintained by in-
self recognized that "[o]ne of the things
tentional state action. Petitioners
which the Hispano has in common with
proved that for almost a decade after
the Negro is economic and cultural dep-
1960 respondent School Board had en-
gaged in an unconstitutional policy of
198 rivation I and discrimination." 313 F.
deliberate racial segregation in the Park
Supp., at 69. This is agreement that,
Hill schools. Indeed, the District Court
though of different origins Negroes
and Hispanos in Denver suffer identical
found that "[b]etween 1960 and 1969
discrimination in treatment when com-
the Board's policies|with respect to these
199
northeast Denver schools show an unde-
pared with the treatment afforded An-
glo students. In that circumstance, we
viating purpose to isolate Negro stu-
think petitioners are entitled to have
dents" in segregated schools "while pre-
schools with a combined predominance
serving the Anglo character of [other]
of Negroes and Hispanos included in the
schools." 303 F.Supp., at 294. This
finding did not relate to an insubstantial
category of "segregated" schools.
or trivial fragment of the school system.
On the contrary, respondent School
II
Board was found guilty of following a
In our view, the only other question
deliberate segregation policy at schools
that requires our decision at this time is
attended, in 1969, by 37.69% of Den-
that subsumed in Question 2 of the ques-
ver's total Negro school population, in-
tions presented by petitioners, namely
cluding one-fourth of the Negro elemen-
whether the District Court and the
tary pupils, over two-thirds of the Ne-
Court of Appeals applied an incorrect le-
gro junior high pupils, and over two-
7. United States Commission on Civil
public education at a rate equal to that of
Rights, Mexican American Education
their Auglo classmates."
Study, Report 1, Ethnic Isolation of Mex-
ican Americans in the Public Schools of
9. Our Brother REHNQUIST argues in
the Southwest (Apr. 1971); United States
dissent that the Court somehow trans-
Commission on Civil Rights, Mexican
gresses the "two-court" rule. Infra, at
American Educational Series, Report 2,
2724. But at this stage, we have no
The Unfinished Education (October
occasion to review the factual findings
1971).
concurred in by the two courts below.
Cf. Neil V. Biggers, 409 U.S. 188, 93 S.Ct.
8. The Commission's second Report, on p.
375. 34 L.Ed.2d 401 (1972). We address
41, summarizes its findings:
only the question whether those courts ap-
"The basic finding of this report is that
plied the correct legal standard in de-
minority students in the Southwest-
ciding the case as it affects the core city
Mexican Americans, blacks, American
schools.
FORD
Indians-do not obtain the benefits of
GERALD
LIBRARY
413 U.S. 200
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2693
Cite as 93 S.Ct. 2686 (1973)
fifths of the Negro high school pupils.¹⁰
plaintiffs prove that a current condition
1200 In addition, there was uncontroverted
of segregated schooling exists within a
evidence that teachers and staff had for
school district where a dual system was
years been assigned on the basis of a
compelled or authorized by statute at the
minority teacher to a minority school
time of our decision in Brown V. Board
throughout the school system. Respond-
of Education, 347 U.S. 483, 74 S.Ct. 686,
ent argues, however, that a finding of
98 L.Ed. 873 (1954) (Brown I), the
state-imposed segregation as to a sub-
State automatically assumes an affirma-
stantial portion of the school system can
tive duty "to effectuate a transition to a
be viewed in isolation from the rest of
racially nondiscriminatory school sys-
the district, and that even if state-im-
tem," Brown V. Board of Education, 349
posed segregation does exist in a sub-
U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed.
stantial part of the Denver school system,
1083 (1955) (Brown II), see also
it does not follow that the District Court
Green V. County School Board, 391 U.S.
could predicate on that fact a finding that
430, 437-438, 88 S.Ct. 1689, 1693-1694,
the entire school system is a dual system.
20 L.Ed.2d 716 (1968), that is, to elimi-
We do not agree. We have never sug-
nate from the public schools within their
gested that plaintiffs in school desegre-
school system "all vestiges of state-im-
gation cases must bear the burden of
proving the elements of de jure segrega-
posed segregation." Swann V. Char-
tion as to each and every school or each
lotte-Meckleburg Board of Education,
and every student within the school sys-
402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.
tem. Rather, we have held that where
Ed.2d 554 (1971) 11
10. The Board was found guilty of intentionally segregative acts of one kind or
another with respect to the schools listed below. (As to Cole and East, the con-
clusion rests on the rescission of the resolutions.)
PUPILS 1968-1969
Anglo
Negro
Hispano
Total
Barrett
1
410
12
423
Stedman
27
634
25
686
Hallett
76
634
41
751
Park Hill
684
223
56
963
Philips
307
203
45
555
Smiley Jr. High
360
1,112
74
1,546
Cole Jr. High
46
884
289
1,219
East High
1,409
1,039
175
2,623
Subtotal Elementary
1,095
2,104
179
3,378
Subtotal Jr. High
406
1,996
363
2,765
Subtotal Sr. High
1,409
1,039
175
2,623
Total
2,910
5,139
717
8,766
The total Negro school enrollment in 1968 was:
Elementary
8,297
Junior High
2,893
Senior High
2,442
Thus, the above-mentioned schools included:
Elementary
25.36% of all Negro elementary pupils
Junior High
68.99% of all Negro junior high pupils
Senior High
42.55% of all Negro senior high pupils
Total
37.69% of all Negro pupils
11. Our Brother REIINQUIST argues in
integrate" the schools of a dual school
dissent that Brown V. Board of Education
system but was only a "prohibition
did not impose an "affirmative duty to
against discrimination" "in the sense that
2694
93 SUPREME COURT REPORTER
413 U.S. 201
201
This is not a case, however, where a
and this, in turn, together with the ele-
statutory dual system has ever existed.
ments of student assignment and school
Nevertheless, where plaintiffs prove
construction, may have a profound recip-
that the school authorities have carried
rocal effect on the racial composition of
out a systematic program of segregation
residential neighborhoods within a met-
affecting a substantial portion of the
ropolitan area, thereby causing further
students, schools, teachers, and facilities
racial concentration within the schools.
within the school system, it is only com-
We recognized this in Swann when we
mon sense to conclude that there exists a
said:
predicate for a finding of the existence
of a dual school system. Several consid-
"They [school authorities] must de-
erations support this conclusion. First,
cide questions of location and capacity
it is obvious that a practice of concen-
in light of population growth, fi-
trating Negroes in certain schools by
nances, land values, site availability,
structuring attendance zones or desig-
through an almost endless list of fac-
tors to be considered. The result of
nating "feeder" schools on the basis of
race has the reciprocal effect of keeping
this will be a decision which, when
other nearby schools predominantly
combined with one technique or anoth-
white.12 Similarly, the practice of
er of student assignment, will deter-
building a school-such as the Barrett
mine the racial composition of the stu-
Elementary School in this case-to a
dent body in each school in the sys-
certain size and in a certain location,
tem. Over the long run, the conse-
"with conscious knowledge that it would
quences of the choices will be far
202 be a segregated school," 303 F.Supp., at
reaching. People gravitate toward
285, has a substantial reciprocal effect
school facilities, just as schools are lo-
on the racial composition of other near-
cated in response to the needs of peo-
by schools. So also, the use of mobile
ple. The location of schools may thus
classrooms, the drafting of student trans-
influence the patterns of residential
fer policies, the transportation of stu-
development of a metropolitan area
dents, and the assignment of faculty and
and have important impact on compo-
staff, on racially identifiable bases, have
sition of inner-city neighborhoods.
the clear effect of earmarking schools
"In the past, choices in this respect
according to their racial composition,
have been used as a potent weapon for
the assignment of a child to a particular
L.Ed.2d 19 (1969) ; Swann V. Charlotte-
school is not made to depend on his race
Mecklenburg Board of Education, 402
"
Infra, at 2722. That is the
U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.
interpretation of Brown expressed 18
2d 554 (1971). See also Kelley V. Metro-
years ago by a three-judge court in Briggs
politan County Board of Education, 317
V. Elliott, 132 F.Supp. 776, 777 (D.C.
F.Supp. 980, 984 (D.C.1970).
1955) : "The Constitution, in other
words, does not require integration. It
12. As a former School Board President
merely forbids discrimination." But
who testified for the respondents put it
Green V. County School Board, 391 U.S.
"Once you change the boundary of any
430, 437-438, 88 S.Ct. 1689, 1694, 20 L.
one school, it is affecting all the schools
Ed.2d 716 (1968), rejected that interpre-
Testimony of Mrs. Lois Heath
tation insofar as Green expressly held
Johnson on cross-examination. App.
that "School boards
operating state-
951a-952a.
compelled dual systems were nevertheless
Similarly, Judge Wisdom has recently
clearly charged [by Brown II] with the
stated:
affirmative duty to take whatever steps
"Infection at one school infects all
might be necessary to convert to a unitary
schools. To take the most simple
system in which racial discrimination
example, in a two school system, all
would be eliminated root and branch."
blacks at one school means all or almost
Green remains the governing principle.
all whites at the other." United States V.
Alexander V. Holmes County Board of
Texas Education Agency, 467 F.2d 848,
Education, 396 U.S. 19, 90 S.Ct. 29, 24
888 (CA5 1972).
413 U.S. 205 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2695
Cite as 93 S.Ct. 26S6 (1973)
creating or maintaining a state-segre-
tive duty "to effectuate a transition to a
gated school system. In addition to
racially nondiscriminatory school sys-
the classic pattern of building schools
tem." Brown 11, supra, 394 U.S., at 301,
specifically intended for Negro or
75 S.Ct. at 756.
white students, school authorities have
On remand, therefore, the District 204
sometimes, since Brown, closed schools
Court should decide in the first instance
203
which appeared likely to become ra-
whether respondent School Board's de-
cially mixed through changes in
liberate racial segregation policy with
neighborhood residential patterns.
respect to the Park Hill schools consti-
This was sometimes accompanied by
tutes the entire Denver school system a
building new schools in the areas of
dual school system. We observe that on
white suburban expansion farthest
the record now before us there is indica-
from Negro population centers in or-
tion that Denver is not a school district
der to maintain the separation of the
which might be divided into separate,
races with a minimum departure from
identifiable and unrelated units. The
the formal principles of 'neighborhood
District Court stated, in its summary of
zoning.' Such a policy does more than
findings as to the Park Hill schools, that
simply influence the short-run compo-
there was "a high degree of interrela-
sition of the student body of a new
tionship among these schools, SO that
school. It may well promote segregat-
any action by the Board affecting the
ed residential patterns which, when
racial composition of one would almost
combined with 'neighborhood zoning,'
certainly have an effect on the others."
further lock the school system into the
303 F.Supp., at 294. And there was co-
mold of separation of the races. Upon
gent evidence that the ultimate effect of
a proper showing a district court may
the Board's actions in Park Hill was not
consider this in fashioning a remedy."
limited to that area: the three 1969 res-
402 U.S., at 20-21, 91 S.Ct. at 1278.
olutions designed to desegregate the
[4] In short, common sense dictates
Park Hill schools changed the attend-
the conclusion that racially inspired
ance patterns of at least 29 schools at-
school board actions have an impact be-
tended by almost one-third of the pupils
yond the particular schools that are the
in the Denver school system. 13 This
subjects of those actions. This is not to
suggests that the official segregation in
say, of course, that there can never
Park Hill affected the racial composition
be a case in which the geographical struc-
of schools throughout the district.
ture of, or the natural boundaries with-
On the other hand, although the Dis-
in, a school district may have the ef-
trict Court did not state this, or indeed
fect of dividing the district into sep-
any, reason why the Park Hill finding
arate, identifiable and unrelated units.
was disregarded when attention was
Such a determination is essentially a
turned to the core city schools-beyond
question of fact to be resolved by the
saying that the Park Hill and core city
trial court in the first instance, but
areas were in its view "different"-
such cases must be rare. In the ab-
the areas, although adjacent to each
sence of such a determination, proof of
other, are separated by Colorado Boule-
state-imposed segregation in a substan-
vard, a six-lane highway. From the
tial portion of the district will suffice to
record, it is difficult to assess the actual
support a finding by the trial court of
significance of Colorado Boulevard to
the existence of a dual system. Of
the Denver school system. The Boule-
course, where that finding is made, as in
vard runs the length of the school dis-
cases involving statutory dual systems,
trict, but at least two elementary 205
the school authorities have an affirma-
schools, Teller and Steck, have attend-
13. See the chart in 445 F.2d, at 1008-1009,
attended the schools affected by the resolu-
which indicates that 31,767 pupils
tions.
2696
93 SUPREME COURT REPORTER
413 U.S. 205
ance zones which cross the Boulevard.
III
Moreover, the District Court, although
referring to the Boulevard as "a natural
The District Court proceeded on the
dividing line," 303 F.Supp., at 282, did
premise that the finding as to the Park
not feel constrained to limit its consid-
Hill schools was irrelevant to the consid-
eration of de jure segregation in the
eration of the rest of the district, and
Park Hill area to those schools east of
began its examination of the core city
the Boulevard. The court found that by
schools by requiring that petitioners
building Barrett Elementary School west
prove all of the essential elements of de
of the Boulevard and by establishing
jure segregation-that is, stated simply,
the Boulevard as the eastern boundary
a current condition of segregation re-
of the Barrett attendance zone, the
sulting from intentional state action di-
206
Board was able to maintain for a num-
rected specifically to the core city
ber of years the Anglo character of
schools. 14 The segregated character of
the Park Hill schools. This suggests
the core city schools could not be and
that Colorado Boulevard is not to be re-
is not denied. Petitioners' proof showed
garded as the type of barrier that of it-
that at the time of trial 22 of the
self could confine the impact of the
schools in the core city area were less
Board's actions to an identifiable area
than 30% in Anglo enrollment and 11
of the school district, perhaps because a
of the schools were less than 10%
major highway is generally not such an
Anglo. 15 Petitioners also introduced
effective buffer between adjoining
substantial evidence demonstrating the
areas. Cf. Davis V. Board of School
existence of a disproportionate racial
Commissioners of Mobile County, 402
and ethnic composition of faculty and
U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577,
staff at these schools.
(1971). But this is a factual question
On the question of segregative intent,
for resolution by the District Court on
petitioners presented evidence tending to
remand. In any event, inquiry whether
show that the Board, through its actions
the District Court and the Court of Ap-
over a period of years, intentionally cre-
peals applied the correct legal standards
ated and maintained the segregated
in addressing petitioners' contention of
character of the core city schools. Re-
deliberate segregation in the core city
spondents countered this evidence by
schools is not at an end even if it be true
arguing that the segregation in these
that Park Hill may be separated from the
schools is the result of a racially neutral
"neighborhood school policy" and that
rest of the Denver school district as a
207
the acts of which petitioners complain
separate, identifiable, and unrelated unit.
are explicable within the bounds of that
14. Our Brother REHNQUIST argues in
dissent that the District Court did take
this opinion, we discussed the building of
Barrett, boundary changes and the use of
the Park Hill finding into account in
mobile units as they relate to the purpose
addressing the question of alleged de jure
for the rescission of Resolutions 1520,
segregation of the core city schools.
1524 and 1531." Obviously, the District
Infra, at 2724. He cites the following
Court was carefully limiting the comment
excerpt from a footnote to the Dis-
to the consideration being given past dis-
trict Court's opinion of March 21, 1970,
criminatory acts affecting the Park Hill
313 F.Supp., at 74-75, n. 18: "Although
schools in assessing the causes of current
past discriminatory acts may not be a
segregation of those schools.
substantial factor contributing to present
segregation, they may nevertheless be
15. In addition to these 22 schools, see 313
probative on the issue of the segregative
F.Supp., at 78, two more schools, Elyria
purpose of other discriminatory acts
and Smedley Elementary Schools, became
which are in fact a substantial factor in
less than 30% Anglo after the District
causing a present segregated situation."
Court's decision on the merits. These two
But our, Brother REHNQUIST omits the
schools were thus included in the list of
rest of the footnote: "Thus, in part I of
segregated schools. 313 F.Supp., at 92.
13 U.S. 205
413 U.S. 209 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2697
Cite as 93 S.Ct. 2686 (1973)
policy. Accepting the School Board's ex-
ples are equally as applicable to civil
planation, the District Court and the
cases as to criminal cases
eded on the
Court of Appeals agreed that a finding
Id., at 300. See also C. McCormick, Evi-
to the Park
of de jure segregation as to the core city
dence 329 (1954).
) the consid-
schools was not permissible since peti-
district, and
tioners had failed to prove "(1) a racial-
[6, 7] Applying these principles in
he core city
ly discriminatory purpose and (2) a
the special context of school desegrega-
petitioners
causal relationship between the acts
tion cases, we hold that a finding of in-
ments of de
complained of and the racial imbalance
tentionally segregative school board ac-
tated simply,
admittedly existing in those schools."
tions in a meaningful portion of a school
regation re-
445 F.2d at 1006. This assessment of
system, as in this case, creates a pre-
te action1di-
206
petitioners' proof was clearly incorrect.
sumption that other segregated school-
core city
ing within the system is not adventi-
character of
[5] Although petitioners had already
tious. It establishes, in other words, a
not be and
proved the existence of intentional
prima facie case of unlawful segregative
proof showed
school segregation in the Park Hill
design on the part of school authorities,
22 of the
schools, this crucial finding was totally
and shifts to those authorities the bur-
ea were less
ignored when attention turned to the
den of proving that other segregated
ment and 11
core city schools. Plainly, a finding of
schools within the system are not also
than 10%
intentional segregation as to a portion
the result of intentionally segregative
introduced
of a school system is not devoid of pro-
actions. This is true even if it is deter-
istrating the
bative value in assessing the school au-
mined that different areas of the school
ionate racial
thorities' intent with respect to other
district should be viewed independently
faculty and
parts of the same school system. On the
of each other because, even in that situ-
contrary where, as here, the case in-
ation, there is high probability that
volves one shcool board, a finding of in-
where school authorities have effectuat-
gative intent,
tentional segregation on its part in one
ed an intentionally segregative policy in
ic
uding to
portion of a school system is highly rele-
a meaningful portion of the school sys-
gh its actions
vant to the issue of the board's intent
tem, similar impermissible considera-
entionally cre-
with respect to the other segregated
tions have motivated their actions in
e segregated
schools in the system. This is merely
other areas of the system. We empha-
schools. Re-
an application of the well-settled evi-
size that the differentiating factor be-
evidence by
dentiary principle that "the prior doing
tween de jure segregation and so-called
tion in these
of other similar acts, whether clearly
de facto segregation to which we re-
acially neutral
a part of a scheme or not, is useful
ferred in Swann 16 is purpose or intent
and that
207
as reducing the possibility that the
to segregate. Where school authorities
ners complain
act in question was done with innocent
have been found to have practiced pur-
ounds of that
intent." 2 J. Wigmore, Evidence 200 (3d
poseful segregation in part of a school
ed. 1940). "Evidence that similar and
system, they may be expected to oppose
he building of
related offenses were committed
system-wide desegrégation, as did the
and the use of
tend[s] to show a consistent
respondents in this case, on the ground
o the purpose
pattern of conduct highly relevant to the
that their purposefully segregative ac-
lutions 1520,
issue of intent." Nye & Nissen V. Unit-
tions were isolated and individual
the District
the comment
ed States, 336 U.S. 613, 618, 69 S.Ct.
events, thus leaving plaintiffs with the
iven past dis-
766, 769, 93 L.Ed. 919 (1949). Similar-
burden of proving otherwise. But at
the Park Hill
ly, a finding of illicit intent as to a
that point where an intentionally segre-
ses of current
meaningful portion of the item under
gative policy is practiced in a meaning- 209
consideration has substantial probative
ful or significant segment of a school
chools, see 313
value on the question of illicit intent
system, as in this case, the school au-
schools, Elyria
1208 as to the remainder. See, for example,
thorities cannot be heard to argue that
chools, became
the cases cited in 2 Wigmore, supra, at
plaintiffs have proved only "isolated and
r the District
ts. These two
301-302. And "[t]he foregoing princi-
individual" unlawfully segregative ac-
in the list of
Supn at 92.
16. 402 U.S. 1, 17-18, 91 S.Ct. 1267, 1276-1277, 28 L.Ed.2d 554 (1971).
93 S.Ct.-169½
2698
93 SUPREME COURT REPORTER
413 U.S. 209
tions. In that circumstance, it is both
600, 621 (S.D.Tex.1969). Nor is this
fair and reasonable to require that the
burden-shifting principle limited to
school authorities bear the burden of
former statutory dual systems. See, e.
showing that their actions as to other
g., Davis V. School District of City of
segregated schools within the system
Pontiac, 309 F.Supp. 734, 743, 744 (E.
were not also motivated by segregative
D.Mich.1970), aff'd, 443 F.2d 573 (CA6
intent.
1971) United States V. School District
No. 151, 301 F.Supp. 201, 228 (N.D.III.
[8] This burden-shifting principle is
1969), modified on other grounds, 432
not new or novel. There are no hard-
F.2d 1147 (CA7 1970). Indeed, to say
and-fast standards governing the alloca-
that a system has a "history of segrega-
tion of the burden of proof in every sit-
tion" is merely to say that a pattern of
uation. The issue, rather, "is merely a
intentional segregation has been estab-
question of policy and fairness based on
lished in the past. Thus, be it a statu-
experience in the different situations."
tory dual system or an allegedly unitary
9 J. Wigmore, Evidence § 2486, at 275
system where a meaningful portion of the
(3d ed. 1940). In the context of racial
system is found to be intentionally segre-
segregation in public education, the
gated, the existence of subsequent or
courts, including this Court, have recog-
other segregated schooling within the
nized a variety of situations in which
same system justifies a rule imposing on
"fairness" and "policy" require state au-
the school authorities the burden of
thorities to bear the burden of explaining
proving that this segregated schooling is
actions or conditions which appear to be
not also the result of intentionally segre-
racially motivated. Thus, in Swann, 402
gative acts.
U.S., at 18, 91 S.Ct. at 1277, we ob-
served that in a system with a "history
[9, 10] In discharging that burden,
of segregation," "where it is possible to
it is not enough, of course, that the
identify a 'white school' or a 'Negro
school authorities rely upon some alleg-
school' simply by reference to the racial
edly logical, racially neutral explanation
composition of teachers and staff, the
for their actions. Their burden is to ad-
quality of school buildings and equip-
duce proof sufficient to support a find-
ment, or the organization of sports activ-
ing that segregative intent was not
ities, a prima facie case of violation of
among the factors that motivated their
substantive constitutional rights under
actions. The courts below attributed
the Equal Protection Clause is shown."
much significance to the fact that many
Again, in a school system with a history
of the Board's actions in the core city
of segregation, the discharge of a dis-
area antedated our decision in Brown.
proportionately large number of Negro
We reject any suggestion that remote-
teachers incident to desegregation
ness in time has any relevance to the is-
"thrust[s] upon the School Board the
sue of intent. If the actions of school
burden of justifying its conduct by clear
authorities were to any degree motivat-
and convincing evidence." Chambers V.
ed by segregative intent and the segre-
Hendersonville City Board of Education,
gation resulting from those actions con-
364 F.2d 189, 192 (CA4 1966) (en
tinues to exist, the fact of remoteness in [211
banc). See also United States V. Jeffer-
time certainly does not make those ac-
son County Board of Education, 372 F.
tions any less "intentional."
|210 2d 836, 887-888 (CA5 1966), aff'd en
banc, 380 F.2d 385 (1967) ; North Caro-
[11-13] This is not to say, however,
lina Teachers Assn. V. Asheboro City
that the prima facie case may not be
Board of Education, 393 F.2d 736,
met by evidence supporting a finding
743 (CA4 1968) (en banc) ; Williams V.
that a lesser degree of segregated
Kimbrough, 295 F.Supp. 578, 585 (W.D.
schooling in the core city area would not
La.1969) ; Bonner V. Texas City Inde-
have resulted even if the Board had not
pendent School District, 305 F.Supp.
acted as it did. In Swann, we suggested
413 U.S. 213 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2699
Cite as 93 S.Ct. 2656 (1973)
that at some point in time the relation-
the school authorities have been found
ship between past segregative acts and
to have practiced de jure segregation in
present segregation may become so at-
a meaningful portion of the school sys-
tenuated as to be incapable of support-
tem by techniques that indicate that the
ing a finding of de jure segregation
"neighborhood school" concept has not
warranting judicial intervention. 402
been maintained free of manipulation.
U.S. at 31-32, 91 S.Ct., at 1283-1284.
Our observations in Swann, supra, at 28,
See also Hobson V. Hansen, 269 F.Supp.
91 S.Ct., at 1882, are particularly in-
401, 495 (D.C.1967), aff'd sub nom.
structive on this score:
Smuck V. Hobson, 132 U.S.App.D. 372,
"Absent a constitutional violation
408 F.2d 175 (1969).¹⁷ We made it
there would be no basis for judicially
clear, however, that a connection be-
ordering assignment of students on a
tween past segregative acts and present
racial basis. All things being equal,
segregation may be present even when
with no history of discrimination, it
not apparent and that close examination
might well be desirable to assign pu-
is required before concluding that the
pils to schools nearest their homes.
connection does not exist. Intentional
But all things are not equal in a sys-
school segregation in the past may have
tem that has been deliberately con-
been a factor in creating a natural envi-
structed and maintained to enforce ra-
ronment for the growth of further seg-
cial segregation.
regation. Thus, if respondent School
Board cannot disprove segregative in-
'Racially neutral' assign-
tent, it can rebut the prima facie case
ment plans proposed by school au-
only by showing that its past segrega-
thorities to a district court may be
tive acts did not create or contribute to
inadequate; such plans may fail to
the current segregated condition of the
counteract the continuing effects of
past school segregation resulting from
core city schools.
discriminatory location of school sites
or distortion of school size in order
[14] The respondent School Board
invoked at trial its "neighborhood school
to achieve or maintain an artificial
policy" as explaining racial and ethnic
racial separation. When school au-
concentrations within the core city
thorities present a district court
212 schools, arguing that since the core city
with a 'loaded game board,' affirm-
ative action in the form of reme-
area population had long been Negro and
Hispano, the concentrations were neces-
dial altering of attendance zones is
sarily the result of residential patterns
proper to achieve truly nondiscrimin-
atory assignments. In short, an as-
and not of purposefully segregative poli-
signment plan is not acceptable simply
cies. We have no occasion to consider in
because it appears to be neutral."
this case whether a "neighborhood
Thus, respondent School Board having
school policy" of itself will justify racial
213
been found to have practiced deliberate
or ethnic concentrations in the absence
racial segregation in schools attended by
of a finding that school authorities have
over one-third of the Negro school popu-
committed acts constituting de jure seg-
lation, that crucial finding establishes a
regation. It is enough that we hold that
prima facie case of intentional segrega-
the mere assertion of such a policy is
tion in the core city schools. In such
not dispositive where, as in this case,
case, respondent's neighborhood school
17. It may be that the District Court and
sense of "non-attenuation." That is a
Court of Appeals were applying this test
factor which becomes relevant only after
in holding that petitioners had failed to
past intentional actions resulting in
prove that the Board's actions "caused"
segregation have been established. At
the current condition of segregation in the
that stage. the burden becomes the school
core city schools. But, if so, certainly
authorities' to show that the current
plaintiffs in a school desegregation case
segregation is in no way the result of
are not required to prove "cause" in the
those past segregative actions.
2700
93 SUPREME COURT REPORTER
413 U.S. 213
policy is not to be determinative "simply
school" concept, either were not taken in
because it appears to be neutral."
effectuation of a policy to create or
maintain segregation in the core city
IV
schools, or, if unsuccessful in that ef-
fort, were not factors in causing the ex-
In summary, the District Court on re-
isting condition of segregation in these
mand, first, will afford respondent
schools. Considerations of "fairness"
School Board the opportunity to prove
and "policy" demand no less in light of
its contention that the Park Hill area is
the Board's intentionally segregative ac-
a separate, identifiable and unrelated
tions. If respondent Board fails to re-
section of the school district that should
but petitioners' prima facie case, the
be treated as isolated from the rest of
District Court must, as in the case of
the district. If respondent School Board
Park Hill, decree all-out desegregation of
fails to prove that contention, the Dis-
the core city schools.
trict Court, second, will determine
whether respondent School Board's con-
The judgment of the Court of Appeals
duct over almost a decade after 1960 in
is modified to vacate instead of reverse
carrying out a policy of deliberate racial
the parts of the Final Decree that con-
segregation in the Park Hill schools con-
cern the core city schools, and the case
stitutes the entire school system a dual
is remanded to the District Court for
school system. If the District Court de-
further proceedings consistent with this
termines that the Denver school system
opinion.¹
18
is a dual school system, respondent
Modified and remanded.
School Board has the affirmative duty
It is SO ordered.
to desegregate the entire system "root
and branch." Green V. County School
Mr. Chief Justice BURGER, concurs
Board, 391 U.S., at 438, 88 S.Ct. at
in the result.
1694. If the District Court deter-
mines, however, that the Denver school
Mr. Justice WHITE took no part in
system is not a dual school system by
the decision of this case.
reason of the Board's actions in Park
Hill, the court, third, will afford respon-
Mr. Justice DOUGLAS.
dent School Board the opportunity to re-
but petitioners' prima facie case of in-
While I join the opinion of the Court,
tentional segregation in the core city
I agree with my Brother POWELL that
schools raised by the finding of inten-
there is, for the purposes of the Equal [215
tional segregation in the Park Hill
Protection Clause of the Fourteenth
schools. There, the Board's burden is to
Amendment as applied to the school cas-
show that its policies and practices with
es, no difference between de facto and
respect to schoolsite location, school
de jure segregation. The school board
size, school renovations and additions,
is a state agency and the lines that it
student-attendance zones, student as-
draws, the locations it selects for school
signment and transfer options, mobile
sites, the allocation it makes of students,
classroom units, transportation of stu-
the budgets it prepares are state action
214 dents, assignment of faculty and staff,
for Fourteenth Amendment purposes.
etc., considered together and premised
As Judge Wisdom cogently stated in
on the Board's so-called "neighborhood
United States V. Texas Education Agen-
18. We therefore do not reach, and intimate
decreed
the only feasible and
no view upon, the merits of the holding
constitutionally acceptable program
of the District Court, premised upon its
is a system of desegregation and
erroneous finding that the situation "is
integration which provides compensatory
more like de facto segregation," 313 F.
education in an integrated environment."
Supp., at 73, that nevertheless, although
Id., at 96.
all-out desegregation "could not be
413 U.S. 217 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2701
Cite as 93 S.Ct. 2686 (1973)
cy, 467 F.2d 848, segregated schools are
the constitutional sense because the
often created, not by dual school systems
force of law is placed behind those cove-
decreed by the legislature, but by the
nants.
administration of school districts by
There is state action in the constitu-
school boards. Each is state action
tional sense when public funds are dis-
within the meaning of the Fourteenth
persed by urban development agencies to
Amendment. "Here school authorities
build racial ghettoes.
assigned students, faculty, and profes-
sional staff; employed faculty and staff;
Where the school district is racially
chose sites for schools; constructed new
mixed and the races are segregated in
schools and renovated old ones; and
separate schools, where black teachers
drew attendance zone lines. The natural
are assigned almost exclusively to black
and foreseeable consequence of these ac-
schools where the school board closed ex-
tions was segregation of Mexican-Ameri-
isting schools located in fringe areas and
cans. Affirmative action to the con-
built new schools in black areas and in
trary would have resulted in desegrega-
distant white areas, where the school
tion. When school authorities, by their
board continued the "neighborhood"
actions, contribute to segregation in ed-
school policy at the elementary level,
ucation, whether by causing additional
these actions constitute state action.
segregation or maintaining existing seg-
They are of a kind quite distinct from
regation, they deny to the students equal
the classical de jure type of school seg-
protection of the laws.
regation. Yet calling them de facto is a
misnomer, as they are only more subtle
"We need not define the quantity of
types of state action that create or
state participation which is a prerequi-
maintain a wholly or partially segregat-
site to a finding of constitutional viola-
ed school system. See Kelly V. Guinn, 9
tion. Like the legal concepts of 'the rea-
Cir., 456 F.2d 100.
sonable man', 'due care', 'causation', 'pre-
ponderance of the evidence', and 'beyond
When a State forces, aids, or abets, or
a reasonable doubt', the necessary de-
helps create a racial "neighborhood," it
gree of state involvement is incapable of
is a travesty of justice to treat that
precise definition and must be defined
neighborhood as sacrosanct in the sense
on a case-by-case basis. Suffice it to
that its creation is free from the taint
say that school authorities here played a
of state action.
significant role in causing or perpetu-
The Constitution and Bill of Rights
ating unequal educational opportunities
have described the design of a pluralis-
for Mexican-Americans, and did SO on a
tic society. The individual has thefright
1217
system-wide basis." Id., at 863-864
to seek such companions as he desires.
1216 These latter acts are often said to cre-
But a State is barred from creating by
ate de facto as contrasted with de jure
one device or another ghettoes that deter-
segregation. But, as Judge Wisdom ob-
mine the school one is compelled to at-
tend.
serves, each is but another form of de
jure segregation.
Mr. Justice POWELL concurring in
I think it is time to state that there is
part and dissenting in part.
no constitutional difference between de
jure and de facto segregation, for each
I concur in the remand of this case
is the product of state actions or poli-
for further proceedings in the District
cies. If a "neighborhood" or "geograph-
Court, but on grounds that differ from
ical" unit has been created along racial
those relied upon by the Court.
lines by reason of the play of restrictive
This is the first school desegregation
covenants that restrict certain areas to
case to reach this Court which involves a
"the elite," leaving the "undesirables" to
major city outside the South. It comes
move elsewhere, there is state action in
from Denver, Colorado, a city and a
2702
93 SUPREME COURT REPORTER
413 U.S. 217
State which have not operated public
where the Anglo population largely re-
schools under constitutional or statutory
sides, the schools are predominantly
provisions which mandated or permitted
Anglo, if not entirely so.
racial segregation.1 Nor has it been
The situation in Denver is generally
argued that any other legislative actions
comparable to that in other large cities
(such as zoning and housing laws) con-
across the country in which there is a
tributed to the segregation which is at
substantial minority population and
issue.2 The Court has inquired only to
where desegregation has not been or-
what extent the Denver public school au-
dered by the federal courts. There is
thorities may have contributed to the
segregation in the schools of many of
school segregation which is acknowl-
these cities fully as pervasive as that in
edged to exist in Denver.
southern cities prior to the desegrega-
The predominantly minority schools
tion decrees of the past decade and a
are located in two areas of the city re-
half. The focus of the school desegrega-
ferred to as Park Hill and the core city
tion problem has now shifted from the
area. The District Court considered
South to the country as a whole. Un-
[218 that a school with a concentration of
willing and footdragging as the process
70% to 75% "Negro or Hispano stu-
was in most places, substantial progress
dents" was identifiable as a segregated
toward achieving integration has been
school. 313 F.Supp. 61, 77. Wherever
made in Southern States.³ No compara-
one may draw this line, it is undisputed
ble progress has been made in many
that most of the schools in these two
nonsouthern cities with large minority
areas are in fact heavily segregated in
populations 4 primarily because of the de
the sense that their student bodies are
facto/de jure distinction nurtured by
1219
overwhelmingly composed of non-Anglo
the courts and accepted complacently by
children. The city-wide school mix in
many of the same voices which de-
Denver is 66% Anglo, 14% Negro, and
nounced the evils of segregated schools
20% Hispano. In areas of the city
in the South.5 But if our national con-
1. Article IX, § 8, of the Colorado Con-
4. The 1971 HEW Enrollment Survey
stitution has expressly prohibited any
dramatized the segregated character of
"classification of pupils
on ac-
public school systems in many non-
count of race or color."
southern cities. The percentage of Negro
pupils which attended schools more than
2. See, e. g., Swann V. Charlotte-Mecklen-
80% black was 91.3 in Cleveland, Ohio;
burg Board of Education, 402 U.S. 1,
97.8 in Compton, California; 78.1 in
23, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554
Dayton, Ohio; 78.6 in Detroit, Michigan
(1971) :
95.7 in Gary, Indiana; 86.4 in Kansas
"We do not reach
the question
City, Missouri; 86.6 in Los Angeles, Cali-
whether a showing that school segregation
fornia; 78.8 in Milwaukee, Wisconsin
is a consequence of other types of state
91.3 in Newark, New Jersey; 89.8 in St.
action, without any discriminatory action
Louis, Missouri. The full data from the
by the school authorities, is a constitu-
Enrollment Survey may be found in 118
tional violation requiring remedial action
Cong.Rec. 563-566 (1972).
by a school desegregation decree." The
term "state action," as used herein, thus
5. As Senator Ribicoff recognized:
refers to actions of the appropriate public
"For years we have fought the battle of
school authorities.
integration primarily in the South where
the problem was severe. It was a long,
3. According to the 1971 Department of
Health, Education, and Welfare (HEW)
arduous fight that deserved to be fought
estimate, 43.9% of Negro pupils attended
and needed to be won.
majority white schools in the South as
"Unfortunately, as the problem of racial
opposed to only 27.8% who attended such
isolation has moved north of the Mason-
schools in the North and West. Fifty-
Dixon line, many northerners have bid an
seven percent of all Negro pupils in the
evasive farewell to the 100-year struggle
North and West attend schools with over
for racial equality. Our motto seems to
80% minority population as opposed to
32.2% who do so in the South. 118 Cong.
Rec. 564 (1972).
413 U.S. 221
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2703
Cite as 93 S.Ct. 2686 (1973)
cern is for those who attend such
essentially negative: It was impermissi-
schools, rather than for perpetuating a
ble under the Constitution for the
legalism rooted in history rather than
States, or their instrumentalities to
present reality, we must recognize that
force children to attend segregated
the evil of operating separate schools is
schools. The forbidden action was de
no less in Denver than in Atlanta.
jure, and the opinion in Brown I was
construed-for some years and by many
I
courts-as requiring only state neutrali-
In my view we should abandon a dis-
ty, allowing "freedom of choice" as to
tinction which long since has outlived its
schools to be attended SO long as the
time, and formulate constitutional prin-
State itself assured that the choice was
ciples of national rather than merely re-
genuinely free of official restraint.⁶
gional application. When Brown V.
But the doctrine of Brown I, as ampli-
Board of Education, 347 U.S. 483, 74 S.
fied by Brown II, 349 U.S. 294, 75 S.Ct.
Ct. 686, 98 L.Ed. 873 (1954) (Brown I),
753, 99 L.Ed. 1083 (1955), did not re-
220 was decided, the distinction between de
tain its original meaning. In a series of
jure and de facto segregation was con-
decisions extending from 1954 to 1971
sistent with the limited constitutional
the concept of state neutrality was 221
rationale of that case. The situation
transformed into the present constitu-
confronting the Court, largely confined
tional doctrine requiring affirmative
to the Southern States, was officially im-
state action to desegregate school sys-
posed racial segregation in the schools
tems.⁷ The keystone case was Green
extending back for many years and usu-
V. County School Board, 391 U.S. 430,
ally embodied in constitutional and stat-
437-438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d
utory provisions.
716 (1968), where school boards were de-
The great contribution of Brown I
clared to have "the affirmative duty to
was its holding in unmistakable terms
take whatever steps might be necessary
that the Fourteenth Amendment forbids
to convert to a unitary system in which
state-compelled or state-authorized seg-
racial discrimination would be eliminat-
regation of public schools. 347 U.S., at
ed root and branch." The school system
488, 493-495, 74 S.Ct. at 688, 691-692.
before the Court in Green was operating
Although some of the language was more
in a rural and sparsely settled county
expansive, the holding in Brown I was
where there were no concentrations of
have been 'Do to southerners what you
tion is not against segregation as such.
do not want to do to yourself.'
A state or a school district offends
"Good reasons have always been offered,
no constitutional requirement when it
of course, for not moving vigorously ahead
grants to all students uniformly an unre-
in the North as well as the South.
stricted freedom of choice as to schools
"First, it was that the problem was
attended, SO that each pupil, in effect, as-
worse in the South. Then the facts began
signs himself to the school he wishes to
to show that that was no longer true.
attend." The case was later vacated
"We then began to hear the de facto-de
and remanded by this Court, which ex-
jure refrain.
pressed no view on the merits of the de-
"Somehow residential segregation in the
segregation plans submitted. 382 U.S.
North was accidental or de facto and that
103, 105, 86 S.Ct. 224, 225, 15 L.Ed.2d
made it better than the legally supported
187 (1965). See also Bell V. School City
de jure segregation of the South. It was
of Gary, Ind., 324 F.2d 209 (CA7 1963) ;
a hard distinction for black children in
Downs V. Board of Education, 336 F.2d
totally segregated schools in the North to
988 (CA10 1964); Deal V. Cincinnati
understand, but it allowed us to avoid the
Board of Education, 369 F.2d 55 (CA6
problem." 118 Cong.Rec. 5455 (1972).
1966).
6. See, e. g., Bradley V. School Board, 345
7. For a concise history and commentary on
F.2d 310, 316 (CA4, 1965) (en banc) :
the evolution, see generally A. Bickel,
"It has been held again and again
The Supreme Court and the Idea of
that the Fourteenth Amendment prohibi-
Progress 126-130 (1970).
2704
93 SUPREME COURT REPORTER
413 U.S. 221
white and black populations, no neigh-
Despite this recognition of a fundamen-
borhood school system (there were only
tally different problem from that in-
two schools in the county), and none of
volved in Green, the Court nevertheless
the problems of an urbanized school
held that the affirmative-duty rule of
district.8 The Court properly identified
Green was applicable, and prescribed for
the freedom-of-choice program there as
a metropolitan school system with 107
a subterfuge, and the language in Green
schools and some 84,000 pupils essential-
imposing an affirmative duty to convert
ly the same remedy-elimination of seg-
to a unitary system was appropriate on
regation "root and branch"-which had
the facts before the Court. There was
been formulated for the two schools and
however reason to question to what ex-
1,300 pupils of New Kent County.
tent this duty would apply in the vastly
different factual setting of a large city
In Swann, the Court further noted it
with extensive areas of residential seg-
was concerned only with States having
regation, presenting problems and call-
"a long history of officially imposed
ing for solutions quite different from
segregation and the duty of school au-
those in the rural setting of New Kent
thorities in those States to implement
County, Virginia.
Brown 1. 402 U.S., at 5-6, 91 S.Ct., at
1271. In SO doing, the Court refrained
But the doubt as to whether the af-
from even considering whether the evo-
firmative-duty concept would flower into
lution of constitutional doctrine from
a new constitutional principle of general
Brown I to Green/Swann undercut
application was laid to rest by Swann V.
whatever logic once supported the de
Charlotte-Mecklenburg Board of Educa-
facto/de jure distinction. In imposing
tión, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.
on metropolitan southern school districts
2d 554 (1971), in which the duty artic-
222 ulated in Green was applied to thefurban
an affirmative duty, entailing large-
scale transportation of pupils, to elimi-
school system of metropolitan Charlotte,
North Carolina. In describing the resi-
nate segregation in the schools, the
Court required these districts to alle-
dential patterns in Charlotte, the Court
noted the "familiar phenomenon" in the
viate conditions which in large part did
metropolitan areas of minority groups
not result from historic, state-imposed
being "concentrated in one part of the
de jure segregation. Rather, the famil-
city," 402 U.S., at 25, 91 S.Ct., at 1280,
iar root cause of segregated schools in
and acknowledged that:
all the biracial metropolitan areas of our
country is essentially the same: one of
[223
"Rural areas accustomed for half a
segregated residential and migratory
century to the consolidated school sys-
patterns the impact of which on the ra-
tems implemented by bus transporta-
cial composition of the schools was often
tion could make adjustments more
perpetuated and rarely ameliorated by
readily than metropolitan areas with
action of public school authorities. This
dense and shifting population, numer-
is a national, not a southern, phenome-
ous schools, congested and complex
non. And it is largely unrelated to
traffic patterns." 402 U.S., at 14, 91
whether a particular State had or did
S.Ct., at 1275.
not have segregative school laws.9
8. See also the companion cases in Raney
"No elaborate analysis is necessary to
V. Board of Education, 391 U.S. 443, 88
conclude from these figures that a high
S.Ct. 1697, 20 L.Ed.2d 727 (1968), and
degree of residential segregation based on
Monroe v. Board of Commissioners, 391
race is a universal characteristic of Amer-
U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733
ican cities. This segregation is found in
(1968), neither of which involved large
the cities of the North and West as well
urban or metropolitan areas.
as of the South; in large cities as well as
small in nonindustrial cities as well as
9. As Dr. Karl Taeuber states in his article,
industrial; in cities with hundreds of
Residential Segregation, 213 Scientific
thousands of Negro residents as well as
American 12, 14 (Aug. 1965) :
those with only a few thousand, and in
413
U.S. 225 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2705
Cite as 93 S.Ct. 2686 (1973)
Whereas Brown I rightly decreed the the duly constituted public authorities (I
elimination of state-imposed segregation
will usually refer to them collectively as
in that particular section of the country
the "school board") are sufficiently
where it did exist, Swann imposed obli-
responsible 10 to warrant imposing upon
gations on southern school districts to
them a nationally applicable burden to
eliminate conditions which are not re-
demonstrate they nevertheless are oper-
gionally unique but are similar both in
ating a genuinely integregated school
origin and effect to conditions in the
system.
rest of the country. As the remedial ob-
ligations of Swann extend far beyond
A
the elimination of the outgrowths of the
state-imposed segregation outlawed in
The principal reason for abandon-
Brown, the rationale of Swann points in-
ment of the de jure/de facto distinction
evitably toward a uniform, constitution-
is that, in view of the evolution of the
al approach to our national problem of
holding in Brown I into the affirmative-
school segregation.
duty doctrine, the distinction no longer
can be justified on a principled basis.
In decreeing remedial requirements for
II
the Charlotte/Mecklenburg school dis-
The Court's decision today, while ad-
trict, Swann dealt with a metropolitan,
hering to the de jure/de facto distinc-
urbanized area in which the basicicauses
225
1224 tion, will require the application of the
of segregation were generally similar to
Green/Swann doctrine of "affirmative
those in all sections of the country, and
duty" to the Denver School Board de-
also largely irrelevant to the existence of
spite the absence of any history of
historic, state-imposed segregation at
state-mandated school segregation. The
the time of the Brown decision. Fur-
only evidence of a constitutional viola-
ther, the extension of the affirmative-
tion was found in various decisions of
duty concept to include compulsory stu-
the School Board. I concur in the
dent transportation went well beyond
Court's position that the public school
the mere remedying of that portion of
authorities are the responsible agency of
school segregation for which former
the State, and that if the affirmative-
state segregation laws were ever respon-
duty doctrine is sound constitutional law
sible. Moreover, as the Court's opinion
for Charlotte, it is equally so for Den-
today abundantly demonstrates, the
ver. I would not, however, perpetuate
facts deemed necessary to establish de
the de jure/de facto distinction nor
jure discrimination present problems of
would I leave to petitioners the initial
subjective intent which the courts can-
tortuous effort of identifying "segrega-
not fairly resolve.
tive acts" and deducing "segregative in-
At the outset, one must try to identify
tent." I would hold, quite simply, that
the constitutional right which is being
where segregated public schools exist
enforced. This is not easy, as the
within a school district to a substantial
precedents have been far from explicit.
degree, there is a prima facie case that
In Brown I, after emphasizing the im-
cities that are progressive in their em-
a substantial degree in the schools of a
ployment practices and civil rights poli-
particular district. It is recognized, of
cies as well as those that are not."
course, that this term is relative and pro-
In his book, Negroes in Cities (1965), Dr.
vides no precise standards. But circum-
Taeuber stated that residential segrega-
stances, demographic and otherwise, vary
tion exists "regardless of the character
from district to district and hard-and-fast
of local laws and policies, and regardless
rules should not be formulated. The
of the extent of other forms of segrega-
existence of a substantial percentage of
tion or discrimination." Id., at 36.
schools populated by students from one
10. A prima facie case of constitutional vio-
race only or predominantly so populated,
lation exists when segregation is found to
should trigger the inquiry.
93 S.Ct.-170
2706
93 SUPREME COURT REPORTER
413 U.S. 225
portance of education, the Court said
stitutional standards if the responsible
that:
authorities had taken appropriate steps
"Such an opportunity, where the state
to (i) integrate faculties and adminis-
has undertaken to provide it, is a
tration; (ii) scrupulously assure equali-
right which must be made available to
ty of facilities, instruction, and curricu-
all on equal terms." 347 U.S., at 493,
lum opportunities throughout the dis-
74 S.Ct. at 691.
trict; (iii) utilize their authority to
draw attendance zones to promote inte-
In Brown II, the Court identified the
gration; and (iv) locate new schools,
"fundamental principle" enunciated in
close old ones, and determine the size
Brown I as being the unconstitutionality
and grade categories with this same ob-
of "racial discrimination in public edu-
jective in mind. Where school authori-
cation," 349 U.S., at 298, 75 S.Ct., at 755,
ties decide to undertake the transporta-
and spoke of "the personal interest of
tion of students, this also must be with
the plaintiffs in admission to public
integrative opportunities in mind.
schools as soon as practicable on a non-
The foregoing prescription is not in-
discriminatory basis." 349 U.S., at 300,
tended to be either definitive or all-in-
75 S.Ct., at 756. Although this and simi-
clusive, but rather an indication of the
lar language is ambiguous as to the spe-
contour characteristics of an integrated
cific constitutional right, it means-as a
school system in which all citizens and
minimum-that one has the right not to
pupils may justifiably be confident that
be compelled by state action to attend a
racial discrimination is neither practiced
segregated school system. In the evolu-
nor tolerated. An integrated school sys-
tionary process since 1954, decisions of
tem does not mean-and indeed could
this Court have added a significant gloss
227
not mean in view of the residential pat-
to this original right. Although no-
terns of most of our major metropolitan
where expressly articulated in these
areas-that every school must in fact be
terms, I would now define it as the
an integrated unit. A school which hap-
right, derived from the Equal Protection
pens to be all or predominantly white
Clause to expect that once the State has
or all or predominantly black is not a
226 assumed responsibility for education, lo-
"segregated" school in an unconstitu-
cal school boards will operate integrated
tional sense if the system itself is a gen-
school systems within their respective
uinely integrated one.
districts. 11 This means that school au-
thorities, consistent with the generally
Having school boards operate an inte-
accepted educational goal of attaining
grated school system provides the best
quality education for all pupils, must
assurance of meeting the constitutional
make and implement their customary de-
requirement that racial discrimination,
cisions with a view toward enhancing in-
subtle or otherwise, will find no place in
tegrated school opportunities.
the decisions of public school officials.
Courts judging past school board actions
The term "integrated school system"
with a view to their general integrative
presupposes, of course, a total absence
effect will be best able to assure an ab-
of any laws, regulations, or policies sup-
sence of such discrimination while
portive of the type of "legalized" segre-
avoiding the murky, subjective judg-
gation condemned in Brown. A system
ments inherent in the Court's search for
would be integrated in accord with con-
"segregative intent." Any test resting
11. See discussion in Part III, infra, of the
operate an integrated school system before
remedial action which is appropriate to
a court may order desegregative steps by
accomplish desegregation where a court
way of remedy. These are two distinct
finds that a school board has failed to
steps which recognize the necessity of
operate an integrated school system with-
proving the constitutional violation before
in its district. Plaintiffs must, however,
desegregative remedial action can be
establish the failure of a school board to
ordered.
413 U.S. 229 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2707
Cite as 93 S.Ct. 2686 (1973)
on so nebulous and elusive an element as
ative duty to desegregate solely in those
a school board's segregative "intent"
States with state-imposed segregation at
provides inadequate assurance that mi-
the time of the Brown decision. The
nority children will not be short-changed
history of state-imposed segregation is
in the decisions of those entrusted with
more widespread in our country than the
the nondiscriminatory operation of our
de jure/de facto distinction has tradi-
public schools.
tionally cared to recognize. 12 As one
commentator has noted:
Public schools are creatures of the
"[T]he three court of appeals deci-
State, and whether the segregation is
sions denying a constitutional duty to
state-created or state-assisted or merely
abolish de facto segregation all arose
state-perpetuated should be irrelevant to
in cities-Cincinnati, Gary, and Kan-
constitutional principle. The school
sas City, Kansas-where racial segre-
board exercises pervasive and continuing
gation in schools was formerly man-
responsibility over the long-range plan-
dated by state or local law. [Deal V.
ning as well as the daily operations of
Cincinnati Board of Education, 369 F.
the public school system. It sets policies
2d 55 (CA6 1966), cert. denied, 389
on attendance zones, faculty employment
U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114
and assignments, school construction,
(1967) Downs V. Board of Education,
closings and consolidations, and myriad
336 F.2d 988 (CA10 1964), cert. de-
other matters. School board decisions
nied, 380 U.S. 914, 85 S.Ct. 898, 13 L.
obviously are not the sole cause of segre-
Ed.2d 800 (1965) ; Bell v. School City
gated school conditions. But if, after
of Gary, Ind., 324 F.2d 209 (CA7
such detailed and complete public super-
1963), cert. denied, 377 U.S. 924, 84
vision, substantial school segregation
S.Ct. 1223, 12 L.Ed.2d 216 (1964).]
still persists, the presumption is strong
Ohio discarded its statute in 1887, In-
that the school board, by its acts or
diana in 1949, and Kansas City not
omissions, is in some part responsible.
until the advent of Brown. If Negro
Where state action and supervision are
and white parents in Mississippi are
229
228 so pervasive and where, after years of
required to bus their children to dis-
such action, segregated schools continue
tant schools on the theory that the
to exist within the district to a substan-
consequences of past de jure segrega-
tial degree, this Court is justified in
tion cannot otherwise be dissipated,
finding a prima facie case of a constitu-
should not the same reasoning apply
tional violation. The burden then must
in Gary, Indiana, where no more than
fall on the school board to demonstrate
five years before Brown the same
it is operating an "integrated school sys-
practice existed with presumably the
tem."
same effects?" Goodman, De Facto
School Segregation: A Constitutional
It makes little sense to find prima fa-
and Empirical Analysis, 60 Calif.L.
cie violations and the consequent affirm-
Rev. 275, 297 (1972). 13
12. Indeed, if one goes back far enough, it
nonexhaustive research that no discrim-
is probable that all racial segregation,
inatory laws appeared on the books
wherever occurring and whether or not
at one time or another." Id. at 1315.
confined to the schools, has at some time
been supported or maintained by govern-
13. The author continues:
ment action. In Beckett V. School Board,
"True, the earlier the policy of segrega-
308 F.Supp. 1274, 1311-1315 (ED Va.
tion was abandoned the less danger there
1969), Judge Hoffman compiled a sum-
is that it continues to operate covertly, is
mary of past public segregative action
significantly responsible for present day
which included examples from a great
patterns of residential segregation, or has
majority of States. He concluded that
contributed materially to present com-
"[o]nly as to the states of Maine, New
munity attitudes toward Negro schools.
Hampshire, Vermont, Washington, Neva-
But there is no reason to suppose that
da, and Hawaii does it appear from this
1954 is a universally appropriate dividing
2708
93 SUPREME COURT REPORTER
413 U.S. 229
Not only does the de jure/de facto
Board of Education, 380 F.2d 385, 397
distinction operate inequitably on com-
(CA5 1967) (Gewin, J., dissenting). 14
munities in different sections of the
The Court today does move for the
country, more importantly, it disadvan-
tages minority children as well. As the
first time toward breaking down past
Fifth Circuit stated:
sectional disparities, but it clings ten-
uously to its distinction. It searches for
"The Negro children in Cleveland,
de jure action in what the Denver
Chicago, Los Angeles, Boston, New
School Board has done or failed to do,
York, or any other area of the nation
and even here the Court does not rely
which the opinion classifies under de
upon the results or effects of the
facto segregation, would receive little
Board's conduct but feels compelled to
comfort from the assertion that the
find segregative intent: 15
racial make-up of their school system
does not violate their constitutional
"We emphasize that the differentiat-
rights because they were born into a
ing factor between de jure segrega-
de facto society, while the exact same
tion and so-called de factofsegregation
231
racial make-up of the school system in
to which we referred in Swann is pur-
the 17 Southern and border states vio-
pose or intent to segregate." Supra,
|230
lates the constitutional rights of their
at 2697 (emphasis is the Court's).
counterparts, or even their blood
The Court's insistence that the "dif-
brothers, because they were born into
ferentiating factor" between de jure and
a de jure society. All children every-
de facto segregation be "purpose or in-
where in the nation are protected by
tent" is difficult to reconcile with the
the Constitution, and treatment which
language in SO recent a case as Wright
violates their constitutional rights in
V. Council of City of Emporia, 407 U.S.
one area of the country, also violates
451, 92 S.Ct. 2196, 33 L.Ed.2d 51
such constitutional rights in another
(1972). In holding there that "motiva-
area." Cisneros V. Corpus Christi In-
tion" is irrelevant, the Court said:
dependent School District, 467 F.2d
"In addition, an inquiry into the 'dom-
142, 148 (CA5 1972) (en banc), quot-
inant' motivation of school authorities
ing United States V. Jefferson County
is as irrelevant as it is fruitless. The
line between de jure segregation that may
that if such an intent is found with
safely be assumed to have spent itself and
respect to some schools in a system, the
that which may not. For many remedial
burden-normally on the plaintiffs—
purposes, adoption of an arbitrary but
shifts to the defendant school authorities
easily administrable cutoff point might
to prove a negative: namely, that their
not be objectionable. But in a situation
purposes were benign, supra, at 2697-
such as school desegregation, where both
2698.
the rights asserted and the remedial
The Court has come a long way since
burdens imposed are of such magnitude,
Brown I. Starting from the unassailable
and where the resulting sectional dis-
de jure ground of the discriminatory con-
crimination is passionately resented, it
stitutional and statutory provisions of
is surely questionable whether such
some States, the new formulation-still
arbitrariness is either politically or
professing fidelity to the de jure doctrine
morally acceptable."
-is that desegregation will be ordered
14. See Bickel, supra, n. 7, at 119:
despite the absence of any segregative
"If a Negro child perceives his separa-
laws if: (i) segregated schools in fact
tion as discriminatory and invidious, he
exist; (ii) a court finds that they result
is not, in a society a hundred years re-
from some action taken with segregative
moved from slavery, going to make fine
intent by the school board; (iii) such
distinctions about the source of a par-
action relates to any "meaningful seg-
ticular separation."
ment" of the school system and (iv) the
school board cannot prove that its in-
15. The Court today does not require, how-
tentions with respect to the remainder of
ever, a segregative intent with respect to
the system were nonsegregative.
the entire school system, and indeed holds
413 U.S. 233
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2709
Cite as 93 S.Ct. 2686 (1973)
mandate of Brown II was to desegre-
thousand jurors called in the past 25
gate schools, and we have said that
years. The result bespeaks discrimi-
'[t]he measure of any desegregation
nation, whether or not it was a con-
plan is its effectiveness.' Davis V.
scious decision on the part of any in-
School Commissioners of Mobile Coun-
dividual jury commissioner." Her-
ty, 402 U.S. 33, 37 [91 S.Ct. 1289,
nandez V. Texas, 347 U.S. 475, 482, 74
1292, 28 L.Ed.2d 577]. Thus, we have
S.Ct. 667, 672, 98 L.Ed. 866 (1954).
focused upon the effect-not the pur-
(Emphasis added.)
pose or motivation-of a school
board's action in determining whether
B
it is a permissible method of disman-
There is thus no reason as a matter of
tling a dual system.
constitutional principle to adhere to the
Though the purpose of the
de jure/de facto distinction in school de-
new school districts was found to be
segregation cases. In addition, there
discriminatory in many of these cases,
are reasons of policy and prudent judi-
the courts' holdings rested not on mo-
cial administration which point strongly
tivation or purpose, but on the effect
toward the adoption of a uniform na-
of the action upon the dismantling of
tional rule. The litigation heretofore
the dual school systems involved. That
centered in the South already is surfac-
was the focus of the District Court in
ing in other regions. The decision of
this case, and we hold that its ap-
the Court today, emphasizing as it does
proach was proper." 407 U.S., at 462,
the elusive element of segregative in-
92 S.Ct., at 2203.
tent, will invite numerous desegregation
suits in which there can be little hope of
I can discern no basis in law or logic for
uniformity of result.
holding that the motivation of school
board action is irrelevant in Virginia
The issue in these cases will not be
and controlling in Colorado. It may be
whether segregated education exists.
argued, of course, that in Emporia a
This will be conceded in most of them.
232 prior constitutional violation had already
The litigation will focus as a conse-
233
been proved and that this justifies the
quence of the Court's decision on wheth-
distinction. The net result of the
er segregation has resulted in any
Court's language, however, is the appli-
"meaningful or significant" portion of a
cation of an effect test to the actions of
school system from a school board's
southern school districts and an intent
"segregative intent." The intractable
test to those in other sections, at least
problems involved in litigating this issue
until an initial de jure finding for those
are obvious to any lawyer. The results
districts can be made. Rather than
of litigation-often arrived at subjec-
straining to perpetuate any such dual
tively by a court endeavoring to ascer-
standard, we should hold forthrightly
tain the subjective intent of school au-
that significant segregated school condi-
thorities with respect to action taken or
tions in any section of the country
not taken over many years-will be for-
are a prima facie violation of constitu-
tuitous, unpredictable and even capri-
tional rights. As the Court has noted
cious.
elsewhere:
The Denver situation is illustrative of
"Circumstances or chance may well
the problem. The court below found evi-
dictate that no persons in a certain
dence of de jure violations with respect
class will serve on a particular jury or
to the Park Hill schools and an absence
during some particular period. But it
of such violations with respect to the
taxes our credulity to say that mere
core city schools, despite the fact that
chance resulted in there being no mem-
actions taken by the shcool board with re-
bers of this class among the over six
gard to those two sections were not dis-
2710
93 SUPREME COURT REPORTER
413 U.S. 233
similar. It is, for example, quite possi-
of a school board and school administra-
ble to contend that both the construction
tion, and indeed every failure to act
of Manual High School in the core city
where affirmative action is indicated,
area and Barrett Elementary School in
must now be subject to scrutiny. The
the Park Hill area operated to serve their
most routine decisions with respect to
surrounding Negro communities and, in
the operation of schools, made almost
effect, to merge school attendance zones
daily, can affect in varying degrees the
with segregated residential patterns.
extent to which schools are initially seg-
See Brief for Petitioners 80-83. Yet
regated, remain in that condition, are
findings even on such similar acts will,
desegregated, or-for the long term fu-
under the de jure/de facto distinction,
ture-are likely to be one or the other.
continue to differ, especially since the
These decisions include action or nonac-
Court has never made clear what suf-
tion with respect to school building con-
fices to establish the requisite "segrega-
struction and location; the timing of
tive intent" for an initial constitutional
building new schools and their size; the
violation. Even if it were possible to
closing and consolidation of schools; the
clarify this question, wide and unpre-
drawing or gerrymandering of student 235
dictable differences of opinion among
attendance zones; the extent to which a
judges would be inevitable when dealing
neighborhood policy is enforced; the re-
with an issue as slippery as "intent" or
cruitment, promotion and assignment of
"purpose," especially when related to
faculty and supervisory personnel; poli-
hundreds of decisions made by school
cies with respect to transfers from one
authorities under varying conditions
school to another; whether, and to what
over many years.
extent, special schools will be provided,
This Court has recognized repeatedly
where they will be located, and who will
that it is "extremely difficult for a
qualify to attend them; the determina-
court to ascertain the motivation, or
tion of curriculum, including whether
collection of different motivations, that
there will be "tracks" that lead primari-
|234 lie behind a legislative enactment," Pal-
ly to college or to vocational training,
mer V. Thompson, 403 U.S. 217, 224, 91
and the routing of students into these
S.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971) ;
tracks; and even decisions as to social,
McGinnis V. Royster, 410 U.S. 263, 276-
recreational, and athletic policies.
277, 93 S.Ct. 1055, 1063, 35 L.Ed.2d 282
In Swann the Court did not have to
(1973); United States V. O'Brien, 391
probe into segregative intent and proxi-
U.S. 367, 381, 88 S.Ct. 1673, 1681, 20 L.
mate cause with respect to each of these
Ed.2d 672 (1968). Whatever difficul-
"endless" factors. The basis for its de
ties exist with regard to a single statute
jure finding there was rooted primarily
will be compounded in a judicial review
in the prior history of the desegregation
of years of administration of a large
suit. 402 U.S., at 5-6, 91 S.Ct., at 1271.
and complex school system. 16 Every act
But in a case of the present type, where
16. As one commentator has expressed it:
stituents, many of whom they knew to be
"If the courts are indeed prepared to
so? If such cases are classified as un-
inquire into motive, thorny questions will
constitutional de jure segregation, there
arise even if one assumes that racial
is little point in preserving the de jure-de
motivation is capable of being proven at
facto distinction at all. And it may well
trial. What of the case in which one or
be that the difference between any of
more members of a school board, but less
these situations and one in which racial
than a majority, are found to have acted
motivation is altogether lacking is too in-
on racial grounds? What if it appears
significant, from the standpoint of both
that the school board's action was
the moral culpability of the state officials
prompted by a mixture of motives, in-
and the impact upon the children in-
cluding constitutionally innocent ones
volved, to support a difference in con-
that alone would have prompted the board
stitutional treatment." Goodman, De
to act? What if the members of the
Facto School Segregation: A Constitu-
school board were not themselves racially
tional and Empirical Analysis, 60 Calif.L.
inspired but wished to please their con-
Rev. 275, 284-285 (1972).
413 U.S. 237 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2711
Cite as 93 S.Ct. 26S6 (1973)
no such history exists, a judicial exami- tion. It is this policy which must be
nation of these factors will be required
applied consistently on a national basis
under today's decision. This will lead
without regard to a doctrinal distinction
inevitably to uneven and unpredictable
which has outlived its time.
results, to protracted and inconclusive
litigation, to added burdens on the fed-
III
eral courts, and to serious disruption of
individual school systems. In the ab-
The preceding section addresses the
sence of national and objective stand-
constitutional obligation of public au-
ards, school boards and administrators
thorities in the school districts through-
will remain in a state of uncertainty and
out our country to operate integrated
disarray, speculating as to what is re-
school systems. When the schools of a
quired and when litigation will strike.
particular district are found to be sub-
stantially segregated, there is a prima
C
facie case that this obligation has not
been met. The burden then shifts to the
Rather than continue to prop up a dis-
school authorities to demonstrate that
tinction no longer grounded in principle,
they have in fact operated an integrated
and contributing to the consequences in-
system as this term is defined supra, at
dicated above, we should acknowledge
2706-2707. If there is a failure success-
that whenever public school segregation
fully to rebut the prima facie case, the
question then becomes what reasonable
exists to a substantial degree there is
affirmative desegregative steps district
prima facie evidence of a constitutional
courts may require to place the school
237
violation by the responsible school board.
system in compliance with the constitu-
It is true, of course, that segregated
tional standard. In short, what specifi-
schools-wherever located--are not sole-
cally is the nature and scope of the
236 ly the product of the action orginaction
remedy?
of public school authorities. Indeed, as
indicated earlier, there can be little
As the Court's opinion virtually com-
doubt that principal causes of the perva-
pels the finding on remand that Denver
sive school segregation found in the ma-
has a "dual school system," that city will
jor urban areas of this country, wheth-
then be under an "affirmative duty" to
er in the North, West, or South, are the
desegregate its entire system "root and
socio-economic influences which have
branch." Green V. County School Board,
concentrated our minority citizens in the
391 U.S., at 437-438, 88 S.Ct., at 1694.
inner cities while the more mobile white
Again, the critical question is, what
majority disperse to the suburbs. But
ought this constitutional duty to entail?
it is also true that public school boards
have continuing, detailed responsibility
A
for the public school system within their
district and, as Judge John Minor Wis-
The controlling case is Swann, supra,
dom has noted, "[w]hen the figures
and the question which will confront and
[showing segregation in the schools]
confound the District Court and Denver
speak so eloquently, a prima facie case
School Board is what, indeed, does
of discrimination is established." Unit-
Swann require? Swann purported to
ed States V. Texas Education Agency,
enunciate no new principles, relying
heavily on Brown I and II and on Green.
467 F.2d 848, 873 (CA5 1972) (en banc).
Yet it affirmed a district court order
Moreover, as foreshadowed in Swann
which had relied heavily on "racial ra-
and as implicitly held today, school
tios" and sanctioned transportation of
boards have a duty to minimize and ame-
elementary as well as secondary pupils.
liorate segregated conditions by pursu-
Lower federal courts have often read
ing an affirmative policy of desegrega-
Swann as requiring far-reaching trans-
2712
93 SUPREME COURT REPORTER
413 U.S. 237
portation decrees 17 "to achieve the
more readily to this task than those in
238 greatest possible degree of actualideseg-
metropolitan districts "with dense and
regation." 402 U.S., at 26, 91 S.Ct., at
shifting population, numerous schools,
1281. In the context of a large urban
congested and complex traffic patterns."
area, with heavy residential concentra-
Id., at 14, 91 S.Ct., at 1275. Although
tions of white and black citizens in dif-
the use of pupil transportation was ap-
ferent-and widely separated-sections
proved as a remedial device, transporta-
of the school district, extensive disper-
tion orders are suspect "when the time
sal and transportation of pupils is inev-
or distance of travel is SO greatias to ei-
1239
itable if Swann is read as expansively as
ther risk the health of the children or
many courts have been reading it to
significantly impinge on the educational
date.
process." Id., at 30-31, 91 S.Ct., at 1283.
To the extent that Swann may be
Finally, the age of the pupils to be
thought to require large-scale or long-
transported was recognized by the Court
distance transportation of students in
in Swann as one important limitation on
our metropolitan school districts, I
the time of student travel. Id., at 31,
record my profound misgivings. Noth-
91 S.Ct., at 1283.
ing in our Constitution commands or en-
These factors were supposed to help
courages any such court-compelled dis-
guide district courts in framing equita-
ruption of public education. It may be
ble remedies in school desegregation
more accurate to view Swann as having
cases. 18 And the Court further empha-
laid down a broad rule of reason under
sized that equitable decrees are inherent-
which desegregation remedies must re-
ly sensitive, not solely to the degree of
main flexible and other values and inter-
desegregation to be achieved, but to a
ests be considered. Thus the Court rec-
variety of other public and private inter-
ognized that school authorities, not the
ests:
federal judiciary, must be charged in
"[A] school desegregation case does
the first instance with the task of deseg-
not differ fundamentally from other
regating local school systems. Id., at
cases involving the framing of equi-
16, 91 S.Ct., at 1276. It noted that
table remedies to repair the denial of
school boards in rural areas can adjust
a constitutional right. The task is
17. See, e. g., Thompson V. School Board of
61,530 children respectively, for undeter-
Newport News, 465 F.2d 83, 87 (1972),
mined lengths of time. Id., at 895-986.
where the Fourth Circuit en banc upheld
Petitioners before this Court in Potts V.
a district court assignment plan where
Flax, cert. denied, 409 U.S. 1007, 93 S.Ct.
"travel time, varying from a minimum of
433, 34 L.Ed.2d 299 (1972), contended
forty minutes and a maximum of one
that the implementation of the Fifth Cir-
hour, each way, would be required for
cuit's directive in Flax V. Potts, 464 F.2d
busing black students out of the old City
865 (1972), would require bus rides of up
and white students into the old City in
to two hours and 20 minutes each day
order to achieve a racial balancing of the
and a round trip of up to 70 miles. Pet.
district." This transportation was decreed
for Cert. 14. While respondents contend-
for children from the third grade up, in-
ed these figures represent an "astounding
volving children as young as eight years
inflation," Brief in Opposition 7, trans-
of age.
portation of a significant magnitude
In Northeross V. Board of Education of
seems inevitable.
Memphis City Schools, 466 F.2d 890, 895
(1972), the Sixth Circuit affirmed a dis-
18. See United States V. Texas Education
trict court assignment plan which daily
Agency, 467 F.2d 848, 883 (CA5 1972)
transported 14,000 children with "the
(Bell, J., concurring in an opinion in
maximum time to be spent on the buses
which seven other judges joined)
by any child [being] 34 minutes
"In our view the remedy which the dis-
presumably each way. But as Judge
trict court is required to formulate should
Weick noted in dissent the Sixth Circuit
be formulated within the entire context
instructed the district judge to implement
of the opinion in Swann V. Charlotte-
yet further desegregation orders. Plans
Mecklenburg Board of Education
presently under consideration by that
(Emphasis added.)
court call for the busing of 39,085 and
413 U.S. 241
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2713
Cite as 93 S.Ct. 2686 (1973)
to correct, by a balancing of the indi-
en effectively without damaging state
vidual and collective interests, the con-
and parental interests in having children
dition that offends the Constitution.
attend schools within a resonable vicini-
Id., at 15-16, 91 S.Ct., at 1276.
ty of home. Where desegregative steps
Those words echoed a similar expres-
are possible within the framework of a
sion in Brown II, 349 U.S., at 300, 75 S.
system of "neighborhood education,"
Ct., at 756:
school authorities must pursue them.
For example, boundaries of neighbor-
"In fashioning and effectuating the
hood attendance zones should be drawn
decrees, the courts will be guided by
to integrate to the extent practicable,
equitable principles. Traditionally,
the school's student body. Construction
equity has been characterized by a
of new schools should be of such a size
practical flexibility in shaping its
241
and at such a location as to encourage
remedies and by a facility for adjust-
the likelihood of integration, Swann, su-
ing and reconciling public and private
pra, 402 U.S., at 21, 91 S.Ct., at 1278.
needs."
Faculty integration should be attained
Thus, in school desegration cases, as
throughout the school system, id., at 19,
elsewhere, equity counsels reason, flexi-
91 S.Ct. at 1277; United States V. Mont-
240 bility, and balance. See e. g. Lemon[v.
gomery County Board of Education, 395
Kurtzman, 411 U.S. 192, 93 S.Ct. 1463,
U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263
36 L.Ed.2d 151 (1973). I am aware, of
(1969). An optional majority-to-minori-
course, that reasonableness in any area
ty transfer program, with the State pro-
is a relative and subjective concept.
viding free transportation to desiring
But with school desegregation, reason-
students, is also a helpful adjunct to a
ableness would seem to embody a bal-
desegregated school system. Swann, su-
anced evaluation of the obligation of
pra, 402 U.S., at 26-27, 91 S.Ct., at 1281-
public school boards to promote desegre-
1282. It hardly need be repeated that
gation with other, equally important ed-
allocation of resources within the school
ucational interests which a community
district must be made with scrupulous
may legitimately assert. Neglect of ei-
fairness among all schools.
ther the obligation or the interests de-
stroys the even-handed spirit with which
The above examples are meant to be
equitable remedies must be approach-
illustrative, not exhaustive. The point
ed.¹⁹ Overzealousness in pursuit of any
is that the overall integrative impact of
such school board decisions must be as-
single goal is untrue to the tradition of
equity and to the "balance" and "flexi-
sessed by district courts in deciding
bility" which this Court has always re-
whether the duty to desegregate has
spected.
been met. For example, "neighborhood
school plans are constitutionally suspect
B
when attendance zones are superficially
Where school authorities have default-
imposed upon racially defined neighbor-
ed in their duty to operate an integrated
hoods, and when school construction pre-
school system, district courts must in-
serves rather than eliminates the racial
sure that affirmative desegregative
homogeny [sic] of given schools." 20
steps ensue. Many of these can be tak-
Keyes V. School District No. 1, Denver
19. The relevant inquiry is "whether the
education, or involves a genuiue element
costs of achieving desegregation in any
of danger to the safety of the child."
given situation outweigh the legal, moral,
Comment, School Desegregation After
and educational considerations favoring
Swann: A Theory of Government Re-
it.
It is clear
that
sponsibility, 39 U.Chi.L.Rec. 421, 422, 443
the Constitution should not be held to re-
(1972).
quire any transportation plan that keeps
children on a bus for a substantial part
20. A nseful study of the historical uses and
of the day, consumes significant portions
abuses of the neighborhood school concept
of funds otherwise spendable directly on
is M. Weinberg, Race & Place (1967).
S.Ct.-1701/2
2714
93 SUPREME COURT REPORTER
413 U.S. 241
Colorado, 445 F.2d 990, 1005 (CA10
important community aspirations and
1971). See United States V. Board of
personal rights. Such a requirement is
Education of Tulsa County, 429 F.2d
also likely to divert attention and re-
1253, 1258-1259 (CA10 1970). This
sources from the foremost goal of any
does not imply that decisions on faculty
school system: the best quality educa-
assignment, attendance zones, school con-
tion for all pupils. The Equal Protec-
struction, closing and consolidation, must
tion Clause does, indeed, command that
be made to the detriment of all neutral,
racial discrimination not be tolerated in
nonracial considerations. But these con-
the decisions of public school authori-
siderations can, with proper school board
ties. But it does not require that school
initiative, generally be met in a manner
authorities undertake widespread stu-
that will enhance the degree of school
dent transportation solely for the sake
desegregation.
of maximizing integration.
C
This obviously does not mean that bus
1243
transportation has no place in public
Defaulting school authorities would
school systems or is not a permissible
have, at a minimum, the obligation to
means in the desegregative process.
1242 take affirmative steps of the sort 1out-
The transporting of school children is as
lined in the above section. School
old as public education, and in rural and
boards would, of course, be free to devel-
some suburban settings it is as indispen-
op and initiate further plans to promote
sable as the providing of books. It is
school desegregation. In a pluralistic
presently estimated that approximately
society such as ours, it is essential that
half of all American children ride buses
no racial minority feel demeaned or dis-
to school for reasons unrelated to
criminated against and that students of
integration. At the secondary level in
all races learn to play, work, and cooper-
particular, where the schools are larger
ate with one another in their common
and serve a wider, more dispersed con-
pursuits and endeavors. Nothing in this
stituency than elementary schools, some
opinion is meant to discourage school
form of public or privately financ-
boards from exceeding minimal constitu-
ed transportation is often necessary.
tional standards in promoting the values
There is a significant difference, how-
of an integrated school experience.
ever, in transportation plans voluntarily
A constitutional requirement of exten-
initiated by local school boards for edu-
sive student transportation solely to
cational purposes and those imposed by
achieve integration presents a vastly
a federal court. The former usually
more complex problem. It promises, on
represent a necessary or convenient
the one hand, a greater degree of actual
means of access to the school nearest
desegregation, while it infringes on
home; the latter often require lengthy
what may fairly be regarded as other
trips for no purpose other than to fur-
21. In fact, due to racially separate resi-
ing of the environment involving economic
dential patterns that characterize our
and social policy on the broadest con-
major urban areas it is quite unrealistic
ceivable front might have an appreciable
to think of achieving in many cities sub-
impact." Bickel, supra, n. 7, at 132.
stantial integration throughout the school
district without a degree of student trans-
22. Estimates vary. Swann, 402 U.S., at
portation which would have the gravest
29, 91 S.Ct. at 1882, noted that "[e]ight-
economic and educational consequences.
een million of the Nation's public school
As Professor Bickel notes:
children, approximately 39%, were trans-
"In most of the larger urban areas,
ported to their schools by bus in 1969-
1970 in all parts of the country." Sen-
demographic conditions are such that no
ator Ribicoff, a thoughtful student of this
policy that a court can order, and a school
problem, stated that '[t]wo-thirds of all
board, a city, or even a state has the
American children today ride buses to
capability to put into effect, will in fact
schools for reasons unrelated to integra-
result in the foresecable future in racially
tion," 118 Cong.Rec. 5456 (1972).
balanced public schools. Only a reorder-
413 U.S. 245
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2715
Cite as 93 S.Ct. 2686 (1973)
1244
ther
integration.
Yet
the
Court
in
and disruptive transportation. The re-
Swann was unquestionably right in de-
fusal of the Court in Swann to require
scribing bus transportation as "one tool
racial balance in schools throughout the
of school desegregation." 402 U.S., at 30,
district or the arbitrary elimination of
91 S.Ct., at 1283.2 The crucial issue
all "one-race schools," id., at 26, 91
is when, under what circumstances, and
S.Ct., at 1281, is grounded in a recogni-
to what extent such transportation may
tion that[the State, parents, and children 1245
appropriately be ordered. The answer
all have at stake in school desegregation
to this turns-as it does SO often in the
decrees, legitimate and recognizable in-
law-upon a sound exercise of discretion
terests.
under the circumstances.
The personal interest might be charac-
Swann itself recognized limits to de-
terized as the desire that children attend
segregative obligations. It noted that a
community schools near home. Dr.
constitutional requirement of "any par-
James Coleman testified for petitioners
ticular degree of racial balance or mix-
at trial that "most school systems organ-
ing
would be disapproved
ize their schools in relation to the resi-
and sanctioned district court
dents by having fixed school districts
use of mathematical ratios as "no more
and some of these are very ethnically
than a starting point in the process of
homogeneous." App. 1549a. In Deal V.
shaping a remedy
Id.,
at
Cincinnati Board of Education, 369 F.2d,
24, 25, 91 S.Ct., at 1280, 1281. Thus,
at 60, the Sixth Circuit summarized the
particular schools may be all white or all
advantages of such a neighborhood sys-
black and still not infringe constitution-
tem of schools: 25
al rights if the system is genuinely inte-
grated and school authorities are pursu-
"Appellants, however, pose the ques-
ing integrative steps short of extensive
tion of whether the neighborhood sys-
23. Historically, distant transportation was
Board of Education of Memphis City
wrongly used to promote segregation.
Schools, 444 F.2d 1179, 1182-1183 (CA6
"Negro children were generally considered
1971); Davis v. Board of Education of
capable of traveling longer distances to
North Little Rock, 328 F.Supp. 1197,
school and without the aid of any vehicle.
1203 (ED Ark.1971). Where a school
What was too far for a white child
board is voluntarily engaged in transport-
became reasonably near for a Negro
ing students, a district court is, of course,
child," Weinberg, supra, n. 20, at 87.
obligated to insure that such transporta-
This deplorable history has led some to
tion is not undertaken with segregative
argue that integrative bus rides are justi-
effect. Where, also, voluntary transpor-
fied as atonement for past segregative
tation programs are already in progress,
trips and that neighborhood education is
there may be greater justification for
now but a code word for racial segrega-
court-ordered transportation of students
tion. But misuse of transportation in the
for a comparable time and distance to
past does not imply neighborhood school-
achieve greater integration.
ing has no valid nonsegregative uses for
the present. Nor would wrongful trans-
25. The term "neighborhood school" should
portation in the past justify detrimental
not be supposed to denote solely a walk-
transportation for the children of today.
in school or one which serves children
only in the surrounding blocks. The
24. Some communities had transportation
Court has noted, in a different context,
plans in effect at the time of court de-
that "[t]he word 'neighborhood' is quite
segregation orders. See Swann, supra, at
as susceptible of variation as the word
29 n. 11, 91 S.Ct. at 1282; Davis V.
'locality.' Both terms are elastic and,
Board of School Commissioners of Mobile
dependent upon circumstances, may be
County, 402 U.S. 33, 34-35, 91 S.Ct. 1289,
equally satisfied by areas measured by
1290-1291, 28 L.Ed.2d 577 (1971). Courts
rods or by miles." Connally V. General
have used the presence or absence of
Construction Co., 269 U.S. 385, 395, 46
existing transportation in a district as
S.Ct. 126, 129, 70 L.Ed. 322 (1926). In
one factor in framing and implementing
the school context, "neighborhood" refers
desegregation decrees. United States V.
to relative proximity, to a preference for
Watson Chapel School District, 440 F.2d
a school nearer to, rather than more dis-
933, 937 (CA8 1971) ; Northcross V.
tant from, home.
2716
93 SUPREME COURT REPORTER
413 U.S. 245
tem of pupil placement, fairly admin-
the name of constitutional law what may
istered without racial bias, comports
seem to many a dissolution in the tradi-
with the requirements of equal oppor-
tional, more personal fabric of their
tunity if it nevertheless results in the
public schools.
creation of schools with predominantly
Closely related to the concept of a
or even exclusively Negro pupils. The
community and neighborhood education,
neighborhood system is in wide use
are those rights and duties parents have
throughout the nation and has been
with respect to the education of their
for many years the basis of school ad-
children. The law has long recognized
ministration. This is so because it is
the parental duty to nurture, support,
acknowledged to have several valuable
and provide for the welfare of children,
aspects which are an aid to education,
including their education. In Pierce V. 247
such as minimization of safety haz-
Society of Sisters, 268 U.S. 510, 534-
ards to children in reaching school,
535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 a
economy of cost in reducing transpor-
unanimous Court held that:
246
tation needs, ease of pupil placement
and administration through the use of
"Under the doctrine of Meyer V. Ne-
neutral, easily determined standards,
braska, 262 U.S. 390 [43 S.Ct. 625, 67
and better home-school communica-
L.Ed. 1042], we think it entirely plain
tion."
that the Act of 1922 unreasonably in-
terferes with the liberty of parents
The neighborhood school does provide
and guardians to direct the upbring-
greater ease of parental and student ac-
ing and education of children under
cess and convenience, as well as greater
their control.
The child is
economy of public administration.
not the mere creature of the State;
These are obvious and distinct advan-
those who nurture him and direct his
tages, but the legitimacy of the neigh-
destiny have the right, coupled with
borhood concept rests on more basic
the high duty, to recognize and pre-
grounds.26
pare him for additional obligations."
Neighborhood school systems, neutral-
And in Griswold V. Connecticut, 381
ly administered, reflect the deeply felt
U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.
desire of citizens for a sense of commu-
Ed.2d 510 (1965), the Court noted that
nity in their public education. Public
in Pierce, "the right to educate one's
schools have been a traditional source of
children as one chooses is made applica-
strength to our Nation, and that
ble to the States by the force of the
strength may derive in part from the
First and Fourteenth Amendments." I
identification of many schools with the
do not believe recognition of this right
personal features of the surrounding
can be confined solely to a parent's
neighborhood. Community support, in-
choice to send a child to public or pri-
terest, and dedication to public schools
vate school. Most parents cannot afford
may well run higher with a neighbor-
the luxury of a private education for
hood attendance pattern: distance may
their children, and the dual obligation of
encourage disinterest. Many citizens
private tuitions and public taxes. Those
sense today a decline in the intimacy of
who may for numerous reasons seek
our institutions-home, church, and
public education for their children
school-which has caused a concomitant
should not be forced to forfeit all inter-
decline in the unity and communal spirit
est or voice in the school their child at-
of our people. I pass no judgment on
tends. It would, of course, be impracti-
this viewpoint, but I do believe that this
cal to allow the wishes of particular par-
Court should be wary of compelling in
ents to be controlling. Yet the interest
26. I do not imply that the neighborhood
chosen it, federal judges should accord it
concept must be embodied in every school
respect in framing remedial decrees.
system. But where a school board has
413 U.S. 249
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2717
Cite as 93 S.Ct. 2686 (1973)
of the parent in the enhanced parent-
composition. Some districts with little
school and parent-child communication
or no biracial population will experience
allowed by the neighborhood unit ought
little or no educational disruption, while
not to be suppressed by force of law.
others, notably in large, biracial metro-
In the commendable national concern
politan areas, must at considerable ex-
for alleviating public school segregation,
pense undertake extensive transportation
courts may have overlooked the fact that
to achieve the type of integration fre-
the rights and interests of children af-
quently being ordered by district
courts. At a time when public educa-
fected by a desegregation program also
are entitled to consideration. Any child,
tion generally is suffering serious finan-
white or black, who is compelled to leave
cial malnutrition, the economic burdens
his neighborhood and spend significant
of such transportation can be severe, re-
1248 time each day being transported to a
quiring both initial capital outlays and
distant school suffers an impairment of
annual operating costs in the millions of
dollars.29 And while constitutional re-
his liberty and his privacy. Not long
ago, James B. Conant wrote that "[a]t
quirements havejoften occasioned uneven
1249
the elementary school level the issue
burdens, never have they touched SO sen-
sitive a matter as wide differences in
seems clear. To send young children
day after day to distant schools by bus
the compulsory transportation require-
seems out of the question."²⁷ A commu-
ments for literally hundreds of thou-
sands of school children.
nity may well conclude that the portion
of a child's day spent on a bus might be
The argument for student transporta-
used more creatively in a classroom,
tion also overlooks the fact that the rem-
playground, or in some other extracur-
edy exceeds that which may be necessary
ricular school activity. Decisions such
to redress the constitutional evil. Let
as these, affecting the quality of a child's
us use Denver as an example. The Den-
daily life, should not lightly be held con-
ver School Board, by its action and non-
stitutionally errant.
action, may be legally responsible for
Up to this point I have focused mainly
some of the segregation that exists.
on the personal interests of parents and
But if one assumes a maximum dis-
children which a community may believe
charge of constitutional duty by the
to be best protected by a neighborhood
Denver Board over the past decades, the
system of schools. But broader consid-
fundamental problem of residential seg-
erations lead me to question just as seri-
regation would persist. 30 It is, indeed, a
ously any remedial requirement of ex-
novel application of equitable power-
tensive student transportation solely to
not to mention a dubious extension of
further integration. Any such require-
constitutional doctrine-to require SO
ment is certain to fall disproportionately
much greater a degree of forced school
on the school districts of our country,
integration than would have resulted
depending on their degree of urbaniza-
from purely natural and neutral non-
tion, financial resources, and their racial
state causes.
27. Slums and Suburbs 29 (1961).
district court will require initial capital
investments of $3,924,000 and annual
28. See n. 21, supra.
operating costs of $1,783,490. The most
drastic transportation plan before the dis-
29. In Memphis, for example, which has no
trict court requires estimated annual
history of busing students, the minimum
operating costs of from $2,354,220,
transportation plan ordered by the courts
$2,431,710, or $3,463,100 depending on
will require, in the School Board's
the Board's transportation, arrangements.
estimate, an initial capital expenditure of
Northcross V. Board of Education of
$1,664,192 for buses plus an annual
Memphis City Schools, 466 F.2d at 898
operating cost of $629,192. The Board
(Weick, J., dissenting).
estimates that a more extensive trans-
portation program to be considered by the
30. See n. 9, supra.
2718
93 SUPREME COURT REPORTER
413 U.S. 249
The compulsory transportation of stu-
other public authorities, and students of
dents carries a further infirmity as a
public education for nearly two decades.
constitutional remedy. With most con-
The problem, especially since it has fo-
stitutional violations, the major burden
cused on the "busing issue," has pro-
of remedial action falls on offending
foundly disquieted the public wherever
state officials. Public officials who act
extensive transportation has been or-
to infringe personal rights of speech,
dered. I make no pretense of knowing
voting, or religious exercise, for exam-
the best answers. Yet, the issue in this
ple, are obliged to cease the offending
and like cases comes to this Court as one
act or practice and, where necessary, in-
of constitutional law. As to this issue, I
stitute corrective measures. It is they
have no doubt whatever. There is noth-
who bear the brunt of remedial action,
ing in the Constitution, its history, or-
though other citizens will to varying de-
until recently-in the jurisprudence of
1250 grees feel its effects. School authorities
this Court that mandates the employ-
responsible for segregation must, at the
ment of forced transportation of young
very minimum, discontinue segregative
and teenage children to achieve a single
acts. But when the obligation further
interest, as important as that interest
251
extends to the transportation of stu-
may be. We have strayed, quite far as I
dents, the full burden of the affirmative
view it, from the rationale of Brown I
remedial action is borne by children and
and II, as reiterated in Swann, that
parents who did not participate in any
courts in fashioning remedies must be
constitutional violation.
"guided by equitable principles" which
include the "adjusting and reconciling
Finally, courts in requiring SO far-
[of] public and private needs," Brown
reaching a remedy as student transpor-
II, 349 U.S., at 300, 75 S.Ct., at 756.
tation solely to maximize integration,
risk setting in motion unpredictable and
I urge a return to this rationale.
unmanageable social consequences. No
This would result, as emphasized above,
one can estimate the extent to which dis-
in no prohibition on court-ordered stu-
mantling neighborhood education will
dent transportation in furtherance of
hasten an exodus to private schools,
desegregation. But it would require
leaving public school systems the pre-
that the legitimate community inter-
serve of the disadvantaged of both races.
ests in neighborhood school systems
Or guess how much impetus such dis-
be accorded far greater respect. In the
mantlement gives the movement from
balancing of interests so appropriate to
inner city to suburb, and the further geo-
a fair and just equitable decree, trans-
graphical separation of the races. Nor
portation orders should be applied with
do we know to what degree this remedy
special caution to any proposal as disrup-
may cause deterioration of community
tive of family life and interests-and ul-
and parental support of public schools,
timately of education itself-as extensive
or divert attention from the paramount
transportation of elementary-age chil-
goal of quality in education to a peren-
dren solely for desegregation purposes.
nially divisive debate over who is to be
As a minimum, this Court should not re-
transported where.
quire school boards to engage in the un-
necessary transportation away from
The problem addressed in this opinion
their neighborhoods of elementary age
has perplexed courts, school officials,
children. 31 It is at this age level that
31. There may well be advantages in com-
2706-2707. But in the balancing of all
mencing the integrative experiences at an
relevant interests, the advantages of an
early age, as young children may be less
early integrative experience must, and in
likely than older children and adults to
all fairness should, be weighed against
develop an inhibiting racial consciousness.
other relevant advantages and disadvan-
These advantages should be considered as
tages and in light of the demographic
school boards make the various decisions
characteristics of the particular commun-
with the view to achieving and preserving
ity.
an integrated school system. Supra, at
413 U.S. 253
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2719
Cite as 93 S.Ct. 26S6 (1973)
neighborhood education performs its
have not contributed in some/measure to 253
most vital role. It is with respect to
the degree of segregation which still
children of tender years that the great-
prevails. Instead of recognizing the
est concern exists for their physical and
reality of similar multiple segregative
psychological health. It is also here,
causes in school districts throughout the
252 at the elementary school, that the rights
country, the Court persists in a distinc-
of parents and children are most sharp-
tion whose duality operates unfairly on
ly implicated.³²
local communities in one section of the
country and on minority children in the
IV
others.
The existing state of law has failed to
The second issue relates to the ambi-
shed light and provide guidance on the
guities of Swann and the judicial disre-
two issues addressed in this opinion:
gard of legitimate community and indi-
(i) whether a constitutional rule of uni-
vidual interests in framing equitable de-
form, national application should be
crees. In the absence of a more flexible
adopted with respect to our national
and reasonable standard than that im-
problem of school desegregation and (ii),
posed by district courts after Swann,
if so, whether the ambiguities of Swann
the desegregation which will now be de-
construed to date almost uniformly in
creed in Denver and other major cities
favor of extensive transportation, should
may well involve even more extensive
be redefined to restore a more viable
transportation than has been witnessed
balance among the various interests
up to this time.
which are involved. With all deference,
It is well to remember that the course
it seems to me that the Court today has
we are running is a long one and the
addressed neither of these issues in a
goal sought in the end-so often over-
way that will afford adequate guidance
looked-is the best possible educational
to the courts below in this case or lead
opportunity for all children. Communi-
to a rational, coherent national policy.
ties deserve the freedom and the incen-
The Court has chosen, rather, to ad-
tive to turn their attention and energies
here to the de facto/de jure distinction
to this goal of quality education, free
under circumstances, and upon a ration-
from protracted and debilitating battles
ale, which can only lead to increased and
over court-ordered student transporta-
inconclusive litigation, and-especially
tion. The single most disruptive ele-
regrettable-to deferment of a national-
ment in education today is the wide-
ly consistent judicial position on this
spread use of compulsory transportation,
subject. There is, of course, state ac-
especially at elementary grade levels.
tion in every school district in the land.
This has risked distracting and divert-
The public schools always have been
ing attention from basic educational
funded and operated by States and their
ends, dividing and embittering communi-
local subdivisions. It is true that segre-
ties, and exacerbating, rather than amel-
gated schools, even in the cities of the
iorating, interracial friction and misun-
South, are in large- part the product of
derstanding. It is time to return to a
social and economic factors-and the re-
more balanced evaluation of the recog-
sulting residential patterns. But there
nized interests of our society in achiev-
is also not a school district in the United
ing desegregation with other educational
States, with any significant minority
and societal interests a community may
school population, in which the school
legitimately assert. This will help as-
authorities-in one way or the other—
sure that integrated school systems will
32. While greater transportation of
respect. It would ultimately be wisest,
secondary school students might be per-
where there is no absence of good faith,
mitted, even at this level the desire of a
to permit affected communities to decide
community for racially neutral neighbor-
this delicate issue of student transporta-
hood schools should command judicial
tion on their own.
2720
93 SUPREME COURT REPORTER
413 U.S. 253
be established and maintained by ration-
prived of their constitutional right to
al action, will be better understood and
equal protection of the laws just as sure-
supported by parents and children of
ly as were the plaintiffs in Brown V.
both races, and will promote the endur-
Board of Education by the statutorily
ing qualities of an integrated society SO
required segregation in that case. But
essential to its genuine success.
the fact that invidious racial discrimina-
255
tion is prohibited by the Constitution in
[254 Mr. Justice REHNQUIST, dissenting.
the North as well as the South must not
be allowed to obscure the equally impor-
I
tant fact that the consequences of ma-
The Court notes at the outset of its
nipulative drawing of attendance zones
opinion the differences between the
in a school district the size of Denver
claims made by the plaintiffs in this
does not necessarily result in denial of
case and the classical "de jure" type of
equal protection to all minority students
claims made by plaintiffs in cases such
within that district. There are signifi-
as Brown V. Board of Education, 347 U.
cant differences between the proof
S. 483, 74 S.Ct. 686, 98 L.Ed. 873
which would support a claim such as that
(1954), and its progeny. I think the
alleged by plaintiffs in this case, and the
similarities and differences, not only in
total segregation required by statute
the claims, but in the nature of the con-
which existed in Brown.
stitutional violation, deserve somewhat
The Court's opinion obscures these
more attention than the Court gives
factual differences between the situation
them.
shown by the record to have existed in
In Brown, the Court held unconstitu-
Denver and the situations dealt with in
tional statutes then prevalent in South-
earlier school desegregation opinions of
ern and border States mandating that
the Court. The Court states, supra, at
Negro children and white children at-
2693, that "[w]e have never suggested
tend separate schools. Under such a
that plaintiffs in school desegregation
statute, of course, every child in the
cases must bear the burden of proving
school system is segregated by race, and
the elements of de jure segregation as to
there is no racial mixing whatever in
each and every school or each and every
the population of any particular school.
student within the school system. Rath-
er, we have held that where plaintiffs
It is conceded that the State of Colo-
prove that a current condition of segre-
rado and the city of Denver have never
gated schooling exists within a school
had a statute or ordinance of that de-
district where a dual system was com-
scription. The claim made by these
pelled or authorized by statute at the
plaintiffs, as described in the Court's
time of our decision in Brown V. Board
opinion, is that the School Board by "use
of Education, 347 U.S. 483, 74 S.Ct. 686,
of various techniques such as the manip-
98 L.Ed. 873 (1954) (Brown I), the
ulation of student attendance zones,
State automatically assumes an affirma-
schoolsite selection and a neighborhood
tive duty 'to effectuate a transition to
school policy" took race into account in
a racially nondiscriminatory school sys-
making school assignments in such a
tem,' Brown V. Board of Education, 349
way as to lessen that mixing of races
U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed.
which would have resulted from a racial-
1083 (1955) (Brown II)
"
ly neutral policy of school assignment. If
such claims are proved, those minority
That statement is, of course, correct in
students who as a result of such manip-
the Brown context, but in the Brown
ulative techniques are forced to attend
cases and later ones that have come be-
schools other than those that they would
fore the Court the situation which had
have attended had attendance zones been
invariably obtained at one time was a
neutrally drawn are undoubtedly de-
"dual" school system mandated by law,
413 U.S. 257
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2721
Cite as 93 S.Ct. 2686 (1973)
by a law which prohibited Negroes and
racial mixing in the schools was forbid-
whites from attending the same schools.
den by law.
Since under Brown such a law deprived
Underlying the Court's entire opinion
257
each Negro child of the equal protection
is its apparent thesis that a district
of the laws, there was no need to prove
judge is at least permitted to find that
1256 the elements of de jure segregation as
if a single attendance zone between two
to each and every school," since the law
individual schools in the large metropoli-
itself had required just that sort of
tan district is found by him to have
segregation.
been "gerrymandered," the school dis-
But in a school district the size of
trict is guilty of operating a "dual"
Denver's, it is quite conceivable that the
school system, and is apparently a candi-
School Board might have engaged in the
date for what is in practice, a federal re-
racial gerrymandering of the attendance
ceivership. Not only the language of
boundary between two particular schools
the Court in the opinion, but its reliance
in order to keep one largely Negro and
on the case of Green V. County School
Hispano, and the other largely Anglo, as
Board, 391 U.S. 430, 437-438, 88 S.Ct.
the District Court found to have been
1689, 1693-1694, 20 L.Ed.2d 716 (1968),
the fact in this case. Such action would
indicates that such would be the case.
have deprived affected minority students
It would therefore presumably be open
who were the victims of such gerryman-
to the District Court to require, inter
dering of their constitutional right to
alia, that pupils be transported great
equal protection of the laws. But if the
distances throughout the district to and
school board had been evenhanded in its
from schools whose attendance zones
drawing of the attendance lines for oth-
have not been gerrymandered. Yet, un-
er schools in the district, minority stu-
less the Equal Protection Clause of the
dents required to attend other schools
Fourteenth Amendment now be held to
within the district would have suffered
embody a principle of "taint," found in
no such deprivation. It certainly would
some primitive legal systems but dis-
not reflect normal English usage to de-
carded centuries ago in ours, such a re-
scribe the entire district as "segregated"
sult can only be described as the product
on such a state of facts, and it would be
of judicial fiat.
a quite unprecedented application of
Green, supra, represented a marked
principles of equitable relief to deter-
mine that if the gerrymandering of one
extension of the principles of Brown V.
Board of Education, supra. The Court
attendance zone were proved, particular
in Green said:
racial mixtures could be required by a
federal district court for every school in
"It is of course true that for the time
the district.
immediately after Brown II [349 U.S.
It is quite possible, of course, that a
294 [75 S.Ct. 753, 99 L.Ed. 1083]] the
school district purporting to adopt ra-
concern was with making an initial
cially neutral boundary zones might,
break in a long-established pattern of
with respect to every such zone, invidi-
excluding Negro children from schools
ously discriminate against minorities, SO
attended by white children.
as to produce substantially the same re-
Under Brown II that immediate goal
sult as was produced by the statutorily
was only the first step, however. The
decreed segregation involved in Brown.
transition to a unitary, nonracial sys-
If that were the case, the consequences
tem of public education was and is the
would necessarily have to be the same as
ultimate end to be brought about
"
were the consequences in Brown. But,
391 U.S., at 435-436, 88
in the absence of a statute requiring
S.Ct., at 1693.
segregation, there must necessarily be
"Brown II was a call for the dis-
the sort of factual inquiry which was
mantling of well-entrenched dual sys-
unnecessary in those jurisdictions where
tems tempered by an awareness that
93 S.Ct.-171
2722
93 SUPREME COURT REPORTER
413 U.S. 257
complex and multifaceted problems
core area schools was the result of dis-
[258
would arise which would require time
criminatory action on the part of the
and flexibility for a successful resolu-
school board. The District Court is said
tion. School boards such as the re-
to have "fractionated" the district, supra,
spondent then operating state-com-
at 2689, and to have "held that its find-
pelled dual systems were nevertheless
ing of intentional segregation in Park
clearly charged with the affirmative
Hill was not in any sense material to the
duty to take whatever steps might be
question of segregative intent in other
necessary to convert to a unitary sys-
areas of the city," ibid. It is difficult
tem in which racial discrimination
to know what the Court means by the
would be eliminated root and branch."
first of these references, and even more
Id., at 437-438, 88 S.Ct., at 1694.
difficult to justify the second in the
The drastic extension of Brown which
light of the District Court's opinion.
Green represented was barely, if at all,
If by "fractionating" the district, the
explicated in the latter opinion. To re-
Court means that the District Court
quire that a genuinely "dual" system be
treated together events that occurred
disestablished, in the sense that the as-
during the same time period, and that it
signment of a child to a particular
treated those events separately from
school is not made to depend on his race
events that occurred during another
is one thing. To require that school
time span this is undoubtedly correct.
boards affirmatively undertake to
This is the approach followed by most
achieve racial mixing in schools where
experienced and careful finders of fact.
such mixing is not achieved in sufficient
degree by neutrally drawn boundary
In commencing that part of its com-
lines is quite obviously something else.
prehensive opinion which dealt with the
The Court's own language in Green
"core area" schools, the District Court
makes it unmistakably clear that this
observed:
significant extension of Brown's prohi-
"The evidentiary as well as the legal
bition against discrimination, and the
approach to the remaining schools is
conversion of that prohibition into an
quite different from that which has
affirmative duty to integrate, was made
been outlined above. For one thing,
in the context of a school system which
the concentrations of minorities oc-
had for a number of years rigidly ex-
curred at an earlier date and, in some
cluded Negroes from attending the same
instances, prior to the Brown decision
schools as were attended by whites.
by the Supreme Court. Community
Whatever may be the soundness of that
attitudes were different, including the
decision in the context of a genuinely
attitudes of the School Board mem-
"dual" school system, where segregation
bers. Furthermore, the transitions
of the races had once been mandated by
were much more gradual and less per-
law, I can see no constitutional justifica-
ceptible than they were in the Park
tion for it in a situation such as that
Hill schools. 313 F.Supp. 61, 69.
which the record shows to have obtained
(Emphasis supplied.)
in Denver.
The District Court noted, in its opin-
ion of July 31, 1969, 303 F.Supp. 279,
II
the differentiation that the plaintiffs
The Court's opinion gives lip service
themselves had made between the so-
to the notion that the inquiry as to
called "Park Hill" schools and I the 1260
whether or not the Denver school dis-
"core area" schools. The plaintiffs had
trict was "segregated" is a factual one,
sought a preliminary injunction prohib-
1259 though it refersin various critical lan-
iting the school board from rescinding
guage to the District Court's refusal to
three resolutions which had been adopt-
find that minority concentrations in the
ed by a differently composed school
413 U.S. 262 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2723
Cite as 93 S.Ct. 2686 (1973)
board earlier in 1969 and which would
The allegedly discriminatory acts with
have redrawn school boundary lines in
respect to the "core area" schools-New
the Park Hill area to achieve greater in-
Manual High School, Cole Junior High
tegration. In its opinion granting that
School, Morey Junior High School, and
injunction, the District Court said:
Boulevard and Columbine Elementary
Schools-took place between the years
"Attention at this hearing has fo-
1952 and 1961. They took place, as indi-
cused primarily on the schools in
cated by the references to the District
northeast Denver, and particularly on
Court's opinion noted above, not in a
the area which is commonly called
context of a rapidly expanding Negro
Park Hill. The alleged segregated
population, but in a context of a rela-
schools, elementary and junior high
tively fixed area of the city that had for
schools in this area, have acquired
an indefinite period of time been pre-
their character as such during the past
dominantly Negro.
ten years. The primary reason for
this has been the migration of the
Thus, quite contrary to the intimation
Negro community eastward from a
of virtual arbitrariness contained in the
confined community surrounding what
Court's opinion, the District Court's sep-
is commonly called 'Five Points.' Be-
arate treatment of the claims respecting
fore 1950 the Negroes all lived in a
these two separate areas was absolutely
community bounded roughly by 20th
necessary if a careful factual determi-
Avenue on the south, 20th Street on
nation, rather than a jumbled hash of
the west, York Street on the east, and
unrelated events, was to emerge from
38th Avenue on the north. The schools
the fact-finding process. The "intent"
in this area were, and are now, largely
with which a public body performs an
Negro schools. However, we are not
official act is difficult enough to ascer-
presently concerned with the validity
tain under the most favorable circum-
of this condition. During this period
stances. See Palmer V. Thompson, 403
the Negro population was relatively
U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438
small, and this condition had developed
(1971) ; McGinnis V. Royster, 410 U.S.
over a long period of time. However,
263, 93 S.Ct. 1055, 35 L.Ed.2d 282
by 1960 and, indeed, at the present
(1973). Far greater difficulty is en-
time this population is sizeable. As
countered if we are to assess the in-
the population has expanded the move
tentions with which official acts of
has been to the east, first to Colorado
a school board are performed over a pe-
Boulevard, a natural dividing line, and
riod of years. Not only does the board
later beyond Colorado Boulevard, but
consist of a number of members, but the
within a narrow corridor-more or
membership customarily turns over as a
less fixed north-south boundaries.
result of frequent periodic elections.
The migration caused these areas to
Indeed, it was as a result of the 1969
become substantially Negro and segre-
election for membership on the Denver
gated." 303 F.Supp. 279, 282.
School Board that the Board's policy
which had previously favored the
Further reference to the District
correction of racial imbalance by Timple- |262
1261 Court's several opinions shows that the
mentation of resolutions was reversed by
allegedly discriminatory acts of the
the election of new members to the
School Board in the Park Hill area oc-
Board.
curred between 1960 and 1969, in the
context of a steadily expanding Negro
These difficulties obviously do not
school population in the Park Hill area
mean that the inquiry must be aban-
doned, but they do suggest that the care
and heightened sensitivity on the part of
with which the District Court conducted
the community to the problems raised by
it in this case is an absolutely essential
integration and segregation.
ingredient to its successful conclusion.
2724
93 SUPREME COURT REPORTER
413 U.S. 262
The Court's bald statement that the
finders of fact, concluding as a part of
District Court "held that its finding of
the fact-finding process that intent with
intentional segregation in Park Hill was
respect to one act may support a conclu-
not in any sense material to the question
sion of a like intent with respect to an-
of segregative intent in other areas of
other. This is but a restatement of the
the city" is flatly belied by the following
principle of which the District Court
statement in the District Court's opin-
showed it was aware. And, obviously,
ion:
opinions of courts of appeals upholding
"Although past discriminatory acts
such findings of the District Court do
may not be a substantial factor con-
not themselves support any broader
tributing to present segregation, they
proposition than do the opinions of the
may nevertheless be probative on the
District Court in question.
issue of the segregative purpose of
other discriminatory acts which are in
Chambers V. Hendersonville City
fact a substantial factor in causing a
Board of Education, 364 F.2d 189 (CA4
present segregated situation." 313 F.
1966), and North Carolina Teachers
Supp., at 74-75, n. 18.
Assn. V. Asheboro City Board of Ed-
ucation, 393 F.2d 736 (CA4 1968), in-
Thus, it is apparent that the District
volved a background of segregation by a
Court was fully aware that it might take
law in the State of North Carolina and
into consideration the intention with
"the failure of the public school system
which it found the School Board to have
to desegregate in compliance with the
performed one act in assessing its inten-
mandate of Brown until forced to do so
tion in performing another act. This is
by litigation." 364 F.2d, at 192. The
the most that the references in the
courts held that the decimation in the
Court's opinion to evidentiary treatises
ranks of the Negro teachers while white
such as Wigmore and McCormick sup-
teachers were unaffected, raised an in-
port. And it should be noted that the
ference of discrimination which cast
cases cited by the Court, and by the au-
upon the school board the burden of
thors of the treatises, almost invariably
justifying such decimation. In each
deal with the intention of a particular
case, the school board had offered vir-
individual or individuals, and not with
tually no evidence supporting any non-
the "intention" of a public body whose
discriminatory basis for the result reach-
membership is constantly changing.
ed. The cases are thus wholly different
The Court's opinion totally confuses
in their factual background from the
the concept of a permissible inference in
case now before the Court.
such a situation, of which the District
Court indicated it was well aware, with
Also worthy of note is the fact that 1264
263 what the Court calls a "presumption,"
neither in Chambers nor in Asheboro
which apparently "shifts
did the Court of Appeals remand for a
the
burden of proving" to the defendant
further hearing, but in effect ordered
school authority. No case from this
judgments for the appellants on the is-
Court has ever gone further in this area
sues considered. This amounted to a de-
than to suggest that a finding of intent
termination that the factual finding of
in one factual situation may support a
the District Court on that issue was
finding of fact in another related factual
"clearly erroneous," and the statement
situation involving the same factor, a
as to presumption was a statement as to
principle with which, as indicated above,
the appellate court's method of evaluat-
the District Court was thoroughly fa-
ing the factual finding. This Court is
miliar.
in quite a different position in reviewing
this case, with the factual finding of the
The District Court cases cited by the
District Court having been affirmed by
Court represent almost entirely the opin-
the Court of Appeals for the Tenth Cir-
ions of judges who were themselves
cuit than was the Court of Appeals for
413 U.S. 265 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2725
Cite as 93 S.Ct. 2686 (1973)
the Fourth Circuit in reviewing the fac-
ly sympathetic to the plaintiffs' claims
tual findings of the District Courts that
gave them the full evidentiary hearing
were before it in Chambers and in Ashe-
to which they were entitled and careful-
265
boro. Indeed, it would be contrary to
ly considered all of the evidence before
settled principles for this Court to upset
him. He showed full awareness of the
a factual finding sustained by the Court
evidentiary principle that he might infer
of Appeals. "A seasoned and wise rule
from the "segregative intent" with
of this Court makes concurrent findings
which he found the Board to have acted
of two courts below final here in the ab-
in the Park Hill area a like intent with
sence of very exceptional showing of er-
respect to the core area, but he deliber-
ror." Comstock V. Group of Institutional
ately declined to do SO. This was his
Investors, 335 U.S. 211, 214, 68 S.Ct.
prerogative as the finder of fact, and
1454, 1456, 92 L.Ed. 1911 (1948).
his conclusion upon its affirmance by
The Court, doubtless realizing the dif-
the Court of Appeals is binding upon us.
ficulty of justifying an outright rever-
III
sal, instead remands for further factual
determination under newly enunciated
The Court has taken a long leap in
standards governing the evidentiary
this area of constitutional law in equat-
treatment of the finding as to Park Hill
ing the district-wide consequences of
by the District Court. These standards
gerrymandering individual attendance
call in some parts of the opinion for es-
zones in a district where separation of
tablishing a presumption, in other parts
the races was never required by law with
for shifting the burden of proof, and in
statutes or ordinances in other jurisdic-
other parts for recognizing a prima facie
tions which did so require. It then adds
case. Quite apart from my disagree-
to this potpourri a confusing enunciation
ment with the majority on its con-
of evidentiary rules in order to make it
stitutional law, I cannot believe it is a
more likely that the trial court will on re-
service to any of the parties to this liti-
mand reach the result which the Court
gation to require further factual deter-
apparently wants it to reach. Since I
mination under such a vague and impre-
believe neither of these steps is justified
cise mandate. But, more fundamentally,
by prior decisions of this Court, I dis-
I believe that a District Judge thorough-
sent.
2726
93 SUPREME COURT REPORTER
APPENDIX
CENTRE
ADAMS
COUNTY
******
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STS 17
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REMINGTON
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100
GARDEN PLACE
SITE 4
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SITE
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SITE 30
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ORTH NON
SITE
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MASHLAND
GILPIN
SITE 2
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CROFTON
SITE 47
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EVARD
SITE
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SITE 61
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SITE 84)
OPPORTUNITY
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If
WYMAN
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$
ADMINISTRATION
BUILDING
SITE 21J
SITE
MAILSON
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SITE
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the
SERVICE MLDING
1278 K SITE 24
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SITE 57
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MOORE
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ELMWOOD
The
SITE 9
DIE
DIVICE BURLDING
SITE 112
BAKER JUNIOR HIGH
7
FAIRMONT
SITE 63
15478
x
-
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2727
Cite as 93 S.Ct. 26S6 (1973)
ASAMS COUNTY
SWANSEA
mill
000
HARRINGTON
SITE 67
22
0000000
SMITH
SITE 114
1000
1000 0000
STEDMAN
HALLETT
BARRETT
SITE 64
SITE 92
SITE 103
COLUMBINE
PARK
SITE
PARK
hdl
0000
GOVE JUN
00000
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STEVENS
TELLER
ELEMENTARY SCHOOL
SITE 31
SITE
ATTENDANCE AREAS
w+ W E
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IIIII
SCHOOL BOUNDARIES
0000000000
BUILDING AND SITE LOCATIONS
UNDER 10 PERCENT ANGLO
FORD LIBRARY
BROMWELL
10 TO 20 PERCENT ANGLO
SITE
-
PREDOMINANTLY HISPANO
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"ocrText": "The original documents are located in Box 4, folder \"Busing Background Book (4)\" of the\nWhite House Special Files Unit Files at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Gerald Ford donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\n450\nOCTOBER TERM, 1967.\nMONRO\nSyllabus.\n391 U.S.\n450\nMONROE ET AL. v. BOARD OF COMMISSIONERS\nOF THE CITY OF JACKSON ET AL.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR\nTHE SIXTH CIRCUIT.\nNo. 740. Argued April 3, 1968.-Decided May 27, 1968.\nAbout one-third of the City of Jackson's population of 40,000 are\nNegroes, the great majority of whom live in the city's central\narea. The city school system has eight elementary, three junior\nhigh, and two senior high schools for the 7,650 students, of whom\nabout 40% are Negroes. Tennessee law in 1954 required racial\nsegregation in schools; five elementary and two junior high\nschools and one senior high school were operated as \"white\"\nschools, and the remainder as \"Negro\" schools. After Brown V.\nBoard of Education, 347 U. S. 483 (1954), declared such dual\nsystems unconstitutional, Tennessee enacted a pupil placement\nlaw, which gave local school boards exclusive authority to approve\nassignments. No white students enrolled in any \"Negro\" school\nand only seven applications were granted in two years permitting\nNegro pupils to enroll in \"white\" schools. In March 1962 the\nCourt of Appeals held that law inadequate \"as a plan to convert\na biracial system into a nonracial one.\" This action was brought\nin January 1963, seeking a declaratory judgment that respondents\nwere operating a racially segregated system, injunctive relief\nagainst maintenance of that system, an order directing admission\nto named \"white\" schools of Negro plaintiffs, and an order requir-\ning the School Board to formulate and file a desegregation plan.\nThe District Court ordered the students enrolled and the filing\nof a plan. A plan was filed, and with court-directed modifications,\nwas approved in August 1963, to be effective at once in the ele-\nmentary schools and to be extended over a four-year period to\njunior and senior high schools. The modified plan provides for\nautomatic assignment of pupils within attendance zones drawn\nalong geographic or \"natural\" boundaries, and \"according to the\ncapacity and facilities\" of the schools. However, the plan also\nhas a \"free-transfer\" provision by which a student may freely\ntransfer to a school of his choice if space is available, zone residents\nhaving priority in case of overcrowding. No bus service is pro-\nvided. After one year the Negro elementary schools remained\nfor\nMONROE v. BOARD OF COMMISSIONERS 451\n450\nSyllabus.\nall Negro, and 118 Negro pupils were scattered among four\nformerly all-white schools. Petitioners moved for further relief\nand the District Court held the plan had been administered\ndiscriminatorily. In the same proceeding the Board filed its\nproposed zones for the three junior high schools, to which peti-\ntioners objected on the grounds that the zones were racially\ngerrymandered and that the plan was inadequate to reorganize\nthe system on a nonracial basis. Petitioners urged that the\nBoard be required to use a \"feeder system,\" whereby each junior\nhigh would draw its students from specific elementary schools.\nThe District Court held that petitioners had not sustained the\nallegations that the zones were gerrymandered and concluded that\n\"there is no constitutional requirement\" that the \"feeder system\"\nbe adopted. The Court of Appeals affirmed, except on the issue\nof faculty segregation. Three years later the Negro junior high,\nwhich had over 80% of the Negro junior high students, had no\nwhite students, one \"white\" junior high had seven Negroes out\nof 819 students, and the other had 349 white and 135 Negro\npupils. Held:\n1. The \"free-transfer\" plan clearly does not meet respondent\nBoard's \"affirmative duty to take whatever steps might be neces-\nsary to convert to a unitary system in which racial discrimination\nwould be eliminated root and branch,\" Green V. County School\nBoard, ante, at 437-438, \"[r]ather than further the dismantling of\nthe dual system, the [\"free-transfer\"] plan has operated simply to\nburden children and their parents with a responsibility\nplaced\nsquarely on the School Board.\" Id., at 441-442. P. 458.\n2. Since it has not been shown that the \"free-transfer\" plan\nwill further rather than delay conversion to a unitary, nonracial\nsystem, it is unacceptable, and the Board must formulate a new\nplan which promises realistically to convert promptly to a unitary,\nnondiscriminatory school system. Pp. 459-460.\n380 F. 2d 955, vacated in part and remanded.\nJames M. Nabrit III and Jack Greenberg argued the\ncause for petitioners. With them on the brief were\nMichael Meltsner, Avon N. Williams, Jr., and Z. Alex-\nander Looby.\nRussell Rice, Sr., argued the cause and filed a brief\nfor respondents.\n298-002 o 69 32\n452\nOCTOBER TERM, 1967.\nOpinion of the Court.\n391 U.S.\nLouis F. Claiborne argued the cause for the United\nStates, as amicus curiae. With him on the brief were\nSolicitor General Griswold, Assistant Attorney General\nPollak, Lawrence G. Wallace, and Brian K. Landsberg.\nMR. JUSTICE BRENNAN delivered the opinion of the\nCourt.\nThis case was argued with No. 695, Green V. County\nSchool Board of New Kent County, ante, p. 430, and\nNo. 805, Raney V. Board of Education of the Gould\nSchool District, ante, p. 443. The question for decision\nis similar to the question decided in those cases. Here,\nhowever, the principal feature of a desegregation plan-\nwhich calls in question its adequacy to effectuate a\ntransition to a racially nondiscriminatory system in com-\npliance with Brown V. Board of Education, 349 U.S. 294\n(Brown II)-is not \"freedom of choice\" but a variant\ncommonly referred to as \"free transfer.\"\nThe respondent Board of Commissioners is the School\nBoard for the City of Jackson, located in midwestern\nTennessee. The school district coincides with the city\nlimits. Some one-third of the city's population of 40,000\nare Negroes, the great majority of whom live in the city's\ncentral area. The school system has eight elementary\nschools, three junior high schools, and two senior high\nschools. There are 7,650 children enrolled in the system's\nschools, about 40% of whom, over 3,200, are Negroes.\nIn 1954 Tennessee by law required racial segrega-\ntion in its public schools. Accordingly, five elementary\nschools, two junior high schools, and one senior high\nschool were operated as \"white\" schools, and three ele-\nmentary schools, one junior high school, and one senior\nhigh school were operated as \"Negro\" schools. Racial\nsegregation extended to all aspects of school life including\nfaculties and staffs.\nMONROE v. BOARD OF COMMISSIONERS. 453\n450\nOpinion of the Court.\nAfter Brown V. Board of Education, 347 U. S. 483\n(Brown I), declared such state-imposed dual systems\nunconstitutional, Tennessee enacted a pupil placement\nlaw, Tenn. Code § 49-1741 et seq. (1966). That law\ncontinued previously enrolled pupils in their assigned\nschools and vested local school boards with the exclusive\nauthority to approve assignment and transfer requests.\nNo white children enrolled in any \"Negro\" school under\nthe statute and the respondent Board granted only seven\napplications of Negro children to enroll in \"white\"\nschools, three in 1961 and four in 1962. In March 1962\nthe Court of Appeals for the Sixth Circuit held that the\npupil placement law was inadequate \"as a plan to con-\nvert a biracial system into a nonracial one.\" Northcross\nV. Board of Education of City of Memphis, 302 F. 2d\n818, 821.\nIn January 1963 petitioners brought this action in the\nDistrict Court for the Western District of Tennessee.\nThe complaint sought a declaratory judgment that re-\nspondent was operating a compulsory racially segregated\nschool system, injunctive relief against the continued\nmaintenance of that system, an order directing the ad-\nmission to named \"white\" schools of the plaintiff Negro\nschool children, and an order requiring respondent Board\nto formulate a desegregation plan. The District Court\nordered the Board to enroll the children in the schools\nin question and directed the Board to formulate and file\na desegregation plan. A plan was duly filed and, after\nmodifications directed by the court were incorporated,\nthe plan was approved in August 1963 to be effective\nimmediately in the elementary schools and to be grad-\nually extended over a four-year period to the junior high\nschools and senior high schools. 221 F. Supp. 968.\nThe modified plan provides for the automatic assign-\nment of pupils living within attendance zones drawn by\nthe Board or school officials along geographic or \"natural\"\n454\nOCTOBER TERM, 1967.\nOpinion of the Court.\n391 U.S.\nboundaries and \"according to the capacity and facilities\nof the [school] buildings\nwithin the zones. Id.,\nat 974. However, the plan also has the \"free-transfer\"\nprovision which was ultimately to bring this case to this\nCourt: Any child, after he has complied with the require-\nment that he register annually in his assigned school in\nhis attendance zone, may freely transfer to another school\nof his choice if space is available, zone residents having\npriority in cases of overcrowding. Students must pro-\nvide their own transportation; the school system does not\noperate school buses.\nBy its terms the \"free-transfer\" plan was first applied\nin the elementary schools. After one year of operation\npetitioners, joined by 27 other Negro school children,\nmoved in September 1964 for further relief in the District\nCourt, alleging respondent had administered the plan in\na racially discriminatory manner. At that time, the\nthree Negro elementary schools remained all Negro; and\n118 Negro pupils were scattered among four of the five\nformerly all-white elementary schools. After hearing\nevidence, the District Court found that in two respects\nthe Board had indeed administered the plan in a dis-\ncriminatory fashion. First, it had systematically denied\nNegro children-specifically the 27 intervenors-the right\nto transfer from their all-Negro zone schools to schools\nwhere white students were in the majority, although\nwhite students seeking transfers from Negro schools to\nwhite schools had been allowed to transfer. The court\nheld this to be a constitutional violation, see Goss V.\nBoard of Education, 373 U. S. 683, as well as a violation\nof the terms of the plan itself. 244 F. Supp. 353, 359.\nSecond, the court found that the Board, in drawing the\nlines of the geographic attendance zones, had gerry-\nmandered three elementary school zones to exclude Negro\nresidential areas from white school zones and to include\nMONROE v. BOARD OF COMMISSIONERS. 455\n450\nOpinion of the Court.\nthose areas in zones of Negro schools located farther\naway. Id., at 361-362.\nIn the same 1964 proceeding the Board filed with the\ncourt its proposed zones for the three junior high schools,\nJackson and Tigrett, the \"white\" junior high schools,\nand Merry, the \"Negro\" junior high school. As of the\n1964 school year the three schools retained their racial\nidentities, although Jackson did have one Negro child\namong its otherwise all-white student body. The facul-\nties and staffs of the respective schools were also segre-\ngated. Petitioners objected to the proposed zones on\ntwo grounds, arguing first that they were racially gerry-\nmandered because SO drawn as to assign Negro children\nto the \"Negro\" Merry school and white children to the\n\"white\" Jackson and Tigrett schools, and alternatively\nthat the plan was in any event inadequate to reorganize\nthe system on a nonracial basis. Petitioners, through\nexpert witnesses, urged that the Board be required to\nadopt a \"feeder system,\" a commonly used method of\nassigning students whereby each junior high school would\ndraw its students from specified elementary schools.\nThe groupings could be made SO as to assure racially inte-\ngrated student bodies in all three junior high schools,\nwith due regard for educational and administrative con-\nsiderations such as building capacity and proximity of\nstudents to the schools.\nThe District Court held that petitioners had not sus-\ntained their allegations that the proposed junior high\nschool attendance zones were gerrymandered, saying\n\"Tigrett [white] is located in the western section,\nMerry [Negro] is located in the central section and\nJackson [white] is located in the eastern section.\nThe zones proposed by the defendants would, gen-\nerally, allocate the western section to Tigrett, the\ncentral section to Merry, and the eastern section to\n456\nOCTOBER TERM, 1967.\nOpinion of the Court.\n391 U.S.\nJackson. The boundaries follow major streets or\nhighways and railroads. According to the school\npopulation maps, there are a considerable number of\nNegro pupils in the southern part of the Tigrett\nzone, a considerable number of white pupils in the\nmiddle and northern parts of the Merry zone, and\na considerable number of Negro pupils in the south-\nern part of the Jackson zone. The location of the\nthree schools in an approximate east-west line makes\nit inevitable that the three zones divide the city in\nthree parts from north to south. While it appears\nthat proximity of pupils and natural boundaries are\nnot as important in zoning for junior highs as in\nzoning for elementary schools, it does not appear\nthat Negro pupils will be discriminated against.\"\n244 F. Supp., at 362.\nAs for the recommended \"feeder system,\" the District\nCourt concluded simply that \"there is no constitutional\nrequirement that this particular system be adopted.\"\nIbid. The Court of Appeals for the Sixth Circuit\naffirmed except on an issue of faculty desegregation, as\nto which the case was remanded for further proceedings.\n380 F. 2d 955. We granted certiorari, 389 U. S. 1033,\nand set the case for oral argument immediately following\nGreen V. County School Board, supra. Although the case\npresented by the petition for certiorari concerns only the\njunior high schools, the plan in its application to ele-\nmentary and senior high schools is also necessarily im-\nplicated since the right of \"free transfer\" extends to\npupils at all levels.\nThe principles governing determination of the ade-\nquacy of the plan as compliance with the Board's re-\nsponsibility to effectuate a transition to a racially non-\ndiscriminatory system are those announced today in\nGreen V. County School Board, supra. Tested by those\nMONROE v. BOARD OF COMMISSIONERS. 457\n450\nOpinion of the Court.\nprinciples the plan is clearly inadequate. Three school\nyears have followed the District Court's approval of the\nattendance zones for the junior high schools. Yet Merry\nJunior High School was still completely a \"Negro\" school\nin the 1967-1968 school year, enrolling some 640 Negro\npupils, or over 80% of the system's Negro junior high\nschool students. Not one of the \"considerable number\nof white pupils in the middle and northern parts of the\nMerry zone\" assigned there under the attendance zone\naspect of the plan chose to stay at Merry. Every one\nexercised his option to transfer out of the \"Negro\" school.\nThe \"white\" Tigrett school seemingly had the same ex-\nperience in reverse. Of the \"considerable number of\nNegro pupils in the southern part of the Tigrett zone\"\nmentioned by the District Court, only seven are enrolled\nin the student body of 819; apparently all other Negro\nchildren assigned to Tigrett chose to go elsewhere. Only\nthe \"white\" Jackson school presents a different picture;\nthere, 349 white children and 135 Negro children com-\npose the student body. How many of the Negro chil-\ndren transferred in from the \"white\" Tigrett school does\nnot appear. The experience in the junior high schools\nmirrors that of the elementary schools. Thus the three\nelementary schools that were operated as Negro schools\nin 1954 and continued as such until 1963 are still at-\ntended only by Negroes. The five \"white\" schools all\nhave some Negro children enrolled, from as few as three\n(in a student body of 781) to as many as 160 (in a stu-\ndent body of 682).\nThis experience with \"free transfer\" was accurately\npredicted by the District Court as early as 1963:\n\"In terms of numbers\nthe ratio of Negro to\nwhite pupils is approximately 40-60. This figure\nis, however, somewhat misleading as a measure of\nthe extent to which integration will actually occur\n458\nOCTOBER TERM, 1967.\nOpinion of the Court.\n391 U.S.\nunder the proposed plan. Because the homes of\nNegro children are concentrated in certain areas of\nthe city, a plan of unitary zoning, even if prepared\nwithout consideration of race, will result in a con-\ncentration of Negro children in the zones of here-\ntofore 'Negro' schools and white children in the\nzones of heretofore 'white' schools. Moreover, this\ntendency of concentration in schools will be further\naccentuated by the exercise of choice of schools\n\"\n221 F. Supp., at 971. (Emphasis supplied.)\nPlainly, the plan does not meet respondent's \"affirma-\ntive duty to take whatever steps might be necessary to\nconvert to a unitary system in which racial discrimination\nwould be eliminated root and branch.\" Green V. County\nSchool Board, supra, at 437-438. Only by dismantling the\nstate-imposed dual system can that end be achieved.\nAnd manifestly, that end has not been achieved here\nnor does the plan approved by the lower courts for the\njunior high schools promise meaningful progress toward\ndoing so. \"Rather than further the dismantling of the\ndual system, the [\"free transfer\"] plan has operated\nsimply to burden children and their parents with a\nresponsibility which Brown II placed squarely on the\nSchool Board.\" Green V. County School Board, supra, at\n441-442. That the Board has chosen to adopt a method\nachieving minimal disruption of the old pattern is evident\nfrom its long delay in making any effort whatsoever to\ndesegregate, and the deliberately discriminatory manner\nin which the Board administered the plan until checked\nby the District Court.\nThe District Court approved the junior high school\nattendance-zone lines in the view that as drawn they\nassigned students to the three schools in a way that\nwas capable of producing meaningful desegregation of\nall three schools. But the \"free-transfer\" option has\nMONROE v. BOARD OF COMMISSIONERS. 459\n450\nOpinion of the Court.\npermitted the \"considerable number\" of white or Negro\nstudents in at least two of the zones to return, at the\nimplicit invitation of the Board, to the comfortable\nsecurity of the old, established discriminatory pattern.\nLike the transfer provisions held invalid in Goss v. Board\nof Education, 373 U.S. 683, 686, \"[i]t is readily apparent\nthat the transfer [provision] lends itself to perpetuation\nof segregation.\" While we there indicated that \"free-\ntransfer\" plans under some circumstances might be valid,\nwe explicitly stated that \"no official transfer plan or pro-\nvision of which racial segregation is the inevitable conse-\nquence may stand under the Fourteenth Amendment.\"\nId., at 689. So it is here; no attempt has been made\nto justify the transfer provision as a device designed\nto meet \"legitimate local problems,\" ibid.; rather it pat-\nently operates as a device to allow resegregation of the\nraces to the extent desegregation would be achieved by\ngeographically drawn zones. Respondent's argument in\nthis Court reveals its purpose. We are frankly told in\nthe Brief that without the transfer option it is appre-\nhended that white students will flee the school system\naltogether. \"But it should go without saying that the\nvitality of these constitutional principles cannot be al-\nlowed to yield simply because of disagreement with\nthem.\" Brown II, at 300.\nWe do not hold that \"free transfer\" can have no place\nin a desegregation plan. But like \"freedom of choice,\"\nif it cannot be shown that such a plan will further rather\nthan delay conversion to a unitary, nonracial, nondis-\ncriminatory school system, it must be held unacceptable.\nSee Green V. County School Board, supra, at 439-441.\nWe conclude, therefore, that the Board \"must be re-\nquired to formulate a new plan and, in light of other\ncourses which appear open to the Board,\nfashion\nsteps which promise realistically to convert promptly to a\n460\nOCTOBER TERM, 1967.\nOpinion of the Court.\n391 U.S.\nsystem without a 'white' school and a 'Negro' school, but\njust schools.\" Id., at 442.*\nThe judgment of the Court of Appeals is vacated inso-\nfar as it affirmed the District Court's approval of the\nplan in its application to the junior high schools, and\nthe case is remanded for further proceedings consistent\nwith this opinion and with our opinion in Green V. County\nSchool Board, supra.\nIt is so ordered.\n*We imply no agreement with the District Court's conclusion\nthat under the proposed attendance zones for junior high schools\n\"it does not appear that Negro pupils will be discriminated against.\"\nWe note also that on the record as it now stands, it appears that\npetitioners' recommended \"feeder system,\" the feasibility of which\nrespondent did not challenge in the District Court, is an effective\nalternative reasonably available to respondent to abolish the dual\nsystem in the junior high schools.\nALEXANDER v. BOARD OF EDUCATION 19\nSyllabus\nALEXANDER ET AL. v. HOLMES COUNTY BOARD\nOF EDUCATION ET AL.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR\nTHE FIFTH CIRCUIT\nNo. 632. Argued October 23, 1969-Decided October 29, 1969\nContinued operation of racially segregated schools under the standard\nof \"all deliberate speed\" is no longer constitutionally permissible.\nSchool districts must immediately terminate dual school systems\nbased on race and operate only unitary school systems. The Court\nof Appeals' order of August 28, 1969, delaying that court's earlier\nmandate for desegregation in certain Mississippi school districts\nis therefore vacated and that court is directed to enter an order,\neffective immediately, that the schools in those districts be\noperated on a unitary basis. While the schools are being thus\noperated, the District Court may consider any amendments of the\norder which may be proposed, but such amendments may become\neffective only with the Court of Appeals' approval.\nVacated and remanded.\nJack Greenberg argued the cause for petitioners. With\nhim on the brief were James M. Nabrit III, Norman C.\nAmaker, Melvyn Zarr, and Charles L. Black, Jr.\nAssistant Attorney General Leonard argued the cause\nfor the United States. With him on the memorandum\nwas Solicitor General Griswold. A. F. Summer, Attorney\nGeneral of Mississippi, and John C. Satterfield argued\nthe cause and filed a brief for respondents other than\nthe United States.\nLouis F. Oberdorfer argued the cause for the Lawyers'\nCommittee for Civil Rights Under Law as amicus curiae\nurging reversal. With him on the brief were John W.\nDouglas, Bethuel M. Webster, Cyrus R. Vance, Asa\nSokolow, John Schafer, John Doar, Richard C. Dinkel-\nspiel, Arthur H. Dean, Lloyd N. Cutler, Bruce Bromley,\nBerl I. Bernhard, Timothy B. Dyk, and Michael R.\nKlein.\n20\nOCTOBER TERM, 1969\nPer Curiam\n396 U.S.\nRichard B. Sobol and David Rubin filed a brief for the\nNational Education Association as amicus curiae urging\nreversal. The Tennessee Federation for Constitutional\nGovernment filed a brief as amicus curiae.\nPER CURIAM.\nThis case comes to the Court on a petition for cer-\ntiorari to the Court of Appeals for the Fifth Circuit.\nThe petition was granted on October 9, 1969, and the\ncase set down for early argument. The question pre-\nsented is one of paramount importance, involving as it\ndoes the denial of fundamental rights to many thousands\nof school children, who are presently attending Missis-\nsippi schools under segregated conditions contrary to\nthe applicable decisions of this Court. Against this back-\nground the Court of Appeals should have denied all mo-\ntions for additional time because continued operation of\nsegregated schools under a standard of allowing \"all\ndeliberate speed\" for desegregation is no longer constitu-\ntionally permissible. Under explicit holdings of this\nCourt the obligation of every school district is to ter-\nminate dual school systems at once and to operate now\nand hereafter only unitary schools. Griffin V. School\nBoard, 377 U.S. 218, 234 (1964) ; Green V. County School\nBoard of New Kent County, 391 U.S. 430, 438-439, 442\n(1968). Accordingly,\nIt is hereby adjudged, ordered, and decreed:\n1. The Court of Appeals' order of August 28, 1969, is\nvacated, and the case is remanded to that court to\nissue its decree and order, effective immediately, declaring\nthat each of the school districts here involved may no\nlonger operate a dual school system based on race or\ncolor, and directing that they begin immediately to\noperate as unitary school systems within which no person\nis to be effectively excluded from any school because of\nrace or color.\nALEXANDER v. BOARD OF EDUCATION 21\n19\nPer Curiam\n2. The Court of Appeals may in its discretion direct\nthe schools here involved to accept all or any part of\nthe August 11, 1969, recommendations of the Depart-\nment of Health, Education, and Welfare, with any modi-\nfications which that court deems proper insofar as those\nrecommendations insure a totally unitary school system\nfor all eligible pupils without regard to race or color.\nThe Court of Appeals may make its determination and\nenter its order without further arguments or submissions.\n3. While each of these school systems is being operated\nas a unitary system under the order of the Court of\nAppeals, the District Court may hear and consider objec-\ntions thereto or proposed amendments thereof, provided,\nhowever, that the Court of Appeals' order shall be com-\nplied with in all respects while the District Court con-\nsiders such objections or amendments, if any are made.\nNo amendment shall become effective before being passed\nupon by the Court of Appeals.\n4. The Court of Appeals shall retain jurisdiction to\ninsure prompt and faithful compliance with its order,\nand may modify or amend the same as may be deemed\nnecessary or desirable for the operation of a unitary\nschool system.\n5. The order of the Court of Appeals dated August 28,\n1969, having been vacated and the case remanded for\nproceedings in conformity with this order, the judgment\nshall issue forthwith and the Court of Appeals is re-\nquested to give priority to the execution of this judgment\nas far as possible and necessary.\nCASES ADJUDGED\nIN THE\nSUPREME COURT OF THE UNITED STATES\nAT\nOCTOBER TERM, 1970\nSWANN ET AL. v. CHARLOTTE-MECKLENBURG\nBOARD OF EDUCATION ET AL.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS\nFOR THE FOURTH CIRCUIT\nNo. 281. Argued October 12, 1970-Decided April 20, 1971*\nThe Charlotte-Mecklenburg school system, which includes the city of\nCharlotte, North Carolina, had more than 84,000 students in 107\nschools in the 1968-1969 school year. Approximately 29%\n(24,000) of the pupils were Negro, about 14,000 of whom attended\n21 schools that were at least 99% Negro. This resulted from\na desegregation plan approved by the District Court in 1965, at\nthe commencement of this litigation. In 1968 petitioner Swann\nmoved for further relief based on Green V. County School Board,\n391 U.S. 430, which required school boards to \"come forward with\na plan that promises realistically to work\nnow\nuntil it\nis clear that state-imposed segregation has been completely re-\nmoved.\" The District Court ordered the school board in April\n1969 to provide a plan for faculty and student desegregation.\nFinding the board's submission unsatisfactory, the District Court\nappointed an expert to submit a desegregation plan. In February\n1970, the expert and the board presented plans, and the court\nadopted the board's plan, as modified, for the junior and senior\nhigh schools, and the expert's proposed plan for the elementary\nschools. The Court of Appeals affirmed the District Court's\norder as to faculty desegregation and the secondary school plans,\n*Together with No. 349, Charlotte-Mecklenburg Board of Educa-\ntion et al. V. Swann et al., also on certiorari to the same court.\n1\n2\nOCTOBER TERM, 1970\nSyllabus\n402 U.S.\nbut vacated the order respecting elementary schools, fearing that\nthe provisions for pairing and grouping of elementary schools\nwould unreasonably burden the pupils and the board. The case\n(1)\nwas remanded to the District Court for reconsideration and sub-\ngate\nschools\nmission of further plans. This Court granted certiorari and di-\nmust\nrected reinstatement of the District Court's order pending further\nwhole\nproceedings in that court. On remand the District Court received\ntwo new plans, and ordered the board to adopt a plan, or the\nin\nexpert's plan would remain in effect. After the board \"acquiesced\"\n22-25\nin the expert's plan, the District Court directed that it remain in\n(2)\neffect. Held:\nTof\n1. Today's objective is to eliminate from the public schools all\nvestiges of state-imposed segregation that was held violative of\nequal protection guarantees by Brown V. Board of Education, 347\nthe\ncourt\nU.S. 483, in 1954. P. 15.\nor\nput\n2. In default by the school authorities of their affirmative obli-\ngation to proffer acceptable remedies, the district courts have\nbroad power to fashion remedies that will assure unitary school\nbe effective\nsystems. P. 16.\ndent true\n3. Title IV of the Civil Rights Act of 1964 does not restrict or\nbe\nwithdraw from the federal courts their historic equitable remedial\npowers. The proviso in 42 U.S. C. § 2000c-6 was designed simply\nto foreclose any interpretation of the Act as expanding the existing\npowers of the federal courts to enforce the Equal Protection Clause.\nPp. 16-18.\n4. Policy and practice with regard to faculty, staff, transporta-\ntion, extracurricular activities, and facilities are among the most\nimportant indicia of a segregated system, and the first remedial\nresponsibility of school authorities is to eliminate invidious racial\ndistinctions in those respects. Normal administrative practice\nshould then produce schools of like quality, facilities, and staffs.\nPp. 18-19.\n5. The Constitution does not prohibit district courts from using\ntheir equity power to order assignment of teachers to achieve a\nparticular degree of faculty desegregation. United States V. Mont-\ngomery County Board of Education, 395 U. S. 225, was properly\nfollowed by the lower courts in this case. Pp. 19-20.\n6. In devising remedies to eliminate legally imposed segregation,\nlocal authorities and district courts must see to it that future\nof\name\nschool construction and abandonment are not used and do not\nserve to perpetuate or re-establish a dual system. Pp. 20-21.\nFORD\n-\nSWANN v. BOARD OF EDUCATION\n3\n1\nSyllabus\n7. Four problem areas exist on the issue of student assignment:\n(1) Racial quotas. The constitutional command to desegre-\ngate schools does not mean that every school in the community\nmust always reflect the racial composition of the system as a\nwhole; here the District Court's very limited use of the racial\nratio-not as an inflexible requirement, but as a starting point\nin shaping a remedy-was within its equitable discretion. Pp.\n22-25.\n(2) One-race schools. While the existence of a small number\nof one-race, or virtually one-race, schools does not in itself denote\na system that still practices segregation by law, the court should\nscrutinize such schools and require the school authorities to satisfy\nthe court that the racial composition does not result from present\nor past discriminatory action on their part. Pp. 25-26.\nAn optional majority-to-minority transfer provision has long\nbeen recognized as a useful part of a desegregation plan, and to\nbe effective such arrangement must provide the transferring stu-\ndent free transportation and available space in the school to which\nhe desires to move. Pp. 26-27.\n(3) Attendance zones. The remedial altering of attendance\nzones is not, as an interim corrective measure, beyond the remedial\npowers of a district court. A student assignment plan is not\nacceptable merely because it appears to be neutral, for such a\nplan may fail to counteract the continuing effects of past school\nsegregation. The pairing and grouping of noncontiguous zones is\na permissible tool; judicial steps going beyond contiguous zones\nshould be examined in light of the objectives to be sought. No\nrigid rules can be laid down to govern conditions in different\nlocalities. Pp. 27-29.\n(4) Transportation. The District Court's conclusion that\nassignment of children to the school nearest their home serving\ntheir grade would not effectively dismantle the dual school system\nis supported by the record, and the remedial technique of requiring\nbus transportation as a tool of school desegregation was within\nthat court's power to provide equitable relief. An objection to\ntransportation of students may have validity when the time or\ndistance of travel is so great as to risk either the health of the\nchildren or significantly impinge on the educational process: limits\non travel time will vary with many factors, but probably with\nnone more than the age of the students. Pp. 29-31.\n4\nOCTOBER TERM, 1970\nSWANN V. I\nSyllabus\n402 U.S.\n1\nOpin\n8. Neither school authorities nor district courts are constitu-\nJr., Charles R. Jonas,\ntionally required to make year-by-year adjustments of the racial\nClassroom Teachers\ncomposition of student bodies once a unitary system has been\nachieved. Pp. 31-32.\nMecklenburg School Sy\n431 F. 2d 138, affirmed as to those parts in which it affirmed the\nJr., for Mrs. H. W. Cu\nDistrict Court's judgment. The District Court's order of Au-\nof Education of the I\ngust 7, 1970, is also affirmed.\ntrict; by Jack Petree\nMemphis City Schools\nBURGER, C. J., delivered the opinion for a unanimous Court.\nJackson Chamber of C\nJulius LeVonne Chambers and James M. Nabrit III\nJ. Pollak, Benjamin W\nargued the cause for petitioners in No. 281 and respond-\nNational Education As\nents in No. 349. With them on the briefs were Jack\nRichard B. Sobol, and ,\nGreenberg, Norman J. Chachkin, C. O. Pearson, and\nNegro College Fund, I\nAnthony G. Amsterdam.\nConcerned Citizens A\nConley, Floyd B. Mch\nWilliam J. Wagonner and Benjamin S. Horack argued\nthe Congress of Racial\nthe cause and filed briefs for respondents in No. 281 and\neration for Constitution\npetitioners in No. 349.\nC. Cramer, pro se, and 4\nSolicitor General Griswold argued the cause for the\nW. Watson et al., for M\nUnited States as amicus curiae in both cases. With him\nBennett, pro se, Jaman\non the brief was Assistant Attorney General Leonard.\nBuckman for Charles E.\nBriefs of amici curiae in No. 281 were filed by Earl\nand M. T. Bohannon, J\nFaircloth, Attorney General, Robert J. Kelly, Deputy\nWilliam B. Spong\nJr.,\nAttorney General, Ronald W. Sabo, Assistant Attorney\nMR. CHIEF Jearica\nGeneral, and Rivers Buford for the State of Florida; by\nthe Court.\nAndrew P. Miller, Attorney General, William G. Broad-\ndus and Theodore J. Markow, Assistant Attorneys Gen-\nWe granted certi\nissues as to the dutine\neral, Lewis F. Powell, Jr., John W. Riely, and Guy K.\nof powers of federal\nTower for the Commonwealth of Virginia; by Claude R.\nto eliminate racially\nKirk, Jr., pro se, and Gerald Mager for Claude R. Kirk,\nand maintained by\nJr., Governor of Florida; by W. F. Womble for the\nEducation, 347 L.\nWinston-Salem/Forsyth County Board of Education; by\nThis case and Lime\nRaymond B. Witt, Jr., and Eugene N. Collins for the\ning a long history of\nChattanooga Board of Education; by Kenneth W. Cleary\nfor the School Board of Manatee County, Florida; by\n:\nMcDanici\n-\nW. Crosby Few and John M. Allison for the School\nSchool\nBoard of Hillsborough County, Florida; by Sam J. Ervin,\nMoore\nr.\nSWANN v. BOARD OF EDUCATION\n5\n1\nOpinion of the Court\nJr., Charles R. Jonas, and Ernest F. Hollings for the\nClassroom Teachers Association of the Charlotte-\nMecklenburg School System, Inc.; by Mark Wells White,\nJr., for Mrs. H. W. Cullen et al., members of the Board\nof Education of the Houston Independent School Dis-\ntrict; by Jack Petree for the Board of Education of\nMemphis City Schools; by Sherwood W. Wise for the\nJackson Chamber of Commerce, Inc., et al.; by Stephen\nJ. Pollak, Benjamin W. Boley, and David Rubin for the\nNational Education Association; by William L. Taylor,\nRichard B. Sobol, and Joseph L. Rauh, Jr., for the United\nNegro College Fund, Inc., et al.; by Owen H. Page for\nConcerned Citizens Association, Inc.; by Charles S.\nConley, Floyd B. McKissick, and Charles S. Scott for\nthe Congress of Racial Equality; by the Tennessee Fed-\neration for Constitutional Government et al.; by William\nC. Cramer, pro se, and Richard B. Peet, joined by Albert\nW. Watson et al., for William C. Cramer; by Charles E.\nBennett, pro se, James C. Rinaman, Jr., and Yardley D.\nBuckman for Charles E. Bennett; by Calvin H. Childress\nand M. T. Bohannon, Jr., for David E. Allgood et al.; by\nWilliam B. Spong, Jr., and by Newton Collier Estes.\nMR. CHIEF JUSTICE BURGER delivered the opinion of\nthe Court.\nWe granted certiorari in this case to review important\nissues as to the duties of school authorities and the scope\nof powers of federal courts under this Court's mandates\nto eliminate racially separate public schools established\nand maintained by state action. Brown V. Board of\nEducation, 347 U. S. 483 (1954) (Brown I).\nThis case and those argued with it 1 arose in States hav-\ning a long history of maintaining two sets of schools in a\n1 McDaniel V. Barresi, No. 420, post, p. 39; Davis V. Board of\nSchool Commissioners of Mobile County, No. 436, post, p. 33;\nMoore V. Charlotte-Mecklenburg Board of Education, No. 444, post,\n6\nOCTOBER TERM, 1970\nSWANN\nOpinion of the Court\n402 U.S.\n1\nsingle school system deliberately operated to carry out a\nJune 1969 there\ngovernmental policy to separate pupils in schools solely\ndents in the syste\non the basis of race. That was what Brown V. Board of\nwithin the city\nEducation was all about. These cases present us with\n21,000-approxima\nthe problem of defining in more precise terms than here-\n21 schools which W\ntofore the scope of the duty of school authorities and\n99% Negro\ndistrict courts in implementing Brown I and the man-\nThis situation: ca\ndate: to eliminate dual systems and establish unitary\napproved by the\nsystems at once. Meanwhile district courts and courts\nof the present lit\nof appeals have struggled in hundreds of cases with a\n(WDNC), aff'd, 36\nmultitude and variety of problems under this Court's\ngeographic zoning\ngeneral directive. Understandably, in an area of evolv-\npresent proceeding\ning remedies, those courts had to improvise and experi-\npetitioner Swann's\nment without detailed or specific guidelines. This Court,\nGreen V: County S\nin Brown I, appropriately dealt with the large consti-\nits companion case:\ntutional principles; other federal courts had to grapple\nthe system fell sh\nwith the flinty, intractable realities of day-to-day imple-\nsystem that those\nmentation of those constitutional commands. Their\nThe District Co\nefforts, of necessity, embraced a process of \"trial and\nceived voluminous\nerror,\" and our effort to formulate guidelines must take\ntain actions of th.\ninto account their experience.\nthe court also four\nand county resulte\nI\ngovernment\nThe Charlotte-Mecklenburg school system, the 43d\nSchool board actior\nlargest in the Nation, encompasses the city of Charlotte\nby locating schools\nand surrounding Mecklenburg County, North Carolina.\nthe size of the schs\nThe area is large-550 square miles-spanning roughly\nmediate neighborhs\n22 miles east-west and 36 miles north-south. During the\nThese findingsower\n1968-1969 school year the system served more than 84,000\nof Appeals. of\npupils in 107 schools. Approximately 71% of the\nIn April:1969\npupils were found to be white and 29% Negro. As of\nboard to come for\nstudent desegregat\np. 47; North Carolina State Board of Education V. Swann, No. 498,\nby the court in Jun\npost, p. 43. For purposes of this opinion the cross-petitions in\nNos. 281 and 349 are treated as a single case and will be referred\n2 Raney V. Board\nto as \"this case.\"\nMonroe V. Board of (\nSWANN v. BOARD OF EDUCATION\n7\n1\nOpinion of the Court\nJune 1969 there were approximately 24,000 Negro stu-\ndents in the system, of whom 21,000 attended schools\nwithin the city of Charlotte. Two-thirds of those\n21,000-approximately 14,000 Negro students-attended\n21 schools which were either totally Negro or more than\n99% Negro.\nThis situation came about under a desegregation plan\napproved by the District Court at the commencement\nof the present litigation in 1965, 243 F. Supp. 667\n(WDNC), aff'd, 369 F. 2d 29 (CA4 1966), based upon\ngeographic zoning with a free-transfer provision. The\npresent proceedings were initiated in September 1968 by\npetitioner Swann's motion for further relief based on\nGreen V: County School Board, 391 U. S. 430 (1968), and\nits companion cases.2 All parties now agree that in 1969\nthe system fell short of achieving the unitary school\nsystem that those cases require.\nThe District Court held numerous hearings and re-\nceived voluminous evidence. In addition to finding cer-\ntain actions of the school board to be discriminatory,\nthe court also found that residential patterns in the city\nand county resulted in part from federal, state, and local\ngovernment action other than school board decisions.\nSchool board action based on these patterns, for example,\nby locating schools in Negro residential areas and fixing\nthe size of the schools to accommodate the needs of im-\nmediate neighborhoods, resulted in segregated education.\nThese findings were subsequently accepted by the Court\nof Appeals.\nIn April 1969 the District Court ordered the school\nboard to come forward with a plan for both faculty and\nstudent desegregation. Proposed plans were accepted\nby the court in June and August 1969 on an interim basis\n2 Raney V. Board of Education, 391 U. S. 443 (1968), and\nMonroe V. Board of Commissioners, 391 U. S. 450 (1968).\n8\nOCTOBER TERM, 1970\nSWA\nOpinion of the Court\n402 U.S.\n1\nonly, and the board was ordered to file a third plan by\nThe board pl\nNovember 1969. In November the board moved for an\nlied entirely up\nextension of time until February 1970, but when that\nMore than half\nwas denied the board submitted a partially completed\nin nine schools\nplan. In December 1969 the District Court held that\nmately half of\nthe board's submission was unacceptable and appointed\nsigned to schoo\nan expert in education administration, Dr. John Finger,\nThe Finger 1\nto prepare a desegregation plan. Thereafter in Feb-\nappointed expe\nruary 1970, the District Court was presented with two\nzoning plan for\nalternative pupil assignment plans-the finalized \"board\nit required the\nplan\" and the \"Finger plan.\"\ntransported from\nThe Board Plan. As finally submitted, the school\nto the nearly al\nboard plan closed seven schools and reassigned their\nThe Finger P\npupils. It restructured school attendance zones to\nmuch of the re\nachieve greater racial balance but maintained existing\nthe creation of\ngrade structures and rejected techniques such as pairing\nlite plan, inner-\nand clustering as part of a desegregation effort. The\ntendance some\nplan created a single athletic league, eliminated the pre-\njunior high sch\nviously racial basis of the school bus system, provided\nevery junior M\nracially mixed faculties and administrative staffs, and\nThe Finger\nmodified its free-transfer plan into an optional majority-\nin its handling\nto-minority transfer system.\nRather than rul\nThe board plan proposed substantial assignment of\nFinger\nNegroes to nine of the system's 10 high schools, produc-\ntechnique\ning 17% to 36% Negro population in each. The pro-\nout the\njected Negro attendance at the 10th school, Independence,\nThe\nwas 2%. The proposed attendance zones for the high\nschools were typically shaped like wedges of a pie, extend-\nby\ning outward from the center of the city to the suburban\nand rural areas of the county in order to afford residents\nmain\nof the center city area access to outlying schools.\nIn\nits\nAs for junior high schools, the board plan rezoned the\nin\nthe\n21 school areas SO that in 20 the Negro attendance would\nstated:\nrange from 0% to 38%. The other school, located in\n\"Frod\nthe heart of the Negro residential area, was left with an\nIf\nthe\nas\nde\nd\nenrollment of 90% Negro.\nSWANN v. BOARD OF EDUCATION\n9\n1\nOpinion of the Court\nThe board plan with respect to elementary schools re-\nlied entirely upon gerrymandering of geographic zones.\nMore than half of the Negro elementary pupils were left\nin nine schools that were 86% to 100% Negro; approxi-\nmately half of the white elementary pupils were as-\nsigned to schools 86% to 100% white.\nThe Finger Plan. The plan submitted by the court-\nappointed expert, Dr. Finger, adopted the school board\nzoning plan for senior high schools with one modification:\nit required that an additional 300 Negro students be\ntransported from the Negro residential area of the city\nto the nearly all-white Independence High School.\nThe Finger plan for the junior high schools employed\nmuch of the rezoning plan of the board, combined with\nthe creation of nine \"satellite\" zones.³ Under the satel-\nlite plan, inner-city Negro students were assigned by at-\ntendance zones to nine outlying predominately white\njunior high schools, thereby substantially desegregating\nevery junior high school in the system.\nThe Finger plan departed from the board plan chiefly\nin its handling of the system's 76 elementary schools.\nRather than relying solely upon geographic zoning, Dr.\nFinger proposed use of zoning, pairing, and grouping\ntechniques, with the result that student bodies through-\nout the system would range from 9% to 38% Negro.4\nThe District Court described the plan thus:\n\"Like the board plan, the Finger plan does as much\nby rezoning school attendance lines as can reasonably\n3 A \"satellite zone\" is an area which is not contiguous with the\nmain attendance zone surrounding the school.\n4 In its opinion and order of December 1, 1969, later incorporated\nin the order appointing Dr. Finger as consultant, the District Court\nstated:\n\"Fixed ratios of pupils in particular schools will not be set.\nIf the board in one of its three tries had presented a plan for\ndesegregation, the court would have sought ways to approve varia-\n10\nOCTOBER TERM, 1970\nOpinion of the Court\n402 U.S.\nbe accomplished. However, unlike the board plan,\nit does not stop there. It goes further and desegre-\ngates all the rest of the elementary schools by the\ntechnique of grouping two or three outlying schools\nwith one black inner city school; by transporting\nblack students from grades one through four to the\noutlying white schools; and by transporting white\nstudents from the fifth and sixth grades from the\noutlying white schools to the inner city black school.\"\nUnder the Finger plan, nine inner-city Negro schools\nwere grouped in this manner with 24 suburban white\nschools.\nOn February 5, 1970, the District Court adopted the\nboard plan, as modified by Dr. Finger, for the junior and\nsenior high schools. The court rejected the board ele-\nmentary school plan and adopted the Finger plan as\npresented. Implementation was partially stayed by the\nCourt of Appeals for the Fourth Circuit on March 5, and\nthis Court declined to disturb the Fourth Circuit's order,\n397 U. S. 978 (1970).\nOn appeal the Court of Appeals affirmed the District\nCourt's order as to faculty desegregation and the second-\nary school plans, but vacated the order respecting ele-\nmentary schools. While agreeing that the District Court\nproperly disapproved the board plan concerning these\nschools, the Court of Appeals feared that the pairing and\ngrouping of elementary schools would place an unrea-\nsonable burden on the board and the system's pupils.\nThe case was remanded to the District Court for recon-\nsideration and submission of further plans. 431 F. 2d\ntions in pupil ratios. In default of any such plan from the school\nboard, the court will start with the thought\nthat efforts should\nbe made to reach a 71-29 ratio in the various schools SO that there\nwill be no basis for contending that one school is racially different\nfrom the others, but to understand that variations from that norm\nmay be unavoidable.\" 306 F. Supp. 1299, 1312.\nSWANN v. BOARD OF EDUCATION\n11\n1\nOpinion of the Court\n138. This Court granted certiorari, 399 U. S. 926, and\ndirected reinstatement of the District Court's order pend-\ning further proceedings in that court.\nOn remand the District Court received two new plans\nfor the elementary schools: a plan prepared by the\nUnited States Department of Health, Education, and\nWelfare (the HEW plan) based on contiguous grouping\nand zoning of schools, and a plan prepared by four mem-\nbers of the nine-member school board (the minority plan)\nachieving substantially the same results as the Finger\nplan but apparently with slightly less transportation. A\nmajority of the school board declined to amend its pro-\nposal. After a lengthy evidentiary hearing the District\nCourt concluded that its own plan (the Finger plan), the\nminority plan, and an earlier draft of the Finger plan\nwere all reasonable and acceptable. It directed the board\nto adopt one of the three or in the alternative to come\nforward with a new, equally effective plan of its own;\nthe court ordered that the Finger plan would remain in\neffect in the event the school board declined to adopt a\nnew plan. On August 7, the board indicated it would\n\"acquiesce\" in the Finger plan, reiterating its view that\nthe plan was unreasonable. The District Court, by order\ndated August 7, 1970, directed that the Finger plan re-\nmain in effect.\nII\nNearly 17 years ago this Court held, in explicit terms,\nthat state-imposed segregation by race in public schools\ndenies equal protection of the laws. At no time has the\nCourt deviated in the slightest degree from that holding\nor its constitutional underpinnings. None of the parties\nbefore us challenges the Court's decision of May 17, 1954,\nthat\n\"in the field of public education the doctrine of\n'separate but equal' has no place. Separate educa-\ntional facilities are inherently unequal. Therefore,\n419-882 72 6\n12\nOCTOBER TERM, 1970\nOpinion of the Court\n402 U.S.\nwe hold that the plaintiffs and others similarly situ-\nated\nare, by reason of the segregation com-\nplained of, deprived of the equal protection of the\nlaws guaranteed by the Fourteenth Amendment.\n\"Because these are class actions, because of the\nwide applicability of this decision, and because of\nthe great variety of local conditions, the formulation\nof decrees in these cases presents problems of con-\nsiderable complexity.\" Brown V. Board of Educa-\ntion, supra, at 495.\nNone of the parties before us questions the Court's\n1955 holding in Brown II, that\n\"School authorities have the primary responsibility\nfor elucidating, assessing, and solving these prob-\nlems; courts will have to consider whether the action\nof school authorities constitutes good faith imple-\nmentation of the governing constitutional principles.\nBecause of their proximity to local conditions and\nthe possible need for further hearings, the courts\nwhich originally heard these cases can best perform\nthis judicial appraisal. Accordingly, we believe it\nappropriate to remand the cases to those courts.\n\"In fashioning and effectuating the decrees, the\ncourts will be guided by equitable principles. Tra-\nditionally, equity has been characterized by a prac-\ntical flexibility in shaping its remedies and by a\nfacility for adjusting and reconciling public and\nprivate needs. These cases call for the exercise of\nthese traditional attributes of equity power. At\nstake is the personal interest of the plaintiffs in ad-\nmission to public schools as soon as practicable on a\nnondiscriminatory basis. To effectuate this inter-\nest may call for elimination of a variety of obstacles\nin making the transition to school systems operated\nin accordance with the constitutional principles set\nforth in our May 17, 1954, decision. Courts of\nSWANN v. BOARD OF EDUCATION\n13\n1\nOpinion of the Court\nequity may properly take into account the public\ninterest in the elimination of such obstacles in a\nsystematic and effective manner. But it should go\nwithout saying that the vitality of these constitu-\ntional principles cannot be allowed to yield simply\nbecause of disagreement with them.\" Brown V.\nBoard of Education, 349 U. S. 294, 299-300 (1955).\nOver the 16 years since Brown II, many difficulties\nwere encountered in implementation of the basic con-\nstitutional requirement that the State not discriminate\nbetween public school children on the basis of their race.\nNothing in our national experience prior to 1955 prepared\nanyone for dealing with changes and adjustments of the\nmagnitude and complexity encountered since then. De-\nliberate resistance of some to the Court's mandates has\nimpeded the good-faith efforts of others to bring school\nsystems into compliance. The detail and nature of these\ndilatory tactics have been noted frequently by this Court\nand other courts.\nBy the time the Court considered Green V. County\nSchool Board, 391 U. S. 430, in 1968, very little prog-\nress had been made in many areas where dual school\nsystems had historically been maintained by operation\nof state laws. In Green, the Court was confronted\nwith a record of a freedom-of-choice program that the\nDistrict Court had found to operate in fact to pre-\nserve a dual system more than a decade after Brown II.\nWhile acknowledging that a freedom-of-choice concept\ncould be a valid remedial measure in some circumstances,\nits failure to be effective in Green required that:\n\"The burden on a school board today is to come for-\nward with a plan that promises realistically to\nwork\nnow\nuntil it is clear that state-imposed\nsegregation has been completely removed.\" Green,\nsupra, at 439.\n14\nOCTOBER TERM, 1970\nOpinion of the Court\n402 U.S.\nThis was plain language, yet the 1969 Term of Court\nbrought fresh evidence of the dilatory tactics of many\nschool authorities. Alexander V. Holmes County Board\nof Education, 396 U. S. 19, restated the basic obligation\nasserted in Griffin V. School Board, 377 U. S. 218, 234\n(1964), and Green, supra, that the remedy must be im-\nplemented forthwith.\nThe problems encountered by the district courts and\ncourts of appeals make plain that we should now try to\namplify guidelines, however incomplete and imperfect,\nfor the assistance of school authorities and courts.5 The\nfailure of local authorities to meet their constitutional\nobligations aggravated the massive problem of convert-\ning from the state-enforced discrimination of racially\nseparate school systems. This process has been rendered\nmore difficult by changes since 1954 in the structure and\npatterns of communities, the growth of student popula-\ntion,⁶ movement of families, and other changes, some\nof which had marked impact on school planning, some-\ntimes neutralizing or negating remedial action before it\nwas fully implemented. Rural areas accustomed for\nhalf a century to the consolidated school systems imple-\nmented by bus transportation could make adjustments\nmore readily than metropolitan areas with dense and\nshifting population, numerous schools, congested and\ncomplex traffic patterns.\n5 The necessity for this is suggested by the situation in the Fifth\nCircuit where 166 appeals in school desegregation cases were heard\nbetween December 2, 1969, and September 24, 1970.\n6 Elementary public school population (grades 1-6) grew from\n17,447,000 in 1954 to 23,103,000 in 1969; secondary school popula-\ntion (beyond grade 6) grew from 11,183,000 in 1954 to 20,775,000 in\n1969. Digest of Educational Statistics, Table 3, Office of Education\nPub. 10024-64; Digest of Educational Statistics, Table 28, Office of\nEducation Pub. 10024-70.\nSWANN v. BOARD OF EDUCATION\n15\n1\nOpinion of the Court\nIII\nThe objective today remains to eliminate from the\npublic schools all vestiges of state-imposed segregation.\nSegregation was the evil struck down by Brown I as\ncontrary to the equal protection, guarantees of the Con-\nstitution. That was the violation sought to be corrected\nby the remedial measures of Brown II. That was the\nbasis for the holding in Green that school authorities\nare \"clearly charged with the affirmative duty to take\nwhatever steps might be necessary to convert to a unitary\nsystem in which racial discrimination would be eliminated\nroot and branch.\" 391 U.S., at 437-438.\nIf school authorities fail in their affirmative obligations\nunder these holdings, judicial authority may be invoked.\nOnce a right and a violation have been shown, the scope\nof a district court's equitable powers to remedy past\nwrongs is broad, for breadth and flexibility are inherent\nin equitable remedies.\n\"The essence of equity jurisdiction has been the\npower of the Chancellor to do equity and to mould\neach decree to the necessities of the particular case.\nFlexibility rather than rigidity has distinguished it.\nThe qualities of mercy and practicality have made\nequity the instrument for nice adjustment and recon-\nciliation between the public interest and private\nneeds as well as between competing private claims.\"\nHecht Co. V. Bowles, 321 U. S. 321, 329-330 (1944),\ncited in Brown II, supra, at 300.\nThis allocation of responsibility once made, the Court\nattempted from time to time to provide some guidelines\nfor the exercise of the district judge's discretion and\nfor the reviewing function of the courts of appeals. How-\never, a school desegregation case does not differ funda-\nmentally from other cases involving the framing of\n16\nOCTOBER TERM, 1970\nOpinion of the Court\n402 U.S.\n1\nequitable remedies to repair the denial of a constitutional\ntutes\nright. The task is to correct, by a balancing of the in-\nefforts,\ndividual and collective interests, the condition that of-\ntransition\nfends the Constitution.\nAttorney\nIn seeking to define even in broad and general terms\nfederal\nhow far this remedial power extends it is important to\n\"desegre\nremember that judicial powers may be exercised only on\nthe basis of a constitutional violation. Remedial judi-\ncial authority does not put judges automatically in the\nshoes of school authorities whose powers are plenary.\nbut\nJudicial authority enters only when local authority\ndefaults.\nSchool authorities are traditionally charged with broad\nSection\npower to formulate and implement educational policy\nstitute\nand might well conclude, for example, that in order\nto prepare students to live in a pluralistic society\neach school should have a prescribed ratio of Negro to\nwhite students reflecting the proportion for the district\nas a whole. To do this as an educational policy is within\nthe broad discretionary powers of school authorities; ab-\nsent a finding of a constitutional violation, however, that\nwould not be within the authority of a federal court.\nAs with any equity case, the nature of the violation de-\ntermines the scope of the remedy. In default by the\n0\nschool authorities of their obligation to proffer acceptable\nsur\nremedies, a district court has broad power to fashion a\nActor\nremedy that will assure a unitary school system.\nThe school authorities argue that the equity powers of\nfederal district courts have been limited by Title IV of\nthe Civil Rights Act of 1964, 42 U.S. C. § 2000c. The\nlanguage and the history of Title IV show that it was\nenacted not to limit but to define the role of the Federal\nGovernment in the implementation of the Brown I de-\ncision. It authorizes the Commissioner of Education to\nFour\nprovide technical assistance to local boards in the prepara-\ntion of desegregation plans, to arrange \"training insti-\nFORD\nSWANN v. BOARD OF EDUCATION\n17\n1\nOpinion of the Court\ntutes\" for school personnel involved in desegregation\nefforts, and to make grants directly to schools to ease the\ntransition to unitary systems. It also authorizes the\nAttorney General, in specified circumstances, to initiate\nfederal desegregation suits. Section 2000c (b) defines\n\"desegregation\" as it is used in Title IV:\n\"Desegregation\" means the assignment of students\nto public schools and within such schools without\nregard to their race, color, religion, or national origin,\nbut 'desegregation' shall not mean the assignment of\nstudents to public schools in order to overcome racial\nimbalance.\"\nSection 2000c-6, authorizing the Attorney General to in-\nstitute federal suits, contains the following proviso:\n\"nothing herein shall empower any official or court\nof the United States to issue any order seeking to\nachieve a racial balance in any school by requiring\nthe transportation of pupils or students from one\nschool to another or one school district to another\nin order to achieve such racial balance, or otherwise\nenlarge the existing power of the court to insure\ncompliance with constitutional standards.\"\nOn their face, the sections quoted purport only to in-\nsure that the provisions of Title IV of the Civil Rights\nAct of 1964 will not be read as granting new powers. The\nproviso in § 2000c-6 is in terms designed to foreclose any\ninterpretation of the Act as expanding the existing powers\nof federal courts to enforce the Equal Protection Clause.\nThere is no suggestion of an intention to restrict those\npowers or withdraw from courts their historic equitable\nremedial powers. The legislative history of Title IV\nindicates that Congress was concerned that the Act\nmight be read as creating a right of action under the\nFourteenth Amendment in the situation of so-called \"de\nfacto segregation,\" where racial imbalance exists in the\n18\nOCTOBER TERM, 1970\nSWANN\nOpinion of the Court\n402 U.S.\n1 If COM\nschools but with no showing that this was brought about\ntive practice\nby discriminatory action of state authorities. In short,\nfacilitie\nand\nthere is nothing in the Act that provides us material\nhowever\nassistance in answering the question of remedy for state-\nconstruct\nimposed segregation in violation of Brown I. The basis\nIn the\nof our decision must be the prohibition of the Fourteenth\nschool-board\nthat\nAmendment that no State shall \"deny to any person\nteachers\nwithin its jurisdiction the equal protection of the laws.\"\nargues that\nusing their\nIV\nto\nWe\nWe turn now to the problem of defining with more\nIn Unite\nparticularity the responsibilities of school authorities in\nEducatio\ndesegregating a state-enforced dual school system in light\nas\na\nof the Equal Protection Clause. Although the several\na\nratio\nof\nrelated cases before us are primarily. concerned with prob-\nthe\nsame\nlems of student assignment, it may be helpful to begin\ncated on\nwith a brief discussion of other aspects of the process.\nIn Green, we pointed out that existing policy and prac-\ntive\ntice with regard to faculty, staff, transportation, extra-\ncurricular activities, and facilities were among the most\nimportant indicia of a segregated system. 391 U.S., at\n435. Independent of student assignment, where it is\npossible to identify a \"white school\" or a \"Negro school\"\nsimply by reference to the racial composition of teachers\nand staff, the quality of school buildings and equipment,\nor the organization of sports activities, a prima facie case\nof violation of substantive constitutional rights under\nthe Equal Protection Clause is shown.\nCourt 0\nWhen a system has been dual in these respects, the\nit\nfirst remedial responsibility of school authorities is to\nsub\neliminate invidious racial distinctions. With respect to\nsuch matters as transportation, supporting personnel, and\nextracurricular activities, no more than this may be nec-\nratio\nessary. Similar corrective action must be taken with\nnot\nbe\nregard to the maintenance of buildings and the distribu-\nportions. 14.\ntion of equipment. In these areas, normal administra-\nSWANN v. BOARD OF EDUCATION\n19\n1\nOpinion of the Court\ntive practice should produce schools of like quality,\nfacilities, and staffs. Something more must be said,\nhowever, as to faculty assignment and new school\nconstruction.\nIn the companion Davis case, post, p. 33, the Mobile\nschool board has argued that the Constitution requires\nthat teachers be assigned on a \"color blind\" basis. It also\nargues that the Constitution prohibits district courts from\nusing their equity power to order assignment of teachers\nto achieve a particular degree of faculty desegregation.\nWe reject that contention.\nIn United States V. Montgomery County Board of\nEducation, 395 U. S. 225 (1969), the District Court set\nas a goal a plan of faculty assignment in each school with\na ratio of white to Negro faculty members substantially\nthe same throughout the system. This order was predi-\ncated on the District Court finding that:\n\"The evidence does not reflect any real administra-\ntive problems involved in immediately desegregating\nthe substitute teachers, the student teachers, the\nnight school faculties, and in the evolvement of a\nreally legally adequate program for the substantial\ndesegregation of the faculties of all schools in the\nsystem commencing with the school year 1968-69.\"\nQuoted at 395 U. S., at 232.\nThe District Court in Montgomery then proceeded to\nset an initial ratio for the whole system of at least two\nNegro teachers out of each 12 in any given school. The\nCourt of Appeals modified the order by eliminating what\nit regarded as \"fixed mathematical\" ratios of faculty and\nsubstituted an initial requirement of \"substantially or\napproximately\" a five-to-one ratio. With respect to the\nfuture, the Court of Appeals held that the numerical\nratio should be eliminated and that compliance should\nnot be tested solely by the achievement of specified pro-\nportions. Id., at 234.\n20\nOCTOBER TERM, 1970\nOpinion of the Court\n402 U.S.\n1\nWe reversed the Court of Appeals and restored the\nthe\nDistrict Court's order in its entirety, holding that the\nare\norder of the District Judge\ncity\n\"was adopted in the spirit of this Court's opinion in\nGreen\nin that his plan 'promises realistically to\nwork, and promises realistically to work now.' The\nmodifications ordered by the panel of the Court\nof Appeals, while of course not intended to do so,\nwould, we think, take from the order some of its\ncapacity to expedite, by means of specific commands,\nthe day when a completely unified, unitary, nondis-\ncriminatory school system becomes a reality instead\nby\nof a hope.\nWe also believe that under all the\ncircumstances of this case we follow the original plan\noutlined in Brown II\nby accepting the more\nspecific and expeditious order of [District] Judge\nborl\nJohnson\n395 U. S., at 235-236 (emphasis\nin original).\nof\nThe principles of Montgomery have been properly fol-\ndent\nlowed by the District Court and the Court of Appeals\nhoo\nin this case.\nThe construction of new schools and the closing of old\nones are two of the most important functions of local\nschool authorities and also two of the most complex.\nThey must decide questions of location and capacity in\nlight of population growth, finances, land values, site\navailability, through an almost endless list of factors to\nbe considered. The result of this will be a decision\nwhich, when combined with one technique or another\nof student assignment, will determine the racial composi-\ndo\ntion of the student body in each school in the system.\nOver the long run, the consequences of the choices will\nbe far reaching. People gravitate toward school facili-\nties, just as schools are located in response to the needs\nof people. The location of schools may thus influence\nSWANN v. BOARD OF EDUCATION\n21\n1\nOpinion of the Court\nthe patterns of residential development of a metropolitan\narea and have important impact on composition of inner-\ncity neighborhoods.\nIn the past, choices in this respect have been used as\na potent weapon for creating or maintaining a state-\nsegregated school system. In addition to the classic\npattern of building schools specifically intended for Negro\nor white students, school authorities have sometimes,\nsince Brown, closed schools which appeared likely to\nbecome racially mixed through changes in neighborhood\nresidential patterns. This was sometimes accompanied\nby building new schools in the areas of white suburban\nexpansion farthest from Negro population centers in\norder to maintain the separation of the races with a\nminimum departure from the formal principles of \"neigh-\nborhood zoning.\" Such a policy does more than simply\ninfluence the short-run composition of the student body\nof a new school. It may well promote segregated resi-\ndential patterns which, when combined with \"neighbor-\nhood zoning,\" further lock the school system into the\nmold of separation of the races. Upon a proper showing\na district court may consider this in fashioning a remedy.\nIn ascertaining the existence of legally imposed school\nsegregation, the existence of a pattern of school construc-\ntion and abandonment is thus a factor of great weight.\nIn devising remedies where legally imposed segregation\nhas been established, it is the responsibility of local\nauthorities and district courts to see to it that future\nschool construction and abandonment are not used and\ndo not serve to perpetuate or re-establish the dual sys-\ntem. When necessary, district courts should retain\njurisdiction to assure that these responsibilities are\ncarried out. Cf. United States V. Board of Public In-\nstruction, 395 F. 2d 66 (CA5 1968); Brewer V. School\nBoard, 397 F. 2d 37 (CA4 1968).\n22\nOCTOBER TERM, 1970\nSWANN\nof\nto\nOpinion of the Court\n402 U.S.\n1\nimpact on other\nV\nreach in this case the\nThe central issue in this case is that of student assign-\nschool: segregation is\nment, and there are essentially four problem areas:\nstate action, without\n(1) to what extent racial balance or racial quotas may\nschool authorities is\nbe used as an implement in a remedial order to correct\nremedial action by\na previously segregated system;\ncase does not present\n(2) whether every all-Negro and all-white school must\nnot decide it\nbe eliminated as an indispensable part of a remedial\nOur objective in\nprocess of desegregation;\nthese cases is to are\n(3) what the limits are, if any, on the rearrangement\npupil of is racial\nof school districts and attendance zones, as a remedial\nindirectly, on\nmeasure; and\nembrace all the proble\n(4) what the limits are, if any, on the use of transpor-\nthose problems contri\ntation facilities to correct state-enforced racial school\ncentrations in some\nsegregation.\nIn this case it\n(1) Racial Balances or Racial Quotas.\nimposed a racial\nThe constant theme and thrust of every holding from\nindividual schools.\nBrown I to date is that state-enforced separation of races\nactually achieved\nin public schools is discrimination that violates the Equal\ntends to blunt that\nProtection Clause. The remedy commanded was to dis-\nof the District Cours of\nmantle dual school systems.\ncourt directing\nWe are concerned in these cases with the elimination\n\"that éfforts\nof the discrimination inherent in the dual school systems,\nin the varior\nnot with myriad factors of human existence which can\nfor contend\ncause discrimination in a multitude of ways on racial,\nfrom the\nreligious, or ethnic grounds. The target of the cases\noperated\nfrom Brown I to the present was the dual school system.\nstudent\nThe elimination of racial discrimination in public schools\n[should\nbe\nis a large task and one that should not be retarded by\nas practin\nefforts to achieve broader purposes lying beyond the\nlevels have\njurisdiction of school authorities. One vehicle can carry\nwhite\nonly a limited amount of baggage. It would not serve\nThe District\nthe important objective of Brown I to seek to use school\ntion \"from that\ndesegregation cases for purposes beyond their scope, al-\ntains\nintimations\nthough desegregation of schools ultimately will have\nSWANN v. BOARD OF EDUCATION\n23\n1\nOpinion of the Court\nimpact on other forms of discrimination. We do not\nreach in this case the question whether a showing that\nschool segregation is a consequence of other types of\nstate action, without any discriminatory action by the\nschool authorities, is a constitutional violation requiring\nremedial action by a school desegregation decree. This\ncase does not present that question and we therefore do\nnot decide it.\nOur objective in dealing with the issues presented by\nthese cases is to see that school authorities exclude no\npupil of a racial minority from any school, directly or\nindirectly, on account of race; it does not and cannot\nembrace all the problems of racial prejudice, even when\nthose problems contribute to disproportionate racial con-\ncentrations in some schools.\nIn this case it is urged that the District Court has\nimposed a racial balance requirement of 71%-29% on\nindividual schools. The fact that no such objective was\nactually achieved-and would appear to be impossible-\ntends to blunt that claim, yet in the opinion and order\nof the District Court of December 1, 1969, we find that\ncourt directing\n\"that éfforts should be made to reach a 71-29 ratio\nin the various schools SO that there will be no basis\nfor contending that one school is racially different\nfrom the others\n,\n[t]hat no school [should] be\noperated with an all-black or predominantly black\nstudent body, [and] [t]hat pupils of all grades\n[should] be assigned in such a way that as nearly\nas practicable the various schools at various grade\nlevels have about the same proportion of black and\nwhite students.\"\nThe District Judge went on to acknowledge that varia-\ntion \"from that norm may be unavoidable.\" This con-\ntains intimations that the \"norm\" is a fixed mathematical\n24\nOCTOBER TERM, 1970\nOpinion of the Court\n402 U.S.\nracial balance reflecting the pupil constituency of the\nsystem. If we were to read the holding of the District\nCourt to require, as a matter of substantive constitu-\ntional right, any particular degree of racial balance or\nmixing, that approach would be disapproved and we\nwould be obliged to reverse. The constitutional com-\nmand to desegregate schools does not mean that every\nschool in every community must always reflect the racial\ncomposition of the school system as a whole.\nAs the voluminous record in this case shows,' the\npredicate for the District Court's use of the 71%-29%\nratio was twofold: first, its express finding, approved by\nthe Court of Appeals and not challenged here, that a\ndual school system had been maintained by the school\nauthorities at least until 1969; second, its finding, also\napproved by the Court of Appeals, that the school board\nhad totally defaulted in its acknowledged duty to come\nforward with an acceptable plan of its own, notwith-\nstanding the patient efforts of the District Judge who, on\nat least three occasions, urged the board to submit plans.8\nAs the statement of facts shows, these findings are abun-\n7 It must be remembered that the District Court entered nearly\na score of orders and numerous sets of findings, and for the most part\neach was accompanied by a memorandum opinion. Considering\nthe pressure under which the court was obliged to operate we\nwould not expect that all inconsistencies and apparent inconsistencies\ncould be avoided. Our review, of course, is on the orders of Febru-\nary 5, 1970, as amended, and August 7, 1970.\n8 The final board plan left 10 schools 86% to 100% Negro and\nyet categorically rejected the techniques of pairing and clustering\nas part of the desegregation effort. As discussed below, the Char-\nlotte board was under an obligation to exercise every reasonable\neffort to remedy the violation, once it was identified, and the\nsuggested techniques are permissible remedial devices. Additionally,\nas noted by the District Court and Court of Appeals, the board plan\ndid not assign white students to any school unless the student\npopulation of that school was at least 60% white. This was an\narbitrary limitation negating reasonable remedial steps.\nSWANN v. BOARD OF EDUCATION\n25\n1\nOpinion of the Court\ndantly supported by the record. It was because of this\ntotal failure of the school board that the District Court\nwas obliged to turn to other qualified sources, and Dr.\nFinger was designated to assist the District Court to do\nwhat the board should have done.\nWe see therefore that the use made of mathematical\nratios was no more than a starting point in the process\nof shaping a remedy, rather than an inflexible require-\nment. From that starting point the District Court pro-\nceeded to frame a decree that was within its discretionary\npowers, as an equitable remedy for the particular circum-\nstances.9 As we said in Green, a school authority's\nremedial plan or a district court's remedial decree is to\nbe judged by its effectiveness. Awareness of the racial\ncomposition of the whole school system is likely to be a\nuseful starting point in shaping a remedy to correct past\nconstitutional violations. In sum, the very limited use\nmade of mathematical ratios was within the equitable\nremedial discretion of the District Court.\n(2) One-race Schools.\nThe record in this case reveals the familiar phenome-\nnon that in metropolitan areas minority groups are often\nfound concentrated in one part of the city. In some\ncircumstances certain schools may remain all or largely\nof one race until new schools can be provided or neigh-\nborhood patterns change. Schools all or predominately\n9 In its August 3, 1970, memorandum holding that the District\nCourt plan was \"reasonable\" under the standard laid down by the\nFourth Circuit on appeal, the District Court explained the approach\ntaken as follows:\n\"This court has not ruled, and does not rule that 'racial balance'\nis required under the Constitution; nor that all black schools in all\ncities are unlawful; nor that all school boards must bus children or\nviolate the Constitution; nor that the particular order entered in\nthis case would be correct in other circumstances not before this\ncourt.\" (Emphasis in original.)\n26\nOCTOBER TERM, 1970\nSWANN BOA\nOpinion of the Court\n402 U.S.\n1\nof one race in a district of mixed population will require\nthe transferring ship\nclose scrutiny to determine that school assignments are\nmust be made availab\nnot part of state-enforced segregation.\nto move. Cf. Elli\nIn light of the above, it should be clear that the\nF. 2d 203, 206 (CA)\nexistence of some small number of one-race, or virtually\nand the companie\none-race, schools within a district is not in and of itself\noption\nthe mark of a system that still practices segregation\n(3) Remedic\nby law. The district judge or school authorities should\nThe maps\nmake every effort to achieve the greatest possible degree\nstrate that\nof actual desegregation and will thus necessarily be con-\nplanners and\ncerned with the elimination of one-race schools. No\ntem has b\nper se rúle can adequately embrace all the difficulties\nmandering\nof reconciling the competing interests involved; but in\nadditional\na system with a history of segregation the need for re-\nof school\nmedial criteria of sufficient specificity to assure a school\nto accom\nauthority's compliance with its constitutional duty war-\nformerh\nrants a presumption against schools that are substan-\nstudent\ntially disproportionate in their racial composition. Where\nthe school authority's proposed plan for conversion from\nnot\nindee\na dual to a unitary system contemplates the continued\nexistence of some schools that are all or predominately\nan\nbe\nof one race, they have the burden of showing that such\nschool assignments are genuinely nondiscriminatory.\nThe court should scrutinize such schools, and the burden\nupon the school authorities will be to satisfy the court\nthat their racial composition is not the result of present\nor past discriminatory action on their part.\nAn optional majority-to-minority transfer provision\nhas long been recognized as a useful part of every desegre-\ngation plan. Provision for optional transfer of those in\nthe majority racial group of a particular school to other\nschools where they will be in the minority is an indis-\npensable remedy for those students willing to transfer\nto other schools in order to lessen the impact on them\nof the state-imposed stigma of segregation. In order\nto be effective, such a transfer arrangement must grant\nSWANN v. BOARD OF EDUCATION\n27\n1\nOpinion of the Court\nthe transferring student free transportation and space\nmust be made available in the school to which he desires\nto move. Cf. Ellis V. Board of Public Instruction, 423\nF. 2d 203, 206 (CA5 1970). The court orders in this\nand the companion Davis case now provide such an\noption.\n(3) Remedial Altering of Attendance Zones.\nThe maps submitted in these cases graphically demon-\nstrate that one of the principal tools employed by school\nplanners and by courts to break up the dual school sys-\ntem has been a frank-and sometimes drastic-gerry-\nmandering of school districts and attendance zones. An\nadditional step was pairing, \"clustering,\" or \"grouping\"\nof schools with attendance assignments made deliberately\nto accomplish the transfer of Negro students out of\nformerly segregated Negro schools and transfer of white\nstudents to formerly all-Negro schools. More often than\nnot, these zones are neither compact 10 nor contiguous;\nindeed they may be on opposite ends of the city. As\nan interim corrective measure, this cannot be said to be\nbeyond the broad remedial powers of a court.\n10 The reliance of school authorities on the reference to the \"revi-\nsion of\nattendance areas into compact units,\" Brown II, at 300\n(emphasis supplied), is misplaced. The enumeration in that opin-\nion of considerations to be taken into account by district courts was\npatently intended to be suggestive rather than exhaustive. The deci-\nsion in Brown II to remand the cases decided in Brown I to local\ncourts for the framing of specific decrees was premised on a recogni-\ntion that this Court could not at that time foresee the particular\nmeans which would be required to implement the constitutional prin-\nciples announced. We said in Green, supra, at 439:\n\"The obligation of the district courts, as it always has been, is\nto assess the effectiveness of a proposed plan in achieving desegrega-\ntion. There is no universal answer to complex problems of desegre-\ngation; there is obviously no one plan that will do the job in every\ncase. The matter must be assessed in light of the circumstances\npresent and the options available in each instance.\"\n419-882 O 72 - 7\n28\nOCTOBER TERM, 1970\nOpinion of the Court\n402 U.S.\n1\nAbsent a constitutional violation there would be no\ndicial 5\nbasis for judicially ordering assignment of students on a\nnations\nracial basis. All things being equal, with no history of\nof what\ndiscrimination, it might well be desirable to assign pupils\nopinion\nto schools nearest their homes. But all things are not\ndo not\nequal in a system that has been deliberately constructed\nzones n\nof the c\nand maintained to enforce racial segregation. The rem-\nedy for such segregation may be administratively awk-\ngood hi\nward, inconvenient, and even bizarre in some situations\ngether.\nand may impose burdens on some; but all awkwardness\nwidely\nall situs\nand inconvenience cannot be avoided in the interim\n(4) 2\nperiod when remedial adjustments are being made to\nThe #\neliminate the dual school systems.\nan imple\nNo fixed or even substantially fixed guidelines can be\nby this\nestablished as to how far a court can go, but it must be\ncannot I\nrecognized that there are limits. The objective is to\nto stude\ndismantle the dual school system. \"Racially neutral\"\nthe infi\nassignment plans proposed by school authorities to a\nof situa\ndistrict court may be inadequate; such plans may fail to\npart of\ncounteract the continuing effects of past school segre-\nperhaps\ngation resulting from discriminatory location of school\ntion from\nsites or distortion of school size in order to achieve or\nschool.\nmaintain an artificial racial separation. When school\nchildren\nauthorities present a district court with a \"loaded game\nschools :\nboard,\" affirmative action in the form of remedial alter-\nThe is\ning of attendance zones is proper to achieve truly non-\naccepted\ndiscriminatory assignments. In short, an assignment\nin this\nplan is not acceptable simply because it appears to be\nneutral.\n12 Duris\nIn this area, we must of necessity rely to a large extent,\nbuses to n\nof 31 mile\nas this Court has for more than 16 years, on the informed\narea were\njudgment of the district courts in the first instance and\n1 whole,\non courts of appeals.\napproxims\nWe hold that the pairing and grouping of noncontigu-\ntrip of 13\nous school zones is a permissible tool and such action is\nchildren *\nlongest for\nto be considered in light of the objectives sought. Ju-\nSWANN v. BOARD OF EDUCATION\n29\n1\nOpinion of the Court\ndicial steps in shaping such zones going beyond combi-\nnations of contiguous areas should be examined in light\nof what is said in subdivisions (1), (2), and (3) of this\nopinion concerning the objectives to be sought. Maps\ndo not tell the whole story since noncontiguous school\nzones may be more accessible to each other in terms\nof the critical travel time, because of traffic patterns and\ngood highways, than schools geographically closer to-\ngether. Conditions in different localities will vary so\nwidely that no rigid rules can be laid down to govern\nall situations.\n(4) Transportation of Students.\nThe scope of permissible transportation of students as\nan implement of a remedial decree has never been defined\nby this Court and by the very nature of the problem it\ncannot be defined with precision. No rigid guidelines as\nto student transportation can be given for application to\nthe infinite variety of problems presented in thousands\nof situations. Bus transportation has been an integral\npart of the public education system for years, and was\nperhaps the single most important factor in the transi-\ntion from the one-room schoolhouse to the consolidated\nschool. Eighteen million of the Nation's public school\nchildren, approximately 39%, were transported to their\nschools by bus in 1969-1970 in all parts of the country.\nThe importance of bus transportation as a normal and\naccepted tool of educational policy is readily discernible\nin this and the companion case, Davis, supra.11 The\n11 During 1967-1968, for example, the Mobile board used 207\nbuses to transport 22,094 students daily for an average round trip\nof 31 miles. During 1966-1967, 7,116 students in the metropolitan\narea were bused daily. In Charlotte-Mecklenburg, the system as\na whole, without regard to desegregation plans, planned to bus\napproximately 23,000 students this year, for an average daily round\ntrip of 15 miles. More elementary school children than high school\nchildren were to be bused, and four- and five-year-olds travel the\nlongest routes in the system.\n30\nOCTOBER TERM, 1970\nSWANN w\nOpinion of the Court\n402 U.S.\n1\no\nCharlotte school authorities did not purport to assign\nstudents on the basis of geographically drawn zones until\nimpinge on the edues\n1965 and then they allowed almost unlimited transfer\nweigh the soundness\nprivileges. The District Court's conclusion that assign-\nof what is mid in -\nment of children to the school nearest their home serving\nIt hardly needs Mati\ntheir grade would not produce an effective dismantling\nwill vary with mas\nof the dual system is supported by the record.\nmore than the age of\nThus the remedial techniques used in the District\ncompeting values in\ndifficult tank with to\nCourt's order were within that court's power to provide\ntally no more 10 the\nequitable relief; implementation of the decree is well\nhave traditionally e\nwithin the capacity of the school authority.\nThe decree provided that the buses used to implement\nthe plan would operate on direct routes. Students would\nbe picked up at schools near their homes and transported\nThe Court of Apr\nthe equitable remain\nto the schools they were to attend. The trips for ele-\nthe term \"reasonable\nmentary school pupils average about seven miles and\nused the term \"fraud\nthe District Court found that they would take \"not over\n\"effective,\" and \"yes\n35 minutes at the most.\" 12 This system compares favor-\nplan that promisms gu\nably with the transportation plan previously operated\nnow.\" On the facts\nin Charlotte under which each day 23,600 students on all\nclude that the order\ngrade levels were transported an average of 15 miles one\nable, feasible and\nway for an average trip requiring over an hour. In these\ndefine the scope of\ncircumstances, we find no basis for holding that the local\nremedial power of\nschool authorities may not be required to employ bus\ndeal with here,\ntransportation as one tool of school desegregation. De-\nsense of basic fairs\nsegregation plans cannot be limited to the walk-in school.\nnot semanties,\nAn objection to transportation of students may have\nsuggest the INSURER 6\nvalidity when the time or distance of travel is SO great\nappropriate scope\nof\nas to either risk the health of the children or significantly\nAt some point,\nthem should have\n12 The District Court found that the school system would have\nCourt's decision in\nto employ 138 more buses than it had previously operated. But\n\"unitary\" in the -\n105 of those buses were already available and the others could\nand Mezander,\neasily be obtained. Additionally, it should be noted that North\nCarolina requires provision of transportation for all students who\nIt does but fullo\nare assigned to schools more than one and one-half miles from their\nsuch systems will\nhomes. N. C. Gen. Stat. § 115-186 (b) (1966).\nin a growing\nSWANN v. BOARD OF EDUCATION\n31\n1\nOpinion of the Court\nimpinge on the educational process. District courts must\nweigh the soundness of any transportation plan in light\nof what is said in subdivisions (1), (2), and (3) above.\nIt hardly needs stating that the limits on time of travel\nwill vary with many factors, but probably with none\nmore than the age of the students. The reconciliation of\ncompeting values in a desegregation case is, of course, a\ndifficult task with many sensitive facets but fundamen-\ntally no more SO than remedial measures courts of equity\nhave traditionally employed.\nVI\nThe Court of Appeals, searching for a term to define\nthe equitable remedial power of the district courts, used\nthe term \"reasonableness.\" In Green, supra, this Court\nused the term \"feasible\" and by implication, \"workable,\"\n\"effective,\" and \"realistic\" in the mandate to develop \"a\nplan that promises realistically to work, and\nto work\nnow.\" On the facts of this case, we are unable to con-\nclude that the order of the District Court is not reason-\nable, feasible and workable. However, in seeking to\ndefine the scope of remedial power or the limits on\nremedial power of courts in an area as sensitive as we\ndeal with here, words are poor instruments to convey the\nsense of basic fairness inherent in equity. Substance,\nnot semantics, must govern, and we have sought to\nsuggest the nature of limitations without frustrating the\nappropriate scope of equity.\nAt some point, these school authorities and others like\nthem should have achieved full compliance with this\nCourt's decision in Brown I. The systems would then be\n\"unitary\" in the sense required by our decisions in Green\nand Alexander.\nIt does not follow that the communities served by\nsuch systems will remain demographically stable, for\nin a growing, mobile society, few will do SO. Neither\n32\nOCTOBER TERM, 1970\nDAVIS v. SCHOOL (\nOpinion of the Court\n402 U.S.\nschool authorities nor district courts are constitution-\nally required to make year-by-year adjustments of the\nDAVIS ET AL D. Be\nracial composition of student bodies once the affirmative\nSIONERS OF\nduty to desegregate has been accomplished and racial\nCERTIORARI TO THE 1\ndiscrimination through official action is eliminated from\nFOR r\nthe system. This does not mean that federal courts\nare without power to deal with future problems; but\nNo. 436. Argued Octab\nin the absence of a showing that either the school au-\nEast of the major highes\nthorities or some other agency of the State has delib-\nMobile, Ala., live 94% of\nerately attempted to fix or alter demographic patterns\nthere are 65% Negro w\nto affect the racial composition of the schools, further\nschools are 12% Negre\napproved 1 designegatis\nintervention by a district court should not be necessary.\nplan, insolar M the at\nFor the reasons herein set forth, the judgment of the\nsection as involved from $\nCourt of Appeals is affirmed as to those parts in which it\nand providing to tranque\naffirmed the judgment of the District Court. The order\nposes. Though name you\nWAS achieved for the BIR\nof the District Court, dated August 7, 1970, is also\nin the custern section (s\naffirmed.\nschool pupils in the starts\nIt is so ordered.\nover half of the Xegre you\nto all-Negro or\nI\nfaculty and staff notice\nCourt of Approle\nboard to\nwhole district.\n1. The Court of\nstaff ratio is\nof Education,\n2. The Court\nmetropolitan Makile\nand in not\ntechniques to\ngation. P.\n430 F. 2d SK3 and\nin part.\nBURGER. C.I. Internet\nJack Greenburg angth\nhim on the bride un\n2686\n93 SUPREME COURT REPORTER\n413 U.S. 122\nMr. Justice DOUGLAS would vacate\nin favor of defendants on all but ONE\nand remand for dismissal of the criminal\ncount of second claim, and at 313 F.\ncomplaint under which petitioner was\nSupp. 90, issued opinion on the remedy.\nfound guilty because \"obscenity\" as de-\nand defendants appealed, and plaintiffs\nfined by the California courts and by\ncross-appealed. The Court of Appeals.\nthis Court is too vague to satisfy the re-\n445 F.2d 990, affirmed in part, reversed\nquirements of due process. See Miller\nin part, and remanded, and certiorari\nV. California, 413 U.S. 15, at 37, 93 S.Ct.\nwas granted. The Supreme Court, Mr.\n2607, at 2622, 37 L.Ed.2d 419 (Douglas,\nJustice Brennan, held that finding of in-\nJ., dissenting).\ntentionally segregative school board ac-\ntions in meaningful portion of school\nMr. Justice BRENNAN, with whom\nsystem created prima facie case of un-\nMr. Justice STEWART and Mr. Justice\nlawful segregated design on part of\nMARSHALL join, dissenting.\nschool authorities, and shifted to those\nI would reverse the judgment of the\nauthorities the burden of proving that\nAppellate Department of the Superior\nother segregated schools within system\nCourt of California and remand the case\nwere not the result of intentionally seg-\nfor further proceedings not inconsistent\nregative actions even if it was deter-\nwith my dissenting opinion in Paris\nmined that different areas of school dis-\nAdult Theatre I V. Slaton, 413 U.S. 49, at\ntricts should be viewed independently of\n73, 93 S.Ct. 2628, at 2642, 37 L.Ed.2d\neach other.\n446. See my dissent in Miller V. Cali-\nModified and remanded to the Dis-\nfornia, 413 U.S. 15, at 47, 93 S.Ct. 2607,\ntrict Court.\nat 2627, 37 L.Ed.2d 419.\nMr. Justice Douglas filed separate\nopinion.\nKEY NUMBER SYSTEM\nMr. Chief Justice Burger concurred\nin the result.\n413 U.S. 189, 37 L.Ed.2d 548\nMr. Justice Powell filed opinion\nWilfred KEYES et al., Petitioners,\nconcurring in part and dissenting in\nV.\npart.\nSCHOOL DISTRICT NO. 1, DENVER,\nMr. Justice Rehnquist filed dissent-\nCOLORADO, et al.\ning opinion.\nNo. 71-507.\nMr. Justice White took no part in\nArgued Oct. 12, 1972.\ndecision of case.\nDecided June 21, 1973.\n1. Schools and School Districts @=13\nRehearing Denied Oct. 9, 1973.\nWhat is or is not a segregated\nSee 414 U.S. 883, 94 S.Ct. 27.\nschool depends on facts of particular\ncase. U.S.C.A.Const. Amend. 14.\nSuit wherein parents of children at-\ntending public schools sued individually,\n2. Schools and School Districts >13\nand on behalf of their minor children,\nIn addition to racial and ethnic\nand on behalf of class of persons simi-\ncomposition of school's student body,\nlarly situated, to remedy alleged segre-\nother factors to be considered in deter-\ngated condition of certain schools and\nmining whether school is segregated are\neffects of that condition. The United\nracial and ethnic composition of faculty\nStates District Court for the District of\nand staff, and community and adminis-\nColorado, 303 F.Supp. 279 granted a\ntration attitudes towards school. U.S.\npreliminary injunction, and at 303 F.\nC.A.Const. Amend. 14.\nSupp. 289 made supplemental findings,\n3. Schools and School Districts 0-13\nand at 313 F.Supp. 61, entered judgment\nFor purposes of defining a \"segre-\nin favor of plaintiffs on first claim, and\ngated\" school, Negroes and Hispanos\n413 U.S. 189 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2687\nCite as 93 S.Ct. 2686 (1973)\nmust be placed in same category. 9. Schools and School Districts -13\nConst.Colo. art. 9, § 8; U.S.C.A.Const.\nIn discharging burden of showing\nAmend. 14.\nthat segregated schooling is not result\nof intentionally segregative acts, school\n4. Schools and School Districts -13\nauthorities may not rely on some alleg-\nIn absence of showing that school\nedly logical, racially neutral explanation\ndistrict is divided into clearly unrelated\nfor their actions but must adduce proof\nunits, proof of state-imposed segregation\nsufficient to support finding that segre-\nin substantial portion of district will\ngative intent was not among factors that\nsuffice to support finding of existence\nmotivated their actions. U.S.G.A.Const.\nof dual school system and imposes on\nAmend. 14.\nschool authorities the affirmative duty\n10. Schools and School Districts -13\nto effectuate transition to racially non-\nIf actions of school authorities were\ndiscriminatory school system. Const.\nto any degree motivated by segregative\nColo. art. 9, § 8; U.S.C.A.Const. Amend.\nintent and segregation resulting from\n14.\nthose actions continues to exist, fact of\nremoteness in time does not make those\n5. Schools and School Districts -13\nFinding of intentional segregation\nactions any less intentional. U.S.C.A.\nConst. Amend. 14.\non part of school board in one portion of\nschool system is highly relevant to issue\n11. Schools and School Districts 13\nof board's intent with respect to other\nPrima facie case of existence of\nsegregated schools in system. Const.\ndual school system which arises from ev-\nColo. art. 9, § 8; U.S.C.A.Const. Amend.\nidence of school authorities' pursuit of\n14.\nintentional segregative policy in portion\nof school district may be met by evi-\n6. Schools and School Districts -13\ndence supporting finding that lesser de-\nFinding of intentionally segregative\ngree of segregated schooling would not\nschool board actions in meaningful por-\nhave resulted even if school authorities\ntion of school system created prima fa-\nhad not acted as they did. U.S.C.A.\ncie case of unlawful segregated design\nConst. Amend. 14.\non part of school authorities, and shifted\nto those authorities the burden of prov-\n12. Schools and School Districts -13\ning that other segregated schools within\nPlaintiffs in school desegregation\nsystem were not the result of intention-\ncase are not required to prove cause in\nally segregative actions even if it was\nsense of nonattenuation.\ndetermined that different areas of\n13. Schools and School Districts -13\nschool districts should be viewed inde-\nIf school board cannot disprove seg-\npendently of each other. Const.Colo.\nregative intent, it cannot rebut prima\nart. 9, § 8; U.S.C.A.Const. Amend. 14.\nfacie case arising from pursuit of segre-\ngative policy in portion of school district\n7. Schools and School Districts -13\nby showing that its past segregative\nDifferentiating factor between de\nacts did not create or contribute to cur-\njure segregation and so-called de facto\nrent segregated condition of schools.\nsegregation is purpose or intent to seg-\nU.S.C.A.Const. Amend. 14.\nregate. U.S.C.A.Const. Amend. 14.\n14. Schools and School Districts 13\n8. Schools and School Districts 141(5)\nWhere school authorities have prac-\nIn school system with history of\nticed de jure segregation in meaningful\nsegregation, discharge of disproportion-\nportion of school system by techniques\nately large number of Negro teachers in-\nindicating that \"neighborhood school\"\ncident to desegregation thrusts on school\nconcept has not been maintained free of\nboard the burden of justifying its con-\nmanipulation, assertion that \"neighbor-\nduct by clear and convincing evidence.\nhood school policy\" was racially neutral\n2688\n93 SUPREME COURT REPORTER\n413 U.S. 189\nwas not dispositive of claims asserted in\n(a) Proof that the school authori-\nschool desegregation case.\nties have pursued an intentional segre-\ngative policy in a substantial portion of\nSyllabus*\nthe school district will support a finding\nPetitioners sought desegregation of\nby the trial court of the existence of a\nthe Park Hill area schools in Denver\ndual system, absent a showing that the\nand, upon securing an order of the Dis-\ndistrict is divided into clearly unrelated\ntrict Court directing that relief, expand-\nunits. Pp. 2694-2695.\ned their suit to secure desegregation of\n(b) On remand the District Court\nthe remaining schools of the Denver\nshould decide initially whether respon-\nschool district, particularly those in the\ndent School Board's deliberately segre-\ncore city area. The District Court de-\ngative policy respecting the Park Hills\nnied the further relief, holding that the\nschools constitutes the whole Denver\ndeliberate racial segregation of the Park\nschool district a dual school system. Pp.\nHill schools did not prove a like segre-\n2695-2696.\ngation policy addressed specifically to\nthe core city schools and requiring peti-\n(c) Where, as in this case, a policy\ntioners to prove de jure segregation for\nof intentional segregation has been\neach area that they sought to have de-\nproved with respect to a significant por-\nsegregated. That court nevertheless\ntion of the school system, the burden is\nfound that the segregated core city\non the school authorities (regardless of\nschools were educationally inferior to\nclaims that their \"neighborhood school\n\"white\" schools elsewhere in the district\npolicy\" was racially neutral) to prove\nand, relying on Plessy V. Ferguson, 163\nthat their actions as to other segregated\nU.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, or-\nschools in the system were not likewise\ndered the respondents to provide sub-\nmotivated by a segregative intent. Pp.\nstantially equal facilities for those\n2697-2700.\nschools. This latter relief was reversed\nby the Court of Appeals, which affirmed\n10 Cir., 445 F.2d 990, modified and\nthe Park Hill ruling and agreed that\nremanded.\nPark Hill segregation, even though de-\nliberate, proved nothing regarding an\noverall policy of segregation. Held:\nJames M. Nabrit, III, New York City,\n1. The District Court, for purposes\nand Gorden C. Greiner, Denver, Colo.,\nof defining a \"segregated\" core city\nfor petitioners.\nschool, erred in not placing Negroes and\nHispanos in the same category since\nWilliam K. Ris, Denver, Colo., for re-\nboth groups suffer the same educational\nspondents:\ninequities when compared with the\ntreatment afforded Anglo students. Pp.\nMr. Justice BRENNAN delivered the [19:\n2691-2692.\nopinion of the Court.\n2. The courts below did not apply\nThis school desegregation case con-\nthe correct legal standard in dealing\ncerns the Denver, Colorado, school sys-\nwith petitioners' contention that re-\ntem. That system has never been oper-\nspondent School Board had the policy of\nated under a constitutional or statutory\ndeliberately segregating the core city\nprovision that mandated or permitted\nschools. Pp. 2692-2700.\nracial segregation in public education.¹\n*\nThe syllabus constitutes no part of the\n200 U.S. 321, 337, 26 S.Ct. 282, 287, 50\nopinion of the Court but has been pre-\nL.Ed. 499.\npared by the Reporter of Decisions for the\nconvenience of the reader. See United\n1. To the contrary, Art. IX, § 8, of the\nStates V. Detroit Timber & Lumber Co.,\nColorado Constitution expressly prohibits\nU.S. 193 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2689\nCite as 93 S.Ct. 2686 (1973)\nRather, the gravamen of this action, middle of the Negro community west of\nbrought in June 1969 in the District\nPark Hill, by the gerrymandering of\nCourt for the District of Colorado by\nstudent attendance zones, by the use of\nparents of Denver schoolchildren, is\nso-called \"optional zones,\" and by the ex-\nthat respondent School Board alone, by\ncessive use of mobile classroom units,\nuse of various techniques such as the\namong other things, the respondent\nmanipulation of student attendance\nSchool Board had engaged over almost a\nzones, schoolsite selection and a neigh-\ndecade after 1960 in an unconstitutional\nborhood school policy, created or main-\npolicy of deliberate racial segregation\ntained racially or ethnically (or both ra-\nwith respect to the Park Hill schools.3\ncially and ethnically) segregated schools\nThe court therefore ordered the Board\nthroughout the school district, entitling\nto desegregate those schools through the\npetitioners to a decree directing desegre-\nimplementation of the three rescinded\ngation of the entire school district.\nresolutions. D.C., 303 F.Supp. 279\nThe boundaries of the school district\nand 289 (1969).\nare coterminous with the boundaries of\nSegregation in Denver schools is not\nthe city and county of Denver. There\nlimited, however, to the schools in the\nwere in 1969, 119 schools 2 with 96,580\nPark Hill area, and not satisfied with\npupils in the school system. In early\ntheir success in obtaining relief for\n1969, the respondent School Board\nPark Hill, petitioners pressed their\nadopted three resolutions, Resolutions\nprayer that the District Court order de-\n1520, 1524, and 1531, designed to deseg-\nsegregation of all segregated schools in\nregate the schools in the Park Hill area\nthe city of Denver, particularly the\nin the northeast portion of the city.\nheavily segregated schools in the core\n193\nT wing an election which produced a\ncity area.⁴ But that court concluded\nbeard majority opposed to the resolu-\nthat its finding of a purposeful and sys-\ntions, the resolutions were rescinded and\ntematic program of racial segregation\nreplaced with a voluntary student trans-\naffecting thousands of students in the\nfer program. Petitioners then filed this\nPark Hill area did not, in itself, impose\naction, requesting an injunction against\non the School Board an affirmative duty\nthe rescission of the resolutions and an\nto eliminate segregation throughout the\norder directing that the respondent\nschool district. Instead, the court frac-\nSchool Board desegregate and afford\ntionated the district and held that peti-\nequal educational opportunity \"for the\ntioners had to make a fresh showing of de\nSchool District as a whole.\" App.\njure segregation in each area of the city\n32a. The District Court found that by\nfor which they sought relief. Moreover,\nthe construction of a new, relatively\nthe District Court held that its finding\nsmall elementary school, Barrett, in the\nof intentional segregation in Park Hill\nany \"classification of pupils\non\n3. The so-called \"Park Hill schools\" are\naccount of race or color.\" As early as\nBarrett, Stedman, Hallett, Smith, Philips,\n1927, the Colorado Supreme Court held\nand Park Hill Elementary Schools; and\nthat a Denver practice of excluding black\nSmiley Junior High School. East High\nstudents from school programs at Manual\nSchool serves the area but is located out-\nHigh School and Morey Junior High\nside of it. (See Appendix.)\nSchool violated state law. Jones V.\nNewlon, 81 Colo. 25, 253 P. 3S6.\n4. The so-called \"core city schools\" which\nare said to be segregated are Boulevard,\n2. There were 92 elementary schools, 15\nBryant-Webster, Columbine. Crofton,\njunior high schools, 2 junior-senior high\nEbert, Elmwood, Elyria, Fairmont, Fair-\nschools, and 7 senior high schools. In\nview, Garden Place, Gilpin. Greenlee,\naddition, the Board operates an Opportu-\nHarrington, Mitchell, Smedley. Swansea,\nnity School, a Metropolitan Youth Educa-\nWhittier, Wyatt, and Wyman Elementary\ntion Center, and an Aircraft Training\nSchools; Baker, Cole, and Morey Junior\n'ity.\nHigh Schools; and East, West. and Mau-\nual High Schools. (See Appendix.)\n93 S.Ct.-169\n2690\n93 SUPREME COURT REPORTER\n413 U.S. 193\nwas not in any sense material to the\nF.Supp. 90, 96 (1970). The District\nquestion of segregative intent in other\nCourt then formulated a varied remedial\nareas of the city. Under this restrictive\nplan to that end which was incorporated\napproach, the District Court concluded\nin the Final Decree.5\nthat petitioners' evidence of intentional-\nRespondent School Board appealed,\nly discriminatory School Board action in\nand petitioners cross-appealed, to the\nareas of the district other than Park\nCourt of Appeals for the Tenth Circuit.\nHill was insufficient to \"dictate the con-\nThat court sustained the District\nclusion that this is de jure segregation\nCourt's finding that the Board had en-\nwhich calls for an all-out effort to de-\ngaged in an unconstitutional policy of de-\nsegregate. It is more like de facto seg-\nliberate racial segregation with respect\nregation, with respect to which the rule\nto the Park Hill schools and affirmed the\nis that the court cannot order desegrega-\nFinal Decree in that respect. As to the\ntion in order to provide a better bal-\ncore city schools, however, the Court of\nance.\" D.C., 313 F.Supp. 61, 73 (1970).\nAppeals reversed the legal determination\nNevertheless, the District Court went\nof the District Court that those schools\n195\non to hold that the proofs established\nwere maintained in violation of the\nthat the segregated core city schools\nFourteenth Amendment because of the\nwere educationally inferior to the pre-\nunequal educational opportunity afford-\ndominantly \"white\" or \"Anglo\" schools\ned, and therefore set aside SO much of\nin other parts of the district-that is,\nthe Final Decree as required desegrega-\n\"separate facilities\nunequal in\ntion and educational improvement pro-\nthe quality of education provided.\" Id.,\ngrams for those schools. 445 F.2d 990\nat 83. Thus, the court held that, under\n(1971). In reaching that result, the\nthe doctrine of Plessy V. Ferguson, 163\nCourt of Appeals also disregarded re-\nU.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256\nspondent School Board's deliberate racial\n(1896), respondent School Board consti-\nsegregation policy respecting the Park\ntutionally \"must at a minimum\nHill schools and accepted the District\n194 offer an equal educational opportunity,\"\nCourt's finding that petitioners had not\n313 F.Supp., at 83, and, therefore, al-\nproved that respondent had a like policy\nthough all-out desegregation \"could not\naddressed specifically to the core city\nbe decreed,\nthe only feasible\nschools.\nand constitutionally acceptable program\nWe granted petitioners' petition for\n-the only program which furnishes any-\ncertiorari to review the Court of Ap-\nthing approaching substantial equality-\npeals' judgment insofar as it reversed\nis a system of desegregation and integra-\nthat part of the District Court's Final\ntion which provides compensatory educa-\nDecree as pertained to the core city\ntion in an integrated environment.\" 313\nschools. 404 U.S. 1036, 92 S.Ct. 707, 30\n5. The first of the District Court's four\nwere not included within the scope of the\nopinions, 303 F.Supp. 279, was filed\nthree 1969 Board resolutions. The Court\nJuly 31, 1969, and granted petitioners' ap-\nof Appeals filed five unreported opinions:\nplication for a preliminary injunction.\non August 5, 1969, vacating preliminary\nThe second opinion, 303 F.Supp. 289, was\ninjunctions; on August 27, 1969, staying\nfiled August 14, 1969, and made supple-\npreliminary injunction; on September 15,\nmental findings and conclusions. The\n1969, on motion to amend stay; on\nthird opinion, 313 F.Supp. 61, filed March\nOctober 17, 1969, denying motions to\n21, 1970, was the opinion on the merits.\ndismiss; and on March 26, 1971, grant-\nThe fourth opinion, 313 F.Supp. 90, was\ning stay. Mr. Justice Brennan, on August\non remedy and was filed May 21, 1970.\n29, 1969, filed an opinion reinstating the\nThe District Court filed an unreported\nprelimin ary injunction, 396 U.S. 1215, 90\nopinion on October 19, 1971, in which re-\nS.Ct. 12, 24 L.Ed.2d 37, and on April 26,\nlief was extended to Hallett and Sted-\n1971, this Court entered a per\nman Elementary Schools which were\ncuriam order vacating the Court of\nfound by the court in its July 31, 1969,\nAppeals' stay, 402 U.S. 182, 91 S.Ct.\nopinion to be purposefully segregated but\n1399, 28 L.Ed.2d 710.\n413 U.S. 197\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2691\nCite as 93 S.Ct. 2686 (1973)\nL.Ed.2d 728 (1972). The judgment of The District Court used those figures to\nthe Court of Appeals in that respect is\nsignify educationally inferior schools,\nmodified to vacate instead of reverse the\nand there is no suggestion in the record\nFinal Decree. The respondent School\nthat those same figures were or would be\nBoard has cross-petitioned for certiorari\nused to define a \"segregated\" school in\nto review the judgment of the Court of\nthe de jure context. What is or is not a\nAppeals insofar as it affirmed that part\nsegregated school will necessarily depend\nof the District Court's Final Decree as\non the facts of each particular case. In\npertained to the Park Hills schools.\naddition to the racial and ethnic compo-\nSchool District No. 1 V. Docket No. 71-\nsition of a school's student body, other\n572, Keyes. The cross-petition is denied.\nfactors, such as the racial and ethnic\ncomposition of faculty and staff and\nI\nthe community and administration atti-\ntudes toward the school, must be taken\n[1, 2] Before turning to the primary\ninto consideration. The District Court\nquestion we decide today, a word must\n95\nhas recognized these specific factors as\nbe said about the District Court's meth-\nelements of the definition of a \"segre-\nod of defining a \"segregated\" school.\ngated\" school, id., at 74, and we may\nDenver is a tri-ethnic, as distinguished\ntherefore infer that the court will con-\nfrom a bi-racial, community. The over-\nsider them again on remand.\nall racial and ethnic composition of the\nDenver public schools is 66 Anglo, 14%\n[3] We conclude, however, that the\n197\nNegro, and 20% Hispano.⁶ The Dis-\nDistrict Court erred in separating Ne-\ntrict Court in assessing the question of\ngroes and Hispanos for purposes of de-\n196 de jure segregation in the core city\nfining a \"segregated\" school. We have\nschools, preliminarily resolved that Ne-\nheld that Hispanos constitute an identi-\ngroes and Hispanos should not be placed\nfiable class for purposes of the Four-\nin the same category to establish the\nteenth Amendment. Hernandez V. Tex-\nsegregated character of a school. 313\nas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed.\nF.Supp., at 69. Later, in determining\n866 (1954). See also United States V.\nthe schools that were likely to produce\nTexas Education Agency, 467 F.2d 848\nan inferior educational opportunity, the\n(CA5 1972) (en banc) Cisneros V. Cor-\ncourt concluded that a school would be\npus Christi Independent School District,\n467 F.2d 142 (CA5 1972) (en banc)\nconsidered inferior only if it had \"a con-\nAlvarado V. El Paso Independent School\ncentration of either Negro or Hispano\nDistrict, 445 F.2d 1011 (CA5) 1971)\nstudents in the general area of 70 to 75\nSoria V. Oxnard School District, 328 F.\npercent.\" Id., at 77. We intimate no\nSupp. 155 (CD Cal.1971) ; Romero V.\nopinion whether the District Court's\nWeakley, 226 F.2d 399 (CA9 1955). In-\n70%-to-75% requirement was correct.\ndeed the District Court recognized this\n6. The parties have used the terms \"Anglo,\" \"Negro,\" and \"Hispano\" through-\nout the record. We shall therefore use those terms.\n\"Hispano\" is the term used by the Colorado Department of Education to refer\nto a person of Spanish, Mexican, or Cuban heritage. Colorado Department of\nEducation, Human Relations in Colorado, A Historical Record 203 (1968). In\nthe Southwest, the \"Hispanos\" are more commonly referred to as \"Chicanos\" or\n\"Mexican-Americans.\"\nThe more specific racial and ethnic composition of the Denver public schools\nis as follows:\nAnglo\nNegro\nHispano\nPupils\nNo.\n%\nNo.\n%\nNo.\n%\nElementary\n33,719\n61.8\n8,297\n15.2\n12,570\n23.0\nJunior High\n14,848\n68.7\n2,893\n13.4\n3,858\n17.9\nSenior High\n14,852\n72.8\n2,442\n12.0\n3,101\n15.2\nTotal\n63,419\n65.7\n13,632\n14.1\n19,529\n20.2\n2692\n93 SUPREME COURT REPORTER\n413 U.S. 197\nin classifying predominantly Hispano\ngal standard in addressing petitioners'\nschools as \"segregated\" schools in their\ncontention that respondent School Board\nown right. But there is also much evi-\nengaged in an unconstitutional policy of\ndence that in the Southwest Hispanos\ndeliberate segregation in the core city\nand Negroes have a great many things\nschools. Our conclusion is that those\nin common. The United States Com-\ncourts did not apply the correct standard\nmission on Civil Rights has recently\nin addressing that contention.9\npublished two Reports on Hispano edu-\ncation in the Southwest.⁷ Focusing on\nPetitioners apparently concede for the\nstudents in the States of Arizona, Cal-\npurposes of this case that in the case of\nifornia, Colorado, New Mexico, and Tex-\na school system like Denver's, where no\nas, the Commission concluded that His-\nstatutory dual system has ever existed,\npanos suffer from the same educational\nplaintiffs must prove not only that seg-\ninequities as Negroes and American In-\nregated schooling exists but also that it\ndians.⁸ In fact, the District Court it-\nwas brought about or maintained by in-\nself recognized that \"[o]ne of the things\ntentional state action. Petitioners\nwhich the Hispano has in common with\nproved that for almost a decade after\nthe Negro is economic and cultural dep-\n1960 respondent School Board had en-\ngaged in an unconstitutional policy of\n198 rivation I and discrimination.\" 313 F.\ndeliberate racial segregation in the Park\nSupp., at 69. This is agreement that,\nHill schools. Indeed, the District Court\nthough of different origins Negroes\nand Hispanos in Denver suffer identical\nfound that \"[b]etween 1960 and 1969\ndiscrimination in treatment when com-\nthe Board's policies|with respect to these\n199\nnortheast Denver schools show an unde-\npared with the treatment afforded An-\nglo students. In that circumstance, we\nviating purpose to isolate Negro stu-\nthink petitioners are entitled to have\ndents\" in segregated schools \"while pre-\nschools with a combined predominance\nserving the Anglo character of [other]\nof Negroes and Hispanos included in the\nschools.\" 303 F.Supp., at 294. This\nfinding did not relate to an insubstantial\ncategory of \"segregated\" schools.\nor trivial fragment of the school system.\nOn the contrary, respondent School\nII\nBoard was found guilty of following a\nIn our view, the only other question\ndeliberate segregation policy at schools\nthat requires our decision at this time is\nattended, in 1969, by 37.69% of Den-\nthat subsumed in Question 2 of the ques-\nver's total Negro school population, in-\ntions presented by petitioners, namely\ncluding one-fourth of the Negro elemen-\nwhether the District Court and the\ntary pupils, over two-thirds of the Ne-\nCourt of Appeals applied an incorrect le-\ngro junior high pupils, and over two-\n7. United States Commission on Civil\npublic education at a rate equal to that of\nRights, Mexican American Education\ntheir Auglo classmates.\"\nStudy, Report 1, Ethnic Isolation of Mex-\nican Americans in the Public Schools of\n9. Our Brother REHNQUIST argues in\nthe Southwest (Apr. 1971); United States\ndissent that the Court somehow trans-\nCommission on Civil Rights, Mexican\ngresses the \"two-court\" rule. Infra, at\nAmerican Educational Series, Report 2,\n2724. But at this stage, we have no\nThe Unfinished Education (October\noccasion to review the factual findings\n1971).\nconcurred in by the two courts below.\nCf. Neil V. Biggers, 409 U.S. 188, 93 S.Ct.\n8. The Commission's second Report, on p.\n375. 34 L.Ed.2d 401 (1972). We address\n41, summarizes its findings:\nonly the question whether those courts ap-\n\"The basic finding of this report is that\nplied the correct legal standard in de-\nminority students in the Southwest-\nciding the case as it affects the core city\nMexican Americans, blacks, American\nschools.\nFORD\nIndians-do not obtain the benefits of\nGERALD\nLIBRARY\n413 U.S. 200\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2693\nCite as 93 S.Ct. 2686 (1973)\nfifths of the Negro high school pupils.¹⁰\nplaintiffs prove that a current condition\n1200 In addition, there was uncontroverted\nof segregated schooling exists within a\nevidence that teachers and staff had for\nschool district where a dual system was\nyears been assigned on the basis of a\ncompelled or authorized by statute at the\nminority teacher to a minority school\ntime of our decision in Brown V. Board\nthroughout the school system. Respond-\nof Education, 347 U.S. 483, 74 S.Ct. 686,\nent argues, however, that a finding of\n98 L.Ed. 873 (1954) (Brown I), the\nstate-imposed segregation as to a sub-\nState automatically assumes an affirma-\nstantial portion of the school system can\ntive duty \"to effectuate a transition to a\nbe viewed in isolation from the rest of\nracially nondiscriminatory school sys-\nthe district, and that even if state-im-\ntem,\" Brown V. Board of Education, 349\nposed segregation does exist in a sub-\nU.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed.\nstantial part of the Denver school system,\n1083 (1955) (Brown II), see also\nit does not follow that the District Court\nGreen V. County School Board, 391 U.S.\ncould predicate on that fact a finding that\n430, 437-438, 88 S.Ct. 1689, 1693-1694,\nthe entire school system is a dual system.\n20 L.Ed.2d 716 (1968), that is, to elimi-\nWe do not agree. We have never sug-\nnate from the public schools within their\ngested that plaintiffs in school desegre-\nschool system \"all vestiges of state-im-\ngation cases must bear the burden of\nproving the elements of de jure segrega-\nposed segregation.\" Swann V. Char-\ntion as to each and every school or each\nlotte-Meckleburg Board of Education,\nand every student within the school sys-\n402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.\ntem. Rather, we have held that where\nEd.2d 554 (1971) 11\n10. The Board was found guilty of intentionally segregative acts of one kind or\nanother with respect to the schools listed below. (As to Cole and East, the con-\nclusion rests on the rescission of the resolutions.)\nPUPILS 1968-1969\nAnglo\nNegro\nHispano\nTotal\nBarrett\n1\n410\n12\n423\nStedman\n27\n634\n25\n686\nHallett\n76\n634\n41\n751\nPark Hill\n684\n223\n56\n963\nPhilips\n307\n203\n45\n555\nSmiley Jr. High\n360\n1,112\n74\n1,546\nCole Jr. High\n46\n884\n289\n1,219\nEast High\n1,409\n1,039\n175\n2,623\nSubtotal Elementary\n1,095\n2,104\n179\n3,378\nSubtotal Jr. High\n406\n1,996\n363\n2,765\nSubtotal Sr. High\n1,409\n1,039\n175\n2,623\nTotal\n2,910\n5,139\n717\n8,766\nThe total Negro school enrollment in 1968 was:\nElementary\n8,297\nJunior High\n2,893\nSenior High\n2,442\nThus, the above-mentioned schools included:\nElementary\n25.36% of all Negro elementary pupils\nJunior High\n68.99% of all Negro junior high pupils\nSenior High\n42.55% of all Negro senior high pupils\nTotal\n37.69% of all Negro pupils\n11. Our Brother REIINQUIST argues in\nintegrate\" the schools of a dual school\ndissent that Brown V. Board of Education\nsystem but was only a \"prohibition\ndid not impose an \"affirmative duty to\nagainst discrimination\" \"in the sense that\n2694\n93 SUPREME COURT REPORTER\n413 U.S. 201\n201\nThis is not a case, however, where a\nand this, in turn, together with the ele-\nstatutory dual system has ever existed.\nments of student assignment and school\nNevertheless, where plaintiffs prove\nconstruction, may have a profound recip-\nthat the school authorities have carried\nrocal effect on the racial composition of\nout a systematic program of segregation\nresidential neighborhoods within a met-\naffecting a substantial portion of the\nropolitan area, thereby causing further\nstudents, schools, teachers, and facilities\nracial concentration within the schools.\nwithin the school system, it is only com-\nWe recognized this in Swann when we\nmon sense to conclude that there exists a\nsaid:\npredicate for a finding of the existence\nof a dual school system. Several consid-\n\"They [school authorities] must de-\nerations support this conclusion. First,\ncide questions of location and capacity\nit is obvious that a practice of concen-\nin light of population growth, fi-\ntrating Negroes in certain schools by\nnances, land values, site availability,\nstructuring attendance zones or desig-\nthrough an almost endless list of fac-\ntors to be considered. The result of\nnating \"feeder\" schools on the basis of\nrace has the reciprocal effect of keeping\nthis will be a decision which, when\nother nearby schools predominantly\ncombined with one technique or anoth-\nwhite.12 Similarly, the practice of\ner of student assignment, will deter-\nbuilding a school-such as the Barrett\nmine the racial composition of the stu-\nElementary School in this case-to a\ndent body in each school in the sys-\ncertain size and in a certain location,\ntem. Over the long run, the conse-\n\"with conscious knowledge that it would\nquences of the choices will be far\n202 be a segregated school,\" 303 F.Supp., at\nreaching. People gravitate toward\n285, has a substantial reciprocal effect\nschool facilities, just as schools are lo-\non the racial composition of other near-\ncated in response to the needs of peo-\nby schools. So also, the use of mobile\nple. The location of schools may thus\nclassrooms, the drafting of student trans-\ninfluence the patterns of residential\nfer policies, the transportation of stu-\ndevelopment of a metropolitan area\ndents, and the assignment of faculty and\nand have important impact on compo-\nstaff, on racially identifiable bases, have\nsition of inner-city neighborhoods.\nthe clear effect of earmarking schools\n\"In the past, choices in this respect\naccording to their racial composition,\nhave been used as a potent weapon for\nthe assignment of a child to a particular\nL.Ed.2d 19 (1969) ; Swann V. Charlotte-\nschool is not made to depend on his race\nMecklenburg Board of Education, 402\n\"\nInfra, at 2722. That is the\nU.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.\ninterpretation of Brown expressed 18\n2d 554 (1971). See also Kelley V. Metro-\nyears ago by a three-judge court in Briggs\npolitan County Board of Education, 317\nV. Elliott, 132 F.Supp. 776, 777 (D.C.\nF.Supp. 980, 984 (D.C.1970).\n1955) : \"The Constitution, in other\nwords, does not require integration. It\n12. As a former School Board President\nmerely forbids discrimination.\" But\nwho testified for the respondents put it\nGreen V. County School Board, 391 U.S.\n\"Once you change the boundary of any\n430, 437-438, 88 S.Ct. 1689, 1694, 20 L.\none school, it is affecting all the schools\nEd.2d 716 (1968), rejected that interpre-\nTestimony of Mrs. Lois Heath\ntation insofar as Green expressly held\nJohnson on cross-examination. App.\nthat \"School boards\noperating state-\n951a-952a.\ncompelled dual systems were nevertheless\nSimilarly, Judge Wisdom has recently\nclearly charged [by Brown II] with the\nstated:\naffirmative duty to take whatever steps\n\"Infection at one school infects all\nmight be necessary to convert to a unitary\nschools. To take the most simple\nsystem in which racial discrimination\nexample, in a two school system, all\nwould be eliminated root and branch.\"\nblacks at one school means all or almost\nGreen remains the governing principle.\nall whites at the other.\" United States V.\nAlexander V. Holmes County Board of\nTexas Education Agency, 467 F.2d 848,\nEducation, 396 U.S. 19, 90 S.Ct. 29, 24\n888 (CA5 1972).\n413 U.S. 205 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2695\nCite as 93 S.Ct. 26S6 (1973)\ncreating or maintaining a state-segre-\ntive duty \"to effectuate a transition to a\ngated school system. In addition to\nracially nondiscriminatory school sys-\nthe classic pattern of building schools\ntem.\" Brown 11, supra, 394 U.S., at 301,\nspecifically intended for Negro or\n75 S.Ct. at 756.\nwhite students, school authorities have\nOn remand, therefore, the District 204\nsometimes, since Brown, closed schools\nCourt should decide in the first instance\n203\nwhich appeared likely to become ra-\nwhether respondent School Board's de-\ncially mixed through changes in\nliberate racial segregation policy with\nneighborhood residential patterns.\nrespect to the Park Hill schools consti-\nThis was sometimes accompanied by\ntutes the entire Denver school system a\nbuilding new schools in the areas of\ndual school system. We observe that on\nwhite suburban expansion farthest\nthe record now before us there is indica-\nfrom Negro population centers in or-\ntion that Denver is not a school district\nder to maintain the separation of the\nwhich might be divided into separate,\nraces with a minimum departure from\nidentifiable and unrelated units. The\nthe formal principles of 'neighborhood\nDistrict Court stated, in its summary of\nzoning.' Such a policy does more than\nfindings as to the Park Hill schools, that\nsimply influence the short-run compo-\nthere was \"a high degree of interrela-\nsition of the student body of a new\ntionship among these schools, SO that\nschool. It may well promote segregat-\nany action by the Board affecting the\ned residential patterns which, when\nracial composition of one would almost\ncombined with 'neighborhood zoning,'\ncertainly have an effect on the others.\"\nfurther lock the school system into the\n303 F.Supp., at 294. And there was co-\nmold of separation of the races. Upon\ngent evidence that the ultimate effect of\na proper showing a district court may\nthe Board's actions in Park Hill was not\nconsider this in fashioning a remedy.\"\nlimited to that area: the three 1969 res-\n402 U.S., at 20-21, 91 S.Ct. at 1278.\nolutions designed to desegregate the\n[4] In short, common sense dictates\nPark Hill schools changed the attend-\nthe conclusion that racially inspired\nance patterns of at least 29 schools at-\nschool board actions have an impact be-\ntended by almost one-third of the pupils\nyond the particular schools that are the\nin the Denver school system. 13 This\nsubjects of those actions. This is not to\nsuggests that the official segregation in\nsay, of course, that there can never\nPark Hill affected the racial composition\nbe a case in which the geographical struc-\nof schools throughout the district.\nture of, or the natural boundaries with-\nOn the other hand, although the Dis-\nin, a school district may have the ef-\ntrict Court did not state this, or indeed\nfect of dividing the district into sep-\nany, reason why the Park Hill finding\narate, identifiable and unrelated units.\nwas disregarded when attention was\nSuch a determination is essentially a\nturned to the core city schools-beyond\nquestion of fact to be resolved by the\nsaying that the Park Hill and core city\ntrial court in the first instance, but\nareas were in its view \"different\"-\nsuch cases must be rare. In the ab-\nthe areas, although adjacent to each\nsence of such a determination, proof of\nother, are separated by Colorado Boule-\nstate-imposed segregation in a substan-\nvard, a six-lane highway. From the\ntial portion of the district will suffice to\nrecord, it is difficult to assess the actual\nsupport a finding by the trial court of\nsignificance of Colorado Boulevard to\nthe existence of a dual system. Of\nthe Denver school system. The Boule-\ncourse, where that finding is made, as in\nvard runs the length of the school dis-\ncases involving statutory dual systems,\ntrict, but at least two elementary 205\nthe school authorities have an affirma-\nschools, Teller and Steck, have attend-\n13. See the chart in 445 F.2d, at 1008-1009,\nattended the schools affected by the resolu-\nwhich indicates that 31,767 pupils\ntions.\n2696\n93 SUPREME COURT REPORTER\n413 U.S. 205\nance zones which cross the Boulevard.\nIII\nMoreover, the District Court, although\nreferring to the Boulevard as \"a natural\nThe District Court proceeded on the\ndividing line,\" 303 F.Supp., at 282, did\npremise that the finding as to the Park\nnot feel constrained to limit its consid-\nHill schools was irrelevant to the consid-\neration of de jure segregation in the\neration of the rest of the district, and\nPark Hill area to those schools east of\nbegan its examination of the core city\nthe Boulevard. The court found that by\nschools by requiring that petitioners\nbuilding Barrett Elementary School west\nprove all of the essential elements of de\nof the Boulevard and by establishing\njure segregation-that is, stated simply,\nthe Boulevard as the eastern boundary\na current condition of segregation re-\nof the Barrett attendance zone, the\nsulting from intentional state action di-\n206\nBoard was able to maintain for a num-\nrected specifically to the core city\nber of years the Anglo character of\nschools. 14 The segregated character of\nthe Park Hill schools. This suggests\nthe core city schools could not be and\nthat Colorado Boulevard is not to be re-\nis not denied. Petitioners' proof showed\ngarded as the type of barrier that of it-\nthat at the time of trial 22 of the\nself could confine the impact of the\nschools in the core city area were less\nBoard's actions to an identifiable area\nthan 30% in Anglo enrollment and 11\nof the school district, perhaps because a\nof the schools were less than 10%\nmajor highway is generally not such an\nAnglo. 15 Petitioners also introduced\neffective buffer between adjoining\nsubstantial evidence demonstrating the\nareas. Cf. Davis V. Board of School\nexistence of a disproportionate racial\nCommissioners of Mobile County, 402\nand ethnic composition of faculty and\nU.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577,\nstaff at these schools.\n(1971). But this is a factual question\nOn the question of segregative intent,\nfor resolution by the District Court on\npetitioners presented evidence tending to\nremand. In any event, inquiry whether\nshow that the Board, through its actions\nthe District Court and the Court of Ap-\nover a period of years, intentionally cre-\npeals applied the correct legal standards\nated and maintained the segregated\nin addressing petitioners' contention of\ncharacter of the core city schools. Re-\ndeliberate segregation in the core city\nspondents countered this evidence by\nschools is not at an end even if it be true\narguing that the segregation in these\nthat Park Hill may be separated from the\nschools is the result of a racially neutral\n\"neighborhood school policy\" and that\nrest of the Denver school district as a\n207\nthe acts of which petitioners complain\nseparate, identifiable, and unrelated unit.\nare explicable within the bounds of that\n14. Our Brother REHNQUIST argues in\ndissent that the District Court did take\nthis opinion, we discussed the building of\nBarrett, boundary changes and the use of\nthe Park Hill finding into account in\nmobile units as they relate to the purpose\naddressing the question of alleged de jure\nfor the rescission of Resolutions 1520,\nsegregation of the core city schools.\n1524 and 1531.\" Obviously, the District\nInfra, at 2724. He cites the following\nCourt was carefully limiting the comment\nexcerpt from a footnote to the Dis-\nto the consideration being given past dis-\ntrict Court's opinion of March 21, 1970,\ncriminatory acts affecting the Park Hill\n313 F.Supp., at 74-75, n. 18: \"Although\nschools in assessing the causes of current\npast discriminatory acts may not be a\nsegregation of those schools.\nsubstantial factor contributing to present\nsegregation, they may nevertheless be\n15. In addition to these 22 schools, see 313\nprobative on the issue of the segregative\nF.Supp., at 78, two more schools, Elyria\npurpose of other discriminatory acts\nand Smedley Elementary Schools, became\nwhich are in fact a substantial factor in\nless than 30% Anglo after the District\ncausing a present segregated situation.\"\nCourt's decision on the merits. These two\nBut our, Brother REHNQUIST omits the\nschools were thus included in the list of\nrest of the footnote: \"Thus, in part I of\nsegregated schools. 313 F.Supp., at 92.\n13 U.S. 205\n413 U.S. 209 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2697\nCite as 93 S.Ct. 2686 (1973)\npolicy. Accepting the School Board's ex-\nples are equally as applicable to civil\nplanation, the District Court and the\ncases as to criminal cases\neded on the\nCourt of Appeals agreed that a finding\nId., at 300. See also C. McCormick, Evi-\nto the Park\nof de jure segregation as to the core city\ndence 329 (1954).\n) the consid-\nschools was not permissible since peti-\ndistrict, and\ntioners had failed to prove \"(1) a racial-\n[6, 7] Applying these principles in\nhe core city\nly discriminatory purpose and (2) a\nthe special context of school desegrega-\npetitioners\ncausal relationship between the acts\ntion cases, we hold that a finding of in-\nments of de\ncomplained of and the racial imbalance\ntentionally segregative school board ac-\ntated simply,\nadmittedly existing in those schools.\"\ntions in a meaningful portion of a school\nregation re-\n445 F.2d at 1006. This assessment of\nsystem, as in this case, creates a pre-\nte action1di-\n206\npetitioners' proof was clearly incorrect.\nsumption that other segregated school-\ncore city\ning within the system is not adventi-\ncharacter of\n[5] Although petitioners had already\ntious. It establishes, in other words, a\nnot be and\nproved the existence of intentional\nprima facie case of unlawful segregative\nproof showed\nschool segregation in the Park Hill\ndesign on the part of school authorities,\n22 of the\nschools, this crucial finding was totally\nand shifts to those authorities the bur-\nea were less\nignored when attention turned to the\nden of proving that other segregated\nment and 11\ncore city schools. Plainly, a finding of\nschools within the system are not also\nthan 10%\nintentional segregation as to a portion\nthe result of intentionally segregative\nintroduced\nof a school system is not devoid of pro-\nactions. This is true even if it is deter-\nistrating the\nbative value in assessing the school au-\nmined that different areas of the school\nionate racial\nthorities' intent with respect to other\ndistrict should be viewed independently\nfaculty and\nparts of the same school system. On the\nof each other because, even in that situ-\ncontrary where, as here, the case in-\nation, there is high probability that\nvolves one shcool board, a finding of in-\nwhere school authorities have effectuat-\ngative intent,\ntentional segregation on its part in one\ned an intentionally segregative policy in\nic\nuding to\nportion of a school system is highly rele-\na meaningful portion of the school sys-\ngh its actions\nvant to the issue of the board's intent\ntem, similar impermissible considera-\nentionally cre-\nwith respect to the other segregated\ntions have motivated their actions in\ne segregated\nschools in the system. This is merely\nother areas of the system. We empha-\nschools. Re-\nan application of the well-settled evi-\nsize that the differentiating factor be-\nevidence by\ndentiary principle that \"the prior doing\ntween de jure segregation and so-called\ntion in these\nof other similar acts, whether clearly\nde facto segregation to which we re-\nacially neutral\na part of a scheme or not, is useful\nferred in Swann 16 is purpose or intent\nand that\n207\nas reducing the possibility that the\nto segregate. Where school authorities\nners complain\nact in question was done with innocent\nhave been found to have practiced pur-\nounds of that\nintent.\" 2 J. Wigmore, Evidence 200 (3d\nposeful segregation in part of a school\ned. 1940). \"Evidence that similar and\nsystem, they may be expected to oppose\nhe building of\nrelated offenses were committed\nsystem-wide desegrégation, as did the\nand the use of\ntend[s] to show a consistent\nrespondents in this case, on the ground\no the purpose\npattern of conduct highly relevant to the\nthat their purposefully segregative ac-\nlutions 1520,\nissue of intent.\" Nye & Nissen V. Unit-\ntions were isolated and individual\nthe District\nthe comment\ned States, 336 U.S. 613, 618, 69 S.Ct.\nevents, thus leaving plaintiffs with the\niven past dis-\n766, 769, 93 L.Ed. 919 (1949). Similar-\nburden of proving otherwise. But at\nthe Park Hill\nly, a finding of illicit intent as to a\nthat point where an intentionally segre-\nses of current\nmeaningful portion of the item under\ngative policy is practiced in a meaning- 209\nconsideration has substantial probative\nful or significant segment of a school\nchools, see 313\nvalue on the question of illicit intent\nsystem, as in this case, the school au-\nschools, Elyria\n1208 as to the remainder. See, for example,\nthorities cannot be heard to argue that\nchools, became\nthe cases cited in 2 Wigmore, supra, at\nplaintiffs have proved only \"isolated and\nr the District\nts. These two\n301-302. And \"[t]he foregoing princi-\nindividual\" unlawfully segregative ac-\nin the list of\nSupn at 92.\n16. 402 U.S. 1, 17-18, 91 S.Ct. 1267, 1276-1277, 28 L.Ed.2d 554 (1971).\n93 S.Ct.-169½\n2698\n93 SUPREME COURT REPORTER\n413 U.S. 209\ntions. In that circumstance, it is both\n600, 621 (S.D.Tex.1969). Nor is this\nfair and reasonable to require that the\nburden-shifting principle limited to\nschool authorities bear the burden of\nformer statutory dual systems. See, e.\nshowing that their actions as to other\ng., Davis V. School District of City of\nsegregated schools within the system\nPontiac, 309 F.Supp. 734, 743, 744 (E.\nwere not also motivated by segregative\nD.Mich.1970), aff'd, 443 F.2d 573 (CA6\nintent.\n1971) United States V. School District\nNo. 151, 301 F.Supp. 201, 228 (N.D.III.\n[8] This burden-shifting principle is\n1969), modified on other grounds, 432\nnot new or novel. There are no hard-\nF.2d 1147 (CA7 1970). Indeed, to say\nand-fast standards governing the alloca-\nthat a system has a \"history of segrega-\ntion of the burden of proof in every sit-\ntion\" is merely to say that a pattern of\nuation. The issue, rather, \"is merely a\nintentional segregation has been estab-\nquestion of policy and fairness based on\nlished in the past. Thus, be it a statu-\nexperience in the different situations.\"\ntory dual system or an allegedly unitary\n9 J. Wigmore, Evidence § 2486, at 275\nsystem where a meaningful portion of the\n(3d ed. 1940). In the context of racial\nsystem is found to be intentionally segre-\nsegregation in public education, the\ngated, the existence of subsequent or\ncourts, including this Court, have recog-\nother segregated schooling within the\nnized a variety of situations in which\nsame system justifies a rule imposing on\n\"fairness\" and \"policy\" require state au-\nthe school authorities the burden of\nthorities to bear the burden of explaining\nproving that this segregated schooling is\nactions or conditions which appear to be\nnot also the result of intentionally segre-\nracially motivated. Thus, in Swann, 402\ngative acts.\nU.S., at 18, 91 S.Ct. at 1277, we ob-\nserved that in a system with a \"history\n[9, 10] In discharging that burden,\nof segregation,\" \"where it is possible to\nit is not enough, of course, that the\nidentify a 'white school' or a 'Negro\nschool authorities rely upon some alleg-\nschool' simply by reference to the racial\nedly logical, racially neutral explanation\ncomposition of teachers and staff, the\nfor their actions. Their burden is to ad-\nquality of school buildings and equip-\nduce proof sufficient to support a find-\nment, or the organization of sports activ-\ning that segregative intent was not\nities, a prima facie case of violation of\namong the factors that motivated their\nsubstantive constitutional rights under\nactions. The courts below attributed\nthe Equal Protection Clause is shown.\"\nmuch significance to the fact that many\nAgain, in a school system with a history\nof the Board's actions in the core city\nof segregation, the discharge of a dis-\narea antedated our decision in Brown.\nproportionately large number of Negro\nWe reject any suggestion that remote-\nteachers incident to desegregation\nness in time has any relevance to the is-\n\"thrust[s] upon the School Board the\nsue of intent. If the actions of school\nburden of justifying its conduct by clear\nauthorities were to any degree motivat-\nand convincing evidence.\" Chambers V.\ned by segregative intent and the segre-\nHendersonville City Board of Education,\ngation resulting from those actions con-\n364 F.2d 189, 192 (CA4 1966) (en\ntinues to exist, the fact of remoteness in [211\nbanc). See also United States V. Jeffer-\ntime certainly does not make those ac-\nson County Board of Education, 372 F.\ntions any less \"intentional.\"\n|210 2d 836, 887-888 (CA5 1966), aff'd en\nbanc, 380 F.2d 385 (1967) ; North Caro-\n[11-13] This is not to say, however,\nlina Teachers Assn. V. Asheboro City\nthat the prima facie case may not be\nBoard of Education, 393 F.2d 736,\nmet by evidence supporting a finding\n743 (CA4 1968) (en banc) ; Williams V.\nthat a lesser degree of segregated\nKimbrough, 295 F.Supp. 578, 585 (W.D.\nschooling in the core city area would not\nLa.1969) ; Bonner V. Texas City Inde-\nhave resulted even if the Board had not\npendent School District, 305 F.Supp.\nacted as it did. In Swann, we suggested\n413 U.S. 213 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2699\nCite as 93 S.Ct. 2656 (1973)\nthat at some point in time the relation-\nthe school authorities have been found\nship between past segregative acts and\nto have practiced de jure segregation in\npresent segregation may become so at-\na meaningful portion of the school sys-\ntenuated as to be incapable of support-\ntem by techniques that indicate that the\ning a finding of de jure segregation\n\"neighborhood school\" concept has not\nwarranting judicial intervention. 402\nbeen maintained free of manipulation.\nU.S. at 31-32, 91 S.Ct., at 1283-1284.\nOur observations in Swann, supra, at 28,\nSee also Hobson V. Hansen, 269 F.Supp.\n91 S.Ct., at 1882, are particularly in-\n401, 495 (D.C.1967), aff'd sub nom.\nstructive on this score:\nSmuck V. Hobson, 132 U.S.App.D. 372,\n\"Absent a constitutional violation\n408 F.2d 175 (1969).¹⁷ We made it\nthere would be no basis for judicially\nclear, however, that a connection be-\nordering assignment of students on a\ntween past segregative acts and present\nracial basis. All things being equal,\nsegregation may be present even when\nwith no history of discrimination, it\nnot apparent and that close examination\nmight well be desirable to assign pu-\nis required before concluding that the\npils to schools nearest their homes.\nconnection does not exist. Intentional\nBut all things are not equal in a sys-\nschool segregation in the past may have\ntem that has been deliberately con-\nbeen a factor in creating a natural envi-\nstructed and maintained to enforce ra-\nronment for the growth of further seg-\ncial segregation.\nregation. Thus, if respondent School\nBoard cannot disprove segregative in-\n'Racially neutral' assign-\ntent, it can rebut the prima facie case\nment plans proposed by school au-\nonly by showing that its past segrega-\nthorities to a district court may be\ntive acts did not create or contribute to\ninadequate; such plans may fail to\nthe current segregated condition of the\ncounteract the continuing effects of\npast school segregation resulting from\ncore city schools.\ndiscriminatory location of school sites\nor distortion of school size in order\n[14] The respondent School Board\ninvoked at trial its \"neighborhood school\nto achieve or maintain an artificial\npolicy\" as explaining racial and ethnic\nracial separation. When school au-\nconcentrations within the core city\nthorities present a district court\n212 schools, arguing that since the core city\nwith a 'loaded game board,' affirm-\native action in the form of reme-\narea population had long been Negro and\nHispano, the concentrations were neces-\ndial altering of attendance zones is\nsarily the result of residential patterns\nproper to achieve truly nondiscrimin-\natory assignments. In short, an as-\nand not of purposefully segregative poli-\nsignment plan is not acceptable simply\ncies. We have no occasion to consider in\nbecause it appears to be neutral.\"\nthis case whether a \"neighborhood\nThus, respondent School Board having\nschool policy\" of itself will justify racial\n213\nbeen found to have practiced deliberate\nor ethnic concentrations in the absence\nracial segregation in schools attended by\nof a finding that school authorities have\nover one-third of the Negro school popu-\ncommitted acts constituting de jure seg-\nlation, that crucial finding establishes a\nregation. It is enough that we hold that\nprima facie case of intentional segrega-\nthe mere assertion of such a policy is\ntion in the core city schools. In such\nnot dispositive where, as in this case,\ncase, respondent's neighborhood school\n17. It may be that the District Court and\nsense of \"non-attenuation.\" That is a\nCourt of Appeals were applying this test\nfactor which becomes relevant only after\nin holding that petitioners had failed to\npast intentional actions resulting in\nprove that the Board's actions \"caused\"\nsegregation have been established. At\nthe current condition of segregation in the\nthat stage. the burden becomes the school\ncore city schools. But, if so, certainly\nauthorities' to show that the current\nplaintiffs in a school desegregation case\nsegregation is in no way the result of\nare not required to prove \"cause\" in the\nthose past segregative actions.\n2700\n93 SUPREME COURT REPORTER\n413 U.S. 213\npolicy is not to be determinative \"simply\nschool\" concept, either were not taken in\nbecause it appears to be neutral.\"\neffectuation of a policy to create or\nmaintain segregation in the core city\nIV\nschools, or, if unsuccessful in that ef-\nfort, were not factors in causing the ex-\nIn summary, the District Court on re-\nisting condition of segregation in these\nmand, first, will afford respondent\nschools. Considerations of \"fairness\"\nSchool Board the opportunity to prove\nand \"policy\" demand no less in light of\nits contention that the Park Hill area is\nthe Board's intentionally segregative ac-\na separate, identifiable and unrelated\ntions. If respondent Board fails to re-\nsection of the school district that should\nbut petitioners' prima facie case, the\nbe treated as isolated from the rest of\nDistrict Court must, as in the case of\nthe district. If respondent School Board\nPark Hill, decree all-out desegregation of\nfails to prove that contention, the Dis-\nthe core city schools.\ntrict Court, second, will determine\nwhether respondent School Board's con-\nThe judgment of the Court of Appeals\nduct over almost a decade after 1960 in\nis modified to vacate instead of reverse\ncarrying out a policy of deliberate racial\nthe parts of the Final Decree that con-\nsegregation in the Park Hill schools con-\ncern the core city schools, and the case\nstitutes the entire school system a dual\nis remanded to the District Court for\nschool system. If the District Court de-\nfurther proceedings consistent with this\ntermines that the Denver school system\nopinion.¹\n18\nis a dual school system, respondent\nModified and remanded.\nSchool Board has the affirmative duty\nIt is SO ordered.\nto desegregate the entire system \"root\nand branch.\" Green V. County School\nMr. Chief Justice BURGER, concurs\nBoard, 391 U.S., at 438, 88 S.Ct. at\nin the result.\n1694. If the District Court deter-\nmines, however, that the Denver school\nMr. Justice WHITE took no part in\nsystem is not a dual school system by\nthe decision of this case.\nreason of the Board's actions in Park\nHill, the court, third, will afford respon-\nMr. Justice DOUGLAS.\ndent School Board the opportunity to re-\nbut petitioners' prima facie case of in-\nWhile I join the opinion of the Court,\ntentional segregation in the core city\nI agree with my Brother POWELL that\nschools raised by the finding of inten-\nthere is, for the purposes of the Equal [215\ntional segregation in the Park Hill\nProtection Clause of the Fourteenth\nschools. There, the Board's burden is to\nAmendment as applied to the school cas-\nshow that its policies and practices with\nes, no difference between de facto and\nrespect to schoolsite location, school\nde jure segregation. The school board\nsize, school renovations and additions,\nis a state agency and the lines that it\nstudent-attendance zones, student as-\ndraws, the locations it selects for school\nsignment and transfer options, mobile\nsites, the allocation it makes of students,\nclassroom units, transportation of stu-\nthe budgets it prepares are state action\n214 dents, assignment of faculty and staff,\nfor Fourteenth Amendment purposes.\netc., considered together and premised\nAs Judge Wisdom cogently stated in\non the Board's so-called \"neighborhood\nUnited States V. Texas Education Agen-\n18. We therefore do not reach, and intimate\ndecreed\nthe only feasible and\nno view upon, the merits of the holding\nconstitutionally acceptable program\nof the District Court, premised upon its\nis a system of desegregation and\nerroneous finding that the situation \"is\nintegration which provides compensatory\nmore like de facto segregation,\" 313 F.\neducation in an integrated environment.\"\nSupp., at 73, that nevertheless, although\nId., at 96.\nall-out desegregation \"could not be\n413 U.S. 217 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2701\nCite as 93 S.Ct. 2686 (1973)\ncy, 467 F.2d 848, segregated schools are\nthe constitutional sense because the\noften created, not by dual school systems\nforce of law is placed behind those cove-\ndecreed by the legislature, but by the\nnants.\nadministration of school districts by\nThere is state action in the constitu-\nschool boards. Each is state action\ntional sense when public funds are dis-\nwithin the meaning of the Fourteenth\npersed by urban development agencies to\nAmendment. \"Here school authorities\nbuild racial ghettoes.\nassigned students, faculty, and profes-\nsional staff; employed faculty and staff;\nWhere the school district is racially\nchose sites for schools; constructed new\nmixed and the races are segregated in\nschools and renovated old ones; and\nseparate schools, where black teachers\ndrew attendance zone lines. The natural\nare assigned almost exclusively to black\nand foreseeable consequence of these ac-\nschools where the school board closed ex-\ntions was segregation of Mexican-Ameri-\nisting schools located in fringe areas and\ncans. Affirmative action to the con-\nbuilt new schools in black areas and in\ntrary would have resulted in desegrega-\ndistant white areas, where the school\ntion. When school authorities, by their\nboard continued the \"neighborhood\"\nactions, contribute to segregation in ed-\nschool policy at the elementary level,\nucation, whether by causing additional\nthese actions constitute state action.\nsegregation or maintaining existing seg-\nThey are of a kind quite distinct from\nregation, they deny to the students equal\nthe classical de jure type of school seg-\nprotection of the laws.\nregation. Yet calling them de facto is a\nmisnomer, as they are only more subtle\n\"We need not define the quantity of\ntypes of state action that create or\nstate participation which is a prerequi-\nmaintain a wholly or partially segregat-\nsite to a finding of constitutional viola-\ned school system. See Kelly V. Guinn, 9\ntion. Like the legal concepts of 'the rea-\nCir., 456 F.2d 100.\nsonable man', 'due care', 'causation', 'pre-\nponderance of the evidence', and 'beyond\nWhen a State forces, aids, or abets, or\na reasonable doubt', the necessary de-\nhelps create a racial \"neighborhood,\" it\ngree of state involvement is incapable of\nis a travesty of justice to treat that\nprecise definition and must be defined\nneighborhood as sacrosanct in the sense\non a case-by-case basis. Suffice it to\nthat its creation is free from the taint\nsay that school authorities here played a\nof state action.\nsignificant role in causing or perpetu-\nThe Constitution and Bill of Rights\nating unequal educational opportunities\nhave described the design of a pluralis-\nfor Mexican-Americans, and did SO on a\ntic society. The individual has thefright\n1217\nsystem-wide basis.\" Id., at 863-864\nto seek such companions as he desires.\n1216 These latter acts are often said to cre-\nBut a State is barred from creating by\nate de facto as contrasted with de jure\none device or another ghettoes that deter-\nsegregation. But, as Judge Wisdom ob-\nmine the school one is compelled to at-\ntend.\nserves, each is but another form of de\njure segregation.\nMr. Justice POWELL concurring in\nI think it is time to state that there is\npart and dissenting in part.\nno constitutional difference between de\njure and de facto segregation, for each\nI concur in the remand of this case\nis the product of state actions or poli-\nfor further proceedings in the District\ncies. If a \"neighborhood\" or \"geograph-\nCourt, but on grounds that differ from\nical\" unit has been created along racial\nthose relied upon by the Court.\nlines by reason of the play of restrictive\nThis is the first school desegregation\ncovenants that restrict certain areas to\ncase to reach this Court which involves a\n\"the elite,\" leaving the \"undesirables\" to\nmajor city outside the South. It comes\nmove elsewhere, there is state action in\nfrom Denver, Colorado, a city and a\n2702\n93 SUPREME COURT REPORTER\n413 U.S. 217\nState which have not operated public\nwhere the Anglo population largely re-\nschools under constitutional or statutory\nsides, the schools are predominantly\nprovisions which mandated or permitted\nAnglo, if not entirely so.\nracial segregation.1 Nor has it been\nThe situation in Denver is generally\nargued that any other legislative actions\ncomparable to that in other large cities\n(such as zoning and housing laws) con-\nacross the country in which there is a\ntributed to the segregation which is at\nsubstantial minority population and\nissue.2 The Court has inquired only to\nwhere desegregation has not been or-\nwhat extent the Denver public school au-\ndered by the federal courts. There is\nthorities may have contributed to the\nsegregation in the schools of many of\nschool segregation which is acknowl-\nthese cities fully as pervasive as that in\nedged to exist in Denver.\nsouthern cities prior to the desegrega-\nThe predominantly minority schools\ntion decrees of the past decade and a\nare located in two areas of the city re-\nhalf. The focus of the school desegrega-\nferred to as Park Hill and the core city\ntion problem has now shifted from the\narea. The District Court considered\nSouth to the country as a whole. Un-\n[218 that a school with a concentration of\nwilling and footdragging as the process\n70% to 75% \"Negro or Hispano stu-\nwas in most places, substantial progress\ndents\" was identifiable as a segregated\ntoward achieving integration has been\nschool. 313 F.Supp. 61, 77. Wherever\nmade in Southern States.³ No compara-\none may draw this line, it is undisputed\nble progress has been made in many\nthat most of the schools in these two\nnonsouthern cities with large minority\nareas are in fact heavily segregated in\npopulations 4 primarily because of the de\nthe sense that their student bodies are\nfacto/de jure distinction nurtured by\n1219\noverwhelmingly composed of non-Anglo\nthe courts and accepted complacently by\nchildren. The city-wide school mix in\nmany of the same voices which de-\nDenver is 66% Anglo, 14% Negro, and\nnounced the evils of segregated schools\n20% Hispano. In areas of the city\nin the South.5 But if our national con-\n1. Article IX, § 8, of the Colorado Con-\n4. The 1971 HEW Enrollment Survey\nstitution has expressly prohibited any\ndramatized the segregated character of\n\"classification of pupils\non ac-\npublic school systems in many non-\ncount of race or color.\"\nsouthern cities. The percentage of Negro\npupils which attended schools more than\n2. See, e. g., Swann V. Charlotte-Mecklen-\n80% black was 91.3 in Cleveland, Ohio;\nburg Board of Education, 402 U.S. 1,\n97.8 in Compton, California; 78.1 in\n23, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554\nDayton, Ohio; 78.6 in Detroit, Michigan\n(1971) :\n95.7 in Gary, Indiana; 86.4 in Kansas\n\"We do not reach\nthe question\nCity, Missouri; 86.6 in Los Angeles, Cali-\nwhether a showing that school segregation\nfornia; 78.8 in Milwaukee, Wisconsin\nis a consequence of other types of state\n91.3 in Newark, New Jersey; 89.8 in St.\naction, without any discriminatory action\nLouis, Missouri. The full data from the\nby the school authorities, is a constitu-\nEnrollment Survey may be found in 118\ntional violation requiring remedial action\nCong.Rec. 563-566 (1972).\nby a school desegregation decree.\" The\nterm \"state action,\" as used herein, thus\n5. As Senator Ribicoff recognized:\nrefers to actions of the appropriate public\n\"For years we have fought the battle of\nschool authorities.\nintegration primarily in the South where\nthe problem was severe. It was a long,\n3. According to the 1971 Department of\nHealth, Education, and Welfare (HEW)\narduous fight that deserved to be fought\nestimate, 43.9% of Negro pupils attended\nand needed to be won.\nmajority white schools in the South as\n\"Unfortunately, as the problem of racial\nopposed to only 27.8% who attended such\nisolation has moved north of the Mason-\nschools in the North and West. Fifty-\nDixon line, many northerners have bid an\nseven percent of all Negro pupils in the\nevasive farewell to the 100-year struggle\nNorth and West attend schools with over\nfor racial equality. Our motto seems to\n80% minority population as opposed to\n32.2% who do so in the South. 118 Cong.\nRec. 564 (1972).\n413 U.S. 221\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2703\nCite as 93 S.Ct. 2686 (1973)\ncern is for those who attend such\nessentially negative: It was impermissi-\nschools, rather than for perpetuating a\nble under the Constitution for the\nlegalism rooted in history rather than\nStates, or their instrumentalities to\npresent reality, we must recognize that\nforce children to attend segregated\nthe evil of operating separate schools is\nschools. The forbidden action was de\nno less in Denver than in Atlanta.\njure, and the opinion in Brown I was\nconstrued-for some years and by many\nI\ncourts-as requiring only state neutrali-\nIn my view we should abandon a dis-\nty, allowing \"freedom of choice\" as to\ntinction which long since has outlived its\nschools to be attended SO long as the\ntime, and formulate constitutional prin-\nState itself assured that the choice was\nciples of national rather than merely re-\ngenuinely free of official restraint.⁶\ngional application. When Brown V.\nBut the doctrine of Brown I, as ampli-\nBoard of Education, 347 U.S. 483, 74 S.\nfied by Brown II, 349 U.S. 294, 75 S.Ct.\nCt. 686, 98 L.Ed. 873 (1954) (Brown I),\n753, 99 L.Ed. 1083 (1955), did not re-\n220 was decided, the distinction between de\ntain its original meaning. In a series of\njure and de facto segregation was con-\ndecisions extending from 1954 to 1971\nsistent with the limited constitutional\nthe concept of state neutrality was 221\nrationale of that case. The situation\ntransformed into the present constitu-\nconfronting the Court, largely confined\ntional doctrine requiring affirmative\nto the Southern States, was officially im-\nstate action to desegregate school sys-\nposed racial segregation in the schools\ntems.⁷ The keystone case was Green\nextending back for many years and usu-\nV. County School Board, 391 U.S. 430,\nally embodied in constitutional and stat-\n437-438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d\nutory provisions.\n716 (1968), where school boards were de-\nThe great contribution of Brown I\nclared to have \"the affirmative duty to\nwas its holding in unmistakable terms\ntake whatever steps might be necessary\nthat the Fourteenth Amendment forbids\nto convert to a unitary system in which\nstate-compelled or state-authorized seg-\nracial discrimination would be eliminat-\nregation of public schools. 347 U.S., at\ned root and branch.\" The school system\n488, 493-495, 74 S.Ct. at 688, 691-692.\nbefore the Court in Green was operating\nAlthough some of the language was more\nin a rural and sparsely settled county\nexpansive, the holding in Brown I was\nwhere there were no concentrations of\nhave been 'Do to southerners what you\ntion is not against segregation as such.\ndo not want to do to yourself.'\nA state or a school district offends\n\"Good reasons have always been offered,\nno constitutional requirement when it\nof course, for not moving vigorously ahead\ngrants to all students uniformly an unre-\nin the North as well as the South.\nstricted freedom of choice as to schools\n\"First, it was that the problem was\nattended, SO that each pupil, in effect, as-\nworse in the South. Then the facts began\nsigns himself to the school he wishes to\nto show that that was no longer true.\nattend.\" The case was later vacated\n\"We then began to hear the de facto-de\nand remanded by this Court, which ex-\njure refrain.\npressed no view on the merits of the de-\n\"Somehow residential segregation in the\nsegregation plans submitted. 382 U.S.\nNorth was accidental or de facto and that\n103, 105, 86 S.Ct. 224, 225, 15 L.Ed.2d\nmade it better than the legally supported\n187 (1965). See also Bell V. School City\nde jure segregation of the South. It was\nof Gary, Ind., 324 F.2d 209 (CA7 1963) ;\na hard distinction for black children in\nDowns V. Board of Education, 336 F.2d\ntotally segregated schools in the North to\n988 (CA10 1964); Deal V. Cincinnati\nunderstand, but it allowed us to avoid the\nBoard of Education, 369 F.2d 55 (CA6\nproblem.\" 118 Cong.Rec. 5455 (1972).\n1966).\n6. See, e. g., Bradley V. School Board, 345\n7. For a concise history and commentary on\nF.2d 310, 316 (CA4, 1965) (en banc) :\nthe evolution, see generally A. Bickel,\n\"It has been held again and again\nThe Supreme Court and the Idea of\nthat the Fourteenth Amendment prohibi-\nProgress 126-130 (1970).\n2704\n93 SUPREME COURT REPORTER\n413 U.S. 221\nwhite and black populations, no neigh-\nDespite this recognition of a fundamen-\nborhood school system (there were only\ntally different problem from that in-\ntwo schools in the county), and none of\nvolved in Green, the Court nevertheless\nthe problems of an urbanized school\nheld that the affirmative-duty rule of\ndistrict.8 The Court properly identified\nGreen was applicable, and prescribed for\nthe freedom-of-choice program there as\na metropolitan school system with 107\na subterfuge, and the language in Green\nschools and some 84,000 pupils essential-\nimposing an affirmative duty to convert\nly the same remedy-elimination of seg-\nto a unitary system was appropriate on\nregation \"root and branch\"-which had\nthe facts before the Court. There was\nbeen formulated for the two schools and\nhowever reason to question to what ex-\n1,300 pupils of New Kent County.\ntent this duty would apply in the vastly\ndifferent factual setting of a large city\nIn Swann, the Court further noted it\nwith extensive areas of residential seg-\nwas concerned only with States having\nregation, presenting problems and call-\n\"a long history of officially imposed\ning for solutions quite different from\nsegregation and the duty of school au-\nthose in the rural setting of New Kent\nthorities in those States to implement\nCounty, Virginia.\nBrown 1. 402 U.S., at 5-6, 91 S.Ct., at\n1271. In SO doing, the Court refrained\nBut the doubt as to whether the af-\nfrom even considering whether the evo-\nfirmative-duty concept would flower into\nlution of constitutional doctrine from\na new constitutional principle of general\nBrown I to Green/Swann undercut\napplication was laid to rest by Swann V.\nwhatever logic once supported the de\nCharlotte-Mecklenburg Board of Educa-\nfacto/de jure distinction. In imposing\ntión, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.\non metropolitan southern school districts\n2d 554 (1971), in which the duty artic-\n222 ulated in Green was applied to thefurban\nan affirmative duty, entailing large-\nscale transportation of pupils, to elimi-\nschool system of metropolitan Charlotte,\nNorth Carolina. In describing the resi-\nnate segregation in the schools, the\nCourt required these districts to alle-\ndential patterns in Charlotte, the Court\nnoted the \"familiar phenomenon\" in the\nviate conditions which in large part did\nmetropolitan areas of minority groups\nnot result from historic, state-imposed\nbeing \"concentrated in one part of the\nde jure segregation. Rather, the famil-\ncity,\" 402 U.S., at 25, 91 S.Ct., at 1280,\niar root cause of segregated schools in\nand acknowledged that:\nall the biracial metropolitan areas of our\ncountry is essentially the same: one of\n[223\n\"Rural areas accustomed for half a\nsegregated residential and migratory\ncentury to the consolidated school sys-\npatterns the impact of which on the ra-\ntems implemented by bus transporta-\ncial composition of the schools was often\ntion could make adjustments more\nperpetuated and rarely ameliorated by\nreadily than metropolitan areas with\naction of public school authorities. This\ndense and shifting population, numer-\nis a national, not a southern, phenome-\nous schools, congested and complex\nnon. And it is largely unrelated to\ntraffic patterns.\" 402 U.S., at 14, 91\nwhether a particular State had or did\nS.Ct., at 1275.\nnot have segregative school laws.9\n8. See also the companion cases in Raney\n\"No elaborate analysis is necessary to\nV. Board of Education, 391 U.S. 443, 88\nconclude from these figures that a high\nS.Ct. 1697, 20 L.Ed.2d 727 (1968), and\ndegree of residential segregation based on\nMonroe v. Board of Commissioners, 391\nrace is a universal characteristic of Amer-\nU.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733\nican cities. This segregation is found in\n(1968), neither of which involved large\nthe cities of the North and West as well\nurban or metropolitan areas.\nas of the South; in large cities as well as\nsmall in nonindustrial cities as well as\n9. As Dr. Karl Taeuber states in his article,\nindustrial; in cities with hundreds of\nResidential Segregation, 213 Scientific\nthousands of Negro residents as well as\nAmerican 12, 14 (Aug. 1965) :\nthose with only a few thousand, and in\n413\nU.S. 225 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2705\nCite as 93 S.Ct. 2686 (1973)\nWhereas Brown I rightly decreed the the duly constituted public authorities (I\nelimination of state-imposed segregation\nwill usually refer to them collectively as\nin that particular section of the country\nthe \"school board\") are sufficiently\nwhere it did exist, Swann imposed obli-\nresponsible 10 to warrant imposing upon\ngations on southern school districts to\nthem a nationally applicable burden to\neliminate conditions which are not re-\ndemonstrate they nevertheless are oper-\ngionally unique but are similar both in\nating a genuinely integregated school\norigin and effect to conditions in the\nsystem.\nrest of the country. As the remedial ob-\nligations of Swann extend far beyond\nA\nthe elimination of the outgrowths of the\nstate-imposed segregation outlawed in\nThe principal reason for abandon-\nBrown, the rationale of Swann points in-\nment of the de jure/de facto distinction\nevitably toward a uniform, constitution-\nis that, in view of the evolution of the\nal approach to our national problem of\nholding in Brown I into the affirmative-\nschool segregation.\nduty doctrine, the distinction no longer\ncan be justified on a principled basis.\nIn decreeing remedial requirements for\nII\nthe Charlotte/Mecklenburg school dis-\nThe Court's decision today, while ad-\ntrict, Swann dealt with a metropolitan,\nhering to the de jure/de facto distinc-\nurbanized area in which the basicicauses\n225\n1224 tion, will require the application of the\nof segregation were generally similar to\nGreen/Swann doctrine of \"affirmative\nthose in all sections of the country, and\nduty\" to the Denver School Board de-\nalso largely irrelevant to the existence of\nspite the absence of any history of\nhistoric, state-imposed segregation at\nstate-mandated school segregation. The\nthe time of the Brown decision. Fur-\nonly evidence of a constitutional viola-\nther, the extension of the affirmative-\ntion was found in various decisions of\nduty concept to include compulsory stu-\nthe School Board. I concur in the\ndent transportation went well beyond\nCourt's position that the public school\nthe mere remedying of that portion of\nauthorities are the responsible agency of\nschool segregation for which former\nthe State, and that if the affirmative-\nstate segregation laws were ever respon-\nduty doctrine is sound constitutional law\nsible. Moreover, as the Court's opinion\nfor Charlotte, it is equally so for Den-\ntoday abundantly demonstrates, the\nver. I would not, however, perpetuate\nfacts deemed necessary to establish de\nthe de jure/de facto distinction nor\njure discrimination present problems of\nwould I leave to petitioners the initial\nsubjective intent which the courts can-\ntortuous effort of identifying \"segrega-\nnot fairly resolve.\ntive acts\" and deducing \"segregative in-\nAt the outset, one must try to identify\ntent.\" I would hold, quite simply, that\nthe constitutional right which is being\nwhere segregated public schools exist\nenforced. This is not easy, as the\nwithin a school district to a substantial\nprecedents have been far from explicit.\ndegree, there is a prima facie case that\nIn Brown I, after emphasizing the im-\ncities that are progressive in their em-\na substantial degree in the schools of a\nployment practices and civil rights poli-\nparticular district. It is recognized, of\ncies as well as those that are not.\"\ncourse, that this term is relative and pro-\nIn his book, Negroes in Cities (1965), Dr.\nvides no precise standards. But circum-\nTaeuber stated that residential segrega-\nstances, demographic and otherwise, vary\ntion exists \"regardless of the character\nfrom district to district and hard-and-fast\nof local laws and policies, and regardless\nrules should not be formulated. The\nof the extent of other forms of segrega-\nexistence of a substantial percentage of\ntion or discrimination.\" Id., at 36.\nschools populated by students from one\n10. A prima facie case of constitutional vio-\nrace only or predominantly so populated,\nlation exists when segregation is found to\nshould trigger the inquiry.\n93 S.Ct.-170\n2706\n93 SUPREME COURT REPORTER\n413 U.S. 225\nportance of education, the Court said\nstitutional standards if the responsible\nthat:\nauthorities had taken appropriate steps\n\"Such an opportunity, where the state\nto (i) integrate faculties and adminis-\nhas undertaken to provide it, is a\ntration; (ii) scrupulously assure equali-\nright which must be made available to\nty of facilities, instruction, and curricu-\nall on equal terms.\" 347 U.S., at 493,\nlum opportunities throughout the dis-\n74 S.Ct. at 691.\ntrict; (iii) utilize their authority to\ndraw attendance zones to promote inte-\nIn Brown II, the Court identified the\ngration; and (iv) locate new schools,\n\"fundamental principle\" enunciated in\nclose old ones, and determine the size\nBrown I as being the unconstitutionality\nand grade categories with this same ob-\nof \"racial discrimination in public edu-\njective in mind. Where school authori-\ncation,\" 349 U.S., at 298, 75 S.Ct., at 755,\nties decide to undertake the transporta-\nand spoke of \"the personal interest of\ntion of students, this also must be with\nthe plaintiffs in admission to public\nintegrative opportunities in mind.\nschools as soon as practicable on a non-\nThe foregoing prescription is not in-\ndiscriminatory basis.\" 349 U.S., at 300,\ntended to be either definitive or all-in-\n75 S.Ct., at 756. Although this and simi-\nclusive, but rather an indication of the\nlar language is ambiguous as to the spe-\ncontour characteristics of an integrated\ncific constitutional right, it means-as a\nschool system in which all citizens and\nminimum-that one has the right not to\npupils may justifiably be confident that\nbe compelled by state action to attend a\nracial discrimination is neither practiced\nsegregated school system. In the evolu-\nnor tolerated. An integrated school sys-\ntionary process since 1954, decisions of\ntem does not mean-and indeed could\nthis Court have added a significant gloss\n227\nnot mean in view of the residential pat-\nto this original right. Although no-\nterns of most of our major metropolitan\nwhere expressly articulated in these\nareas-that every school must in fact be\nterms, I would now define it as the\nan integrated unit. A school which hap-\nright, derived from the Equal Protection\npens to be all or predominantly white\nClause to expect that once the State has\nor all or predominantly black is not a\n226 assumed responsibility for education, lo-\n\"segregated\" school in an unconstitu-\ncal school boards will operate integrated\ntional sense if the system itself is a gen-\nschool systems within their respective\nuinely integrated one.\ndistricts. 11 This means that school au-\nthorities, consistent with the generally\nHaving school boards operate an inte-\naccepted educational goal of attaining\ngrated school system provides the best\nquality education for all pupils, must\nassurance of meeting the constitutional\nmake and implement their customary de-\nrequirement that racial discrimination,\ncisions with a view toward enhancing in-\nsubtle or otherwise, will find no place in\ntegrated school opportunities.\nthe decisions of public school officials.\nCourts judging past school board actions\nThe term \"integrated school system\"\nwith a view to their general integrative\npresupposes, of course, a total absence\neffect will be best able to assure an ab-\nof any laws, regulations, or policies sup-\nsence of such discrimination while\nportive of the type of \"legalized\" segre-\navoiding the murky, subjective judg-\ngation condemned in Brown. A system\nments inherent in the Court's search for\nwould be integrated in accord with con-\n\"segregative intent.\" Any test resting\n11. See discussion in Part III, infra, of the\noperate an integrated school system before\nremedial action which is appropriate to\na court may order desegregative steps by\naccomplish desegregation where a court\nway of remedy. These are two distinct\nfinds that a school board has failed to\nsteps which recognize the necessity of\noperate an integrated school system with-\nproving the constitutional violation before\nin its district. Plaintiffs must, however,\ndesegregative remedial action can be\nestablish the failure of a school board to\nordered.\n413 U.S. 229 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2707\nCite as 93 S.Ct. 2686 (1973)\non so nebulous and elusive an element as\native duty to desegregate solely in those\na school board's segregative \"intent\"\nStates with state-imposed segregation at\nprovides inadequate assurance that mi-\nthe time of the Brown decision. The\nnority children will not be short-changed\nhistory of state-imposed segregation is\nin the decisions of those entrusted with\nmore widespread in our country than the\nthe nondiscriminatory operation of our\nde jure/de facto distinction has tradi-\npublic schools.\ntionally cared to recognize. 12 As one\ncommentator has noted:\nPublic schools are creatures of the\n\"[T]he three court of appeals deci-\nState, and whether the segregation is\nsions denying a constitutional duty to\nstate-created or state-assisted or merely\nabolish de facto segregation all arose\nstate-perpetuated should be irrelevant to\nin cities-Cincinnati, Gary, and Kan-\nconstitutional principle. The school\nsas City, Kansas-where racial segre-\nboard exercises pervasive and continuing\ngation in schools was formerly man-\nresponsibility over the long-range plan-\ndated by state or local law. [Deal V.\nning as well as the daily operations of\nCincinnati Board of Education, 369 F.\nthe public school system. It sets policies\n2d 55 (CA6 1966), cert. denied, 389\non attendance zones, faculty employment\nU.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114\nand assignments, school construction,\n(1967) Downs V. Board of Education,\nclosings and consolidations, and myriad\n336 F.2d 988 (CA10 1964), cert. de-\nother matters. School board decisions\nnied, 380 U.S. 914, 85 S.Ct. 898, 13 L.\nobviously are not the sole cause of segre-\nEd.2d 800 (1965) ; Bell v. School City\ngated school conditions. But if, after\nof Gary, Ind., 324 F.2d 209 (CA7\nsuch detailed and complete public super-\n1963), cert. denied, 377 U.S. 924, 84\nvision, substantial school segregation\nS.Ct. 1223, 12 L.Ed.2d 216 (1964).]\nstill persists, the presumption is strong\nOhio discarded its statute in 1887, In-\nthat the school board, by its acts or\ndiana in 1949, and Kansas City not\nomissions, is in some part responsible.\nuntil the advent of Brown. If Negro\nWhere state action and supervision are\nand white parents in Mississippi are\n229\n228 so pervasive and where, after years of\nrequired to bus their children to dis-\nsuch action, segregated schools continue\ntant schools on the theory that the\nto exist within the district to a substan-\nconsequences of past de jure segrega-\ntial degree, this Court is justified in\ntion cannot otherwise be dissipated,\nfinding a prima facie case of a constitu-\nshould not the same reasoning apply\ntional violation. The burden then must\nin Gary, Indiana, where no more than\nfall on the school board to demonstrate\nfive years before Brown the same\nit is operating an \"integrated school sys-\npractice existed with presumably the\ntem.\"\nsame effects?\" Goodman, De Facto\nSchool Segregation: A Constitutional\nIt makes little sense to find prima fa-\nand Empirical Analysis, 60 Calif.L.\ncie violations and the consequent affirm-\nRev. 275, 297 (1972). 13\n12. Indeed, if one goes back far enough, it\nnonexhaustive research that no discrim-\nis probable that all racial segregation,\ninatory laws appeared on the books\nwherever occurring and whether or not\nat one time or another.\" Id. at 1315.\nconfined to the schools, has at some time\nbeen supported or maintained by govern-\n13. The author continues:\nment action. In Beckett V. School Board,\n\"True, the earlier the policy of segrega-\n308 F.Supp. 1274, 1311-1315 (ED Va.\ntion was abandoned the less danger there\n1969), Judge Hoffman compiled a sum-\nis that it continues to operate covertly, is\nmary of past public segregative action\nsignificantly responsible for present day\nwhich included examples from a great\npatterns of residential segregation, or has\nmajority of States. He concluded that\ncontributed materially to present com-\n\"[o]nly as to the states of Maine, New\nmunity attitudes toward Negro schools.\nHampshire, Vermont, Washington, Neva-\nBut there is no reason to suppose that\nda, and Hawaii does it appear from this\n1954 is a universally appropriate dividing\n2708\n93 SUPREME COURT REPORTER\n413 U.S. 229\nNot only does the de jure/de facto\nBoard of Education, 380 F.2d 385, 397\ndistinction operate inequitably on com-\n(CA5 1967) (Gewin, J., dissenting). 14\nmunities in different sections of the\nThe Court today does move for the\ncountry, more importantly, it disadvan-\ntages minority children as well. As the\nfirst time toward breaking down past\nFifth Circuit stated:\nsectional disparities, but it clings ten-\nuously to its distinction. It searches for\n\"The Negro children in Cleveland,\nde jure action in what the Denver\nChicago, Los Angeles, Boston, New\nSchool Board has done or failed to do,\nYork, or any other area of the nation\nand even here the Court does not rely\nwhich the opinion classifies under de\nupon the results or effects of the\nfacto segregation, would receive little\nBoard's conduct but feels compelled to\ncomfort from the assertion that the\nfind segregative intent: 15\nracial make-up of their school system\ndoes not violate their constitutional\n\"We emphasize that the differentiat-\nrights because they were born into a\ning factor between de jure segrega-\nde facto society, while the exact same\ntion and so-called de factofsegregation\n231\nracial make-up of the school system in\nto which we referred in Swann is pur-\nthe 17 Southern and border states vio-\npose or intent to segregate.\" Supra,\n|230\nlates the constitutional rights of their\nat 2697 (emphasis is the Court's).\ncounterparts, or even their blood\nThe Court's insistence that the \"dif-\nbrothers, because they were born into\nferentiating factor\" between de jure and\na de jure society. All children every-\nde facto segregation be \"purpose or in-\nwhere in the nation are protected by\ntent\" is difficult to reconcile with the\nthe Constitution, and treatment which\nlanguage in SO recent a case as Wright\nviolates their constitutional rights in\nV. Council of City of Emporia, 407 U.S.\none area of the country, also violates\n451, 92 S.Ct. 2196, 33 L.Ed.2d 51\nsuch constitutional rights in another\n(1972). In holding there that \"motiva-\narea.\" Cisneros V. Corpus Christi In-\ntion\" is irrelevant, the Court said:\ndependent School District, 467 F.2d\n\"In addition, an inquiry into the 'dom-\n142, 148 (CA5 1972) (en banc), quot-\ninant' motivation of school authorities\ning United States V. Jefferson County\nis as irrelevant as it is fruitless. The\nline between de jure segregation that may\nthat if such an intent is found with\nsafely be assumed to have spent itself and\nrespect to some schools in a system, the\nthat which may not. For many remedial\nburden-normally on the plaintiffs—\npurposes, adoption of an arbitrary but\nshifts to the defendant school authorities\neasily administrable cutoff point might\nto prove a negative: namely, that their\nnot be objectionable. But in a situation\npurposes were benign, supra, at 2697-\nsuch as school desegregation, where both\n2698.\nthe rights asserted and the remedial\nThe Court has come a long way since\nburdens imposed are of such magnitude,\nBrown I. Starting from the unassailable\nand where the resulting sectional dis-\nde jure ground of the discriminatory con-\ncrimination is passionately resented, it\nstitutional and statutory provisions of\nis surely questionable whether such\nsome States, the new formulation-still\narbitrariness is either politically or\nprofessing fidelity to the de jure doctrine\nmorally acceptable.\"\n-is that desegregation will be ordered\n14. See Bickel, supra, n. 7, at 119:\ndespite the absence of any segregative\n\"If a Negro child perceives his separa-\nlaws if: (i) segregated schools in fact\ntion as discriminatory and invidious, he\nexist; (ii) a court finds that they result\nis not, in a society a hundred years re-\nfrom some action taken with segregative\nmoved from slavery, going to make fine\nintent by the school board; (iii) such\ndistinctions about the source of a par-\naction relates to any \"meaningful seg-\nticular separation.\"\nment\" of the school system and (iv) the\nschool board cannot prove that its in-\n15. The Court today does not require, how-\ntentions with respect to the remainder of\never, a segregative intent with respect to\nthe system were nonsegregative.\nthe entire school system, and indeed holds\n413 U.S. 233\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2709\nCite as 93 S.Ct. 2686 (1973)\nmandate of Brown II was to desegre-\nthousand jurors called in the past 25\ngate schools, and we have said that\nyears. The result bespeaks discrimi-\n'[t]he measure of any desegregation\nnation, whether or not it was a con-\nplan is its effectiveness.' Davis V.\nscious decision on the part of any in-\nSchool Commissioners of Mobile Coun-\ndividual jury commissioner.\" Her-\nty, 402 U.S. 33, 37 [91 S.Ct. 1289,\nnandez V. Texas, 347 U.S. 475, 482, 74\n1292, 28 L.Ed.2d 577]. Thus, we have\nS.Ct. 667, 672, 98 L.Ed. 866 (1954).\nfocused upon the effect-not the pur-\n(Emphasis added.)\npose or motivation-of a school\nboard's action in determining whether\nB\nit is a permissible method of disman-\nThere is thus no reason as a matter of\ntling a dual system.\nconstitutional principle to adhere to the\nThough the purpose of the\nde jure/de facto distinction in school de-\nnew school districts was found to be\nsegregation cases. In addition, there\ndiscriminatory in many of these cases,\nare reasons of policy and prudent judi-\nthe courts' holdings rested not on mo-\ncial administration which point strongly\ntivation or purpose, but on the effect\ntoward the adoption of a uniform na-\nof the action upon the dismantling of\ntional rule. The litigation heretofore\nthe dual school systems involved. That\ncentered in the South already is surfac-\nwas the focus of the District Court in\ning in other regions. The decision of\nthis case, and we hold that its ap-\nthe Court today, emphasizing as it does\nproach was proper.\" 407 U.S., at 462,\nthe elusive element of segregative in-\n92 S.Ct., at 2203.\ntent, will invite numerous desegregation\nsuits in which there can be little hope of\nI can discern no basis in law or logic for\nuniformity of result.\nholding that the motivation of school\nboard action is irrelevant in Virginia\nThe issue in these cases will not be\nand controlling in Colorado. It may be\nwhether segregated education exists.\nargued, of course, that in Emporia a\nThis will be conceded in most of them.\n232 prior constitutional violation had already\nThe litigation will focus as a conse-\n233\nbeen proved and that this justifies the\nquence of the Court's decision on wheth-\ndistinction. The net result of the\ner segregation has resulted in any\nCourt's language, however, is the appli-\n\"meaningful or significant\" portion of a\ncation of an effect test to the actions of\nschool system from a school board's\nsouthern school districts and an intent\n\"segregative intent.\" The intractable\ntest to those in other sections, at least\nproblems involved in litigating this issue\nuntil an initial de jure finding for those\nare obvious to any lawyer. The results\ndistricts can be made. Rather than\nof litigation-often arrived at subjec-\nstraining to perpetuate any such dual\ntively by a court endeavoring to ascer-\nstandard, we should hold forthrightly\ntain the subjective intent of school au-\nthat significant segregated school condi-\nthorities with respect to action taken or\ntions in any section of the country\nnot taken over many years-will be for-\nare a prima facie violation of constitu-\ntuitous, unpredictable and even capri-\ntional rights. As the Court has noted\ncious.\nelsewhere:\nThe Denver situation is illustrative of\n\"Circumstances or chance may well\nthe problem. The court below found evi-\ndictate that no persons in a certain\ndence of de jure violations with respect\nclass will serve on a particular jury or\nto the Park Hill schools and an absence\nduring some particular period. But it\nof such violations with respect to the\ntaxes our credulity to say that mere\ncore city schools, despite the fact that\nchance resulted in there being no mem-\nactions taken by the shcool board with re-\nbers of this class among the over six\ngard to those two sections were not dis-\n2710\n93 SUPREME COURT REPORTER\n413 U.S. 233\nsimilar. It is, for example, quite possi-\nof a school board and school administra-\nble to contend that both the construction\ntion, and indeed every failure to act\nof Manual High School in the core city\nwhere affirmative action is indicated,\narea and Barrett Elementary School in\nmust now be subject to scrutiny. The\nthe Park Hill area operated to serve their\nmost routine decisions with respect to\nsurrounding Negro communities and, in\nthe operation of schools, made almost\neffect, to merge school attendance zones\ndaily, can affect in varying degrees the\nwith segregated residential patterns.\nextent to which schools are initially seg-\nSee Brief for Petitioners 80-83. Yet\nregated, remain in that condition, are\nfindings even on such similar acts will,\ndesegregated, or-for the long term fu-\nunder the de jure/de facto distinction,\nture-are likely to be one or the other.\ncontinue to differ, especially since the\nThese decisions include action or nonac-\nCourt has never made clear what suf-\ntion with respect to school building con-\nfices to establish the requisite \"segrega-\nstruction and location; the timing of\ntive intent\" for an initial constitutional\nbuilding new schools and their size; the\nviolation. Even if it were possible to\nclosing and consolidation of schools; the\nclarify this question, wide and unpre-\ndrawing or gerrymandering of student 235\ndictable differences of opinion among\nattendance zones; the extent to which a\njudges would be inevitable when dealing\nneighborhood policy is enforced; the re-\nwith an issue as slippery as \"intent\" or\ncruitment, promotion and assignment of\n\"purpose,\" especially when related to\nfaculty and supervisory personnel; poli-\nhundreds of decisions made by school\ncies with respect to transfers from one\nauthorities under varying conditions\nschool to another; whether, and to what\nover many years.\nextent, special schools will be provided,\nThis Court has recognized repeatedly\nwhere they will be located, and who will\nthat it is \"extremely difficult for a\nqualify to attend them; the determina-\ncourt to ascertain the motivation, or\ntion of curriculum, including whether\ncollection of different motivations, that\nthere will be \"tracks\" that lead primari-\n|234 lie behind a legislative enactment,\" Pal-\nly to college or to vocational training,\nmer V. Thompson, 403 U.S. 217, 224, 91\nand the routing of students into these\nS.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971) ;\ntracks; and even decisions as to social,\nMcGinnis V. Royster, 410 U.S. 263, 276-\nrecreational, and athletic policies.\n277, 93 S.Ct. 1055, 1063, 35 L.Ed.2d 282\nIn Swann the Court did not have to\n(1973); United States V. O'Brien, 391\nprobe into segregative intent and proxi-\nU.S. 367, 381, 88 S.Ct. 1673, 1681, 20 L.\nmate cause with respect to each of these\nEd.2d 672 (1968). Whatever difficul-\n\"endless\" factors. The basis for its de\nties exist with regard to a single statute\njure finding there was rooted primarily\nwill be compounded in a judicial review\nin the prior history of the desegregation\nof years of administration of a large\nsuit. 402 U.S., at 5-6, 91 S.Ct., at 1271.\nand complex school system. 16 Every act\nBut in a case of the present type, where\n16. As one commentator has expressed it:\nstituents, many of whom they knew to be\n\"If the courts are indeed prepared to\nso? If such cases are classified as un-\ninquire into motive, thorny questions will\nconstitutional de jure segregation, there\narise even if one assumes that racial\nis little point in preserving the de jure-de\nmotivation is capable of being proven at\nfacto distinction at all. And it may well\ntrial. What of the case in which one or\nbe that the difference between any of\nmore members of a school board, but less\nthese situations and one in which racial\nthan a majority, are found to have acted\nmotivation is altogether lacking is too in-\non racial grounds? What if it appears\nsignificant, from the standpoint of both\nthat the school board's action was\nthe moral culpability of the state officials\nprompted by a mixture of motives, in-\nand the impact upon the children in-\ncluding constitutionally innocent ones\nvolved, to support a difference in con-\nthat alone would have prompted the board\nstitutional treatment.\" Goodman, De\nto act? What if the members of the\nFacto School Segregation: A Constitu-\nschool board were not themselves racially\ntional and Empirical Analysis, 60 Calif.L.\ninspired but wished to please their con-\nRev. 275, 284-285 (1972).\n413 U.S. 237 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2711\nCite as 93 S.Ct. 26S6 (1973)\nno such history exists, a judicial exami- tion. It is this policy which must be\nnation of these factors will be required\napplied consistently on a national basis\nunder today's decision. This will lead\nwithout regard to a doctrinal distinction\ninevitably to uneven and unpredictable\nwhich has outlived its time.\nresults, to protracted and inconclusive\nlitigation, to added burdens on the fed-\nIII\neral courts, and to serious disruption of\nindividual school systems. In the ab-\nThe preceding section addresses the\nsence of national and objective stand-\nconstitutional obligation of public au-\nards, school boards and administrators\nthorities in the school districts through-\nwill remain in a state of uncertainty and\nout our country to operate integrated\ndisarray, speculating as to what is re-\nschool systems. When the schools of a\nquired and when litigation will strike.\nparticular district are found to be sub-\nstantially segregated, there is a prima\nC\nfacie case that this obligation has not\nbeen met. The burden then shifts to the\nRather than continue to prop up a dis-\nschool authorities to demonstrate that\ntinction no longer grounded in principle,\nthey have in fact operated an integrated\nand contributing to the consequences in-\nsystem as this term is defined supra, at\ndicated above, we should acknowledge\n2706-2707. If there is a failure success-\nthat whenever public school segregation\nfully to rebut the prima facie case, the\nquestion then becomes what reasonable\nexists to a substantial degree there is\naffirmative desegregative steps district\nprima facie evidence of a constitutional\ncourts may require to place the school\n237\nviolation by the responsible school board.\nsystem in compliance with the constitu-\nIt is true, of course, that segregated\ntional standard. In short, what specifi-\nschools-wherever located--are not sole-\ncally is the nature and scope of the\n236 ly the product of the action orginaction\nremedy?\nof public school authorities. Indeed, as\nindicated earlier, there can be little\nAs the Court's opinion virtually com-\ndoubt that principal causes of the perva-\npels the finding on remand that Denver\nsive school segregation found in the ma-\nhas a \"dual school system,\" that city will\njor urban areas of this country, wheth-\nthen be under an \"affirmative duty\" to\ner in the North, West, or South, are the\ndesegregate its entire system \"root and\nsocio-economic influences which have\nbranch.\" Green V. County School Board,\nconcentrated our minority citizens in the\n391 U.S., at 437-438, 88 S.Ct., at 1694.\ninner cities while the more mobile white\nAgain, the critical question is, what\nmajority disperse to the suburbs. But\nought this constitutional duty to entail?\nit is also true that public school boards\nhave continuing, detailed responsibility\nA\nfor the public school system within their\ndistrict and, as Judge John Minor Wis-\nThe controlling case is Swann, supra,\ndom has noted, \"[w]hen the figures\nand the question which will confront and\n[showing segregation in the schools]\nconfound the District Court and Denver\nspeak so eloquently, a prima facie case\nSchool Board is what, indeed, does\nof discrimination is established.\" Unit-\nSwann require? Swann purported to\ned States V. Texas Education Agency,\nenunciate no new principles, relying\nheavily on Brown I and II and on Green.\n467 F.2d 848, 873 (CA5 1972) (en banc).\nYet it affirmed a district court order\nMoreover, as foreshadowed in Swann\nwhich had relied heavily on \"racial ra-\nand as implicitly held today, school\ntios\" and sanctioned transportation of\nboards have a duty to minimize and ame-\nelementary as well as secondary pupils.\nliorate segregated conditions by pursu-\nLower federal courts have often read\ning an affirmative policy of desegrega-\nSwann as requiring far-reaching trans-\n2712\n93 SUPREME COURT REPORTER\n413 U.S. 237\nportation decrees 17 \"to achieve the\nmore readily to this task than those in\n238 greatest possible degree of actualideseg-\nmetropolitan districts \"with dense and\nregation.\" 402 U.S., at 26, 91 S.Ct., at\nshifting population, numerous schools,\n1281. In the context of a large urban\ncongested and complex traffic patterns.\"\narea, with heavy residential concentra-\nId., at 14, 91 S.Ct., at 1275. Although\ntions of white and black citizens in dif-\nthe use of pupil transportation was ap-\nferent-and widely separated-sections\nproved as a remedial device, transporta-\nof the school district, extensive disper-\ntion orders are suspect \"when the time\nsal and transportation of pupils is inev-\nor distance of travel is SO greatias to ei-\n1239\nitable if Swann is read as expansively as\nther risk the health of the children or\nmany courts have been reading it to\nsignificantly impinge on the educational\ndate.\nprocess.\" Id., at 30-31, 91 S.Ct., at 1283.\nTo the extent that Swann may be\nFinally, the age of the pupils to be\nthought to require large-scale or long-\ntransported was recognized by the Court\ndistance transportation of students in\nin Swann as one important limitation on\nour metropolitan school districts, I\nthe time of student travel. Id., at 31,\nrecord my profound misgivings. Noth-\n91 S.Ct., at 1283.\ning in our Constitution commands or en-\nThese factors were supposed to help\ncourages any such court-compelled dis-\nguide district courts in framing equita-\nruption of public education. It may be\nble remedies in school desegregation\nmore accurate to view Swann as having\ncases. 18 And the Court further empha-\nlaid down a broad rule of reason under\nsized that equitable decrees are inherent-\nwhich desegregation remedies must re-\nly sensitive, not solely to the degree of\nmain flexible and other values and inter-\ndesegregation to be achieved, but to a\nests be considered. Thus the Court rec-\nvariety of other public and private inter-\nognized that school authorities, not the\nests:\nfederal judiciary, must be charged in\n\"[A] school desegregation case does\nthe first instance with the task of deseg-\nnot differ fundamentally from other\nregating local school systems. Id., at\ncases involving the framing of equi-\n16, 91 S.Ct., at 1276. It noted that\ntable remedies to repair the denial of\nschool boards in rural areas can adjust\na constitutional right. The task is\n17. See, e. g., Thompson V. School Board of\n61,530 children respectively, for undeter-\nNewport News, 465 F.2d 83, 87 (1972),\nmined lengths of time. Id., at 895-986.\nwhere the Fourth Circuit en banc upheld\nPetitioners before this Court in Potts V.\na district court assignment plan where\nFlax, cert. denied, 409 U.S. 1007, 93 S.Ct.\n\"travel time, varying from a minimum of\n433, 34 L.Ed.2d 299 (1972), contended\nforty minutes and a maximum of one\nthat the implementation of the Fifth Cir-\nhour, each way, would be required for\ncuit's directive in Flax V. Potts, 464 F.2d\nbusing black students out of the old City\n865 (1972), would require bus rides of up\nand white students into the old City in\nto two hours and 20 minutes each day\norder to achieve a racial balancing of the\nand a round trip of up to 70 miles. Pet.\ndistrict.\" This transportation was decreed\nfor Cert. 14. While respondents contend-\nfor children from the third grade up, in-\ned these figures represent an \"astounding\nvolving children as young as eight years\ninflation,\" Brief in Opposition 7, trans-\nof age.\nportation of a significant magnitude\nIn Northeross V. Board of Education of\nseems inevitable.\nMemphis City Schools, 466 F.2d 890, 895\n(1972), the Sixth Circuit affirmed a dis-\n18. See United States V. Texas Education\ntrict court assignment plan which daily\nAgency, 467 F.2d 848, 883 (CA5 1972)\ntransported 14,000 children with \"the\n(Bell, J., concurring in an opinion in\nmaximum time to be spent on the buses\nwhich seven other judges joined)\nby any child [being] 34 minutes\n\"In our view the remedy which the dis-\npresumably each way. But as Judge\ntrict court is required to formulate should\nWeick noted in dissent the Sixth Circuit\nbe formulated within the entire context\ninstructed the district judge to implement\nof the opinion in Swann V. Charlotte-\nyet further desegregation orders. Plans\nMecklenburg Board of Education\npresently under consideration by that\n(Emphasis added.)\ncourt call for the busing of 39,085 and\n413 U.S. 241\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2713\nCite as 93 S.Ct. 2686 (1973)\nto correct, by a balancing of the indi-\nen effectively without damaging state\nvidual and collective interests, the con-\nand parental interests in having children\ndition that offends the Constitution.\nattend schools within a resonable vicini-\nId., at 15-16, 91 S.Ct., at 1276.\nty of home. Where desegregative steps\nThose words echoed a similar expres-\nare possible within the framework of a\nsion in Brown II, 349 U.S., at 300, 75 S.\nsystem of \"neighborhood education,\"\nCt., at 756:\nschool authorities must pursue them.\nFor example, boundaries of neighbor-\n\"In fashioning and effectuating the\nhood attendance zones should be drawn\ndecrees, the courts will be guided by\nto integrate to the extent practicable,\nequitable principles. Traditionally,\nthe school's student body. Construction\nequity has been characterized by a\nof new schools should be of such a size\npractical flexibility in shaping its\n241\nand at such a location as to encourage\nremedies and by a facility for adjust-\nthe likelihood of integration, Swann, su-\ning and reconciling public and private\npra, 402 U.S., at 21, 91 S.Ct., at 1278.\nneeds.\"\nFaculty integration should be attained\nThus, in school desegration cases, as\nthroughout the school system, id., at 19,\nelsewhere, equity counsels reason, flexi-\n91 S.Ct. at 1277; United States V. Mont-\n240 bility, and balance. See e. g. Lemon[v.\ngomery County Board of Education, 395\nKurtzman, 411 U.S. 192, 93 S.Ct. 1463,\nU.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263\n36 L.Ed.2d 151 (1973). I am aware, of\n(1969). An optional majority-to-minori-\ncourse, that reasonableness in any area\nty transfer program, with the State pro-\nis a relative and subjective concept.\nviding free transportation to desiring\nBut with school desegregation, reason-\nstudents, is also a helpful adjunct to a\nableness would seem to embody a bal-\ndesegregated school system. Swann, su-\nanced evaluation of the obligation of\npra, 402 U.S., at 26-27, 91 S.Ct., at 1281-\npublic school boards to promote desegre-\n1282. It hardly need be repeated that\ngation with other, equally important ed-\nallocation of resources within the school\nucational interests which a community\ndistrict must be made with scrupulous\nmay legitimately assert. Neglect of ei-\nfairness among all schools.\nther the obligation or the interests de-\nstroys the even-handed spirit with which\nThe above examples are meant to be\nequitable remedies must be approach-\nillustrative, not exhaustive. The point\ned.¹⁹ Overzealousness in pursuit of any\nis that the overall integrative impact of\nsuch school board decisions must be as-\nsingle goal is untrue to the tradition of\nequity and to the \"balance\" and \"flexi-\nsessed by district courts in deciding\nbility\" which this Court has always re-\nwhether the duty to desegregate has\nspected.\nbeen met. For example, \"neighborhood\nschool plans are constitutionally suspect\nB\nwhen attendance zones are superficially\nWhere school authorities have default-\nimposed upon racially defined neighbor-\ned in their duty to operate an integrated\nhoods, and when school construction pre-\nschool system, district courts must in-\nserves rather than eliminates the racial\nsure that affirmative desegregative\nhomogeny [sic] of given schools.\" 20\nsteps ensue. Many of these can be tak-\nKeyes V. School District No. 1, Denver\n19. The relevant inquiry is \"whether the\neducation, or involves a genuiue element\ncosts of achieving desegregation in any\nof danger to the safety of the child.\"\ngiven situation outweigh the legal, moral,\nComment, School Desegregation After\nand educational considerations favoring\nSwann: A Theory of Government Re-\nit.\nIt is clear\nthat\nsponsibility, 39 U.Chi.L.Rec. 421, 422, 443\nthe Constitution should not be held to re-\n(1972).\nquire any transportation plan that keeps\nchildren on a bus for a substantial part\n20. A nseful study of the historical uses and\nof the day, consumes significant portions\nabuses of the neighborhood school concept\nof funds otherwise spendable directly on\nis M. Weinberg, Race & Place (1967).\nS.Ct.-1701/2\n2714\n93 SUPREME COURT REPORTER\n413 U.S. 241\nColorado, 445 F.2d 990, 1005 (CA10\nimportant community aspirations and\n1971). See United States V. Board of\npersonal rights. Such a requirement is\nEducation of Tulsa County, 429 F.2d\nalso likely to divert attention and re-\n1253, 1258-1259 (CA10 1970). This\nsources from the foremost goal of any\ndoes not imply that decisions on faculty\nschool system: the best quality educa-\nassignment, attendance zones, school con-\ntion for all pupils. The Equal Protec-\nstruction, closing and consolidation, must\ntion Clause does, indeed, command that\nbe made to the detriment of all neutral,\nracial discrimination not be tolerated in\nnonracial considerations. But these con-\nthe decisions of public school authori-\nsiderations can, with proper school board\nties. But it does not require that school\ninitiative, generally be met in a manner\nauthorities undertake widespread stu-\nthat will enhance the degree of school\ndent transportation solely for the sake\ndesegregation.\nof maximizing integration.\nC\nThis obviously does not mean that bus\n1243\ntransportation has no place in public\nDefaulting school authorities would\nschool systems or is not a permissible\nhave, at a minimum, the obligation to\nmeans in the desegregative process.\n1242 take affirmative steps of the sort 1out-\nThe transporting of school children is as\nlined in the above section. School\nold as public education, and in rural and\nboards would, of course, be free to devel-\nsome suburban settings it is as indispen-\nop and initiate further plans to promote\nsable as the providing of books. It is\nschool desegregation. In a pluralistic\npresently estimated that approximately\nsociety such as ours, it is essential that\nhalf of all American children ride buses\nno racial minority feel demeaned or dis-\nto school for reasons unrelated to\ncriminated against and that students of\nintegration. At the secondary level in\nall races learn to play, work, and cooper-\nparticular, where the schools are larger\nate with one another in their common\nand serve a wider, more dispersed con-\npursuits and endeavors. Nothing in this\nstituency than elementary schools, some\nopinion is meant to discourage school\nform of public or privately financ-\nboards from exceeding minimal constitu-\ned transportation is often necessary.\ntional standards in promoting the values\nThere is a significant difference, how-\nof an integrated school experience.\never, in transportation plans voluntarily\nA constitutional requirement of exten-\ninitiated by local school boards for edu-\nsive student transportation solely to\ncational purposes and those imposed by\nachieve integration presents a vastly\na federal court. The former usually\nmore complex problem. It promises, on\nrepresent a necessary or convenient\nthe one hand, a greater degree of actual\nmeans of access to the school nearest\ndesegregation, while it infringes on\nhome; the latter often require lengthy\nwhat may fairly be regarded as other\ntrips for no purpose other than to fur-\n21. In fact, due to racially separate resi-\ning of the environment involving economic\ndential patterns that characterize our\nand social policy on the broadest con-\nmajor urban areas it is quite unrealistic\nceivable front might have an appreciable\nto think of achieving in many cities sub-\nimpact.\" Bickel, supra, n. 7, at 132.\nstantial integration throughout the school\ndistrict without a degree of student trans-\n22. Estimates vary. Swann, 402 U.S., at\nportation which would have the gravest\n29, 91 S.Ct. at 1882, noted that \"[e]ight-\neconomic and educational consequences.\neen million of the Nation's public school\nAs Professor Bickel notes:\nchildren, approximately 39%, were trans-\n\"In most of the larger urban areas,\nported to their schools by bus in 1969-\n1970 in all parts of the country.\" Sen-\ndemographic conditions are such that no\nator Ribicoff, a thoughtful student of this\npolicy that a court can order, and a school\nproblem, stated that '[t]wo-thirds of all\nboard, a city, or even a state has the\nAmerican children today ride buses to\ncapability to put into effect, will in fact\nschools for reasons unrelated to integra-\nresult in the foresecable future in racially\ntion,\" 118 Cong.Rec. 5456 (1972).\nbalanced public schools. Only a reorder-\n413 U.S. 245\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2715\nCite as 93 S.Ct. 2686 (1973)\n1244\nther\nintegration.\nYet\nthe\nCourt\nin\nand disruptive transportation. The re-\nSwann was unquestionably right in de-\nfusal of the Court in Swann to require\nscribing bus transportation as \"one tool\nracial balance in schools throughout the\nof school desegregation.\" 402 U.S., at 30,\ndistrict or the arbitrary elimination of\n91 S.Ct., at 1283.2 The crucial issue\nall \"one-race schools,\" id., at 26, 91\nis when, under what circumstances, and\nS.Ct., at 1281, is grounded in a recogni-\nto what extent such transportation may\ntion that[the State, parents, and children 1245\nappropriately be ordered. The answer\nall have at stake in school desegregation\nto this turns-as it does SO often in the\ndecrees, legitimate and recognizable in-\nlaw-upon a sound exercise of discretion\nterests.\nunder the circumstances.\nThe personal interest might be charac-\nSwann itself recognized limits to de-\nterized as the desire that children attend\nsegregative obligations. It noted that a\ncommunity schools near home. Dr.\nconstitutional requirement of \"any par-\nJames Coleman testified for petitioners\nticular degree of racial balance or mix-\nat trial that \"most school systems organ-\ning\nwould be disapproved\nize their schools in relation to the resi-\nand sanctioned district court\ndents by having fixed school districts\nuse of mathematical ratios as \"no more\nand some of these are very ethnically\nthan a starting point in the process of\nhomogeneous.\" App. 1549a. In Deal V.\nshaping a remedy\nId.,\nat\nCincinnati Board of Education, 369 F.2d,\n24, 25, 91 S.Ct., at 1280, 1281. Thus,\nat 60, the Sixth Circuit summarized the\nparticular schools may be all white or all\nadvantages of such a neighborhood sys-\nblack and still not infringe constitution-\ntem of schools: 25\nal rights if the system is genuinely inte-\ngrated and school authorities are pursu-\n\"Appellants, however, pose the ques-\ning integrative steps short of extensive\ntion of whether the neighborhood sys-\n23. Historically, distant transportation was\nBoard of Education of Memphis City\nwrongly used to promote segregation.\nSchools, 444 F.2d 1179, 1182-1183 (CA6\n\"Negro children were generally considered\n1971); Davis v. Board of Education of\ncapable of traveling longer distances to\nNorth Little Rock, 328 F.Supp. 1197,\nschool and without the aid of any vehicle.\n1203 (ED Ark.1971). Where a school\nWhat was too far for a white child\nboard is voluntarily engaged in transport-\nbecame reasonably near for a Negro\ning students, a district court is, of course,\nchild,\" Weinberg, supra, n. 20, at 87.\nobligated to insure that such transporta-\nThis deplorable history has led some to\ntion is not undertaken with segregative\nargue that integrative bus rides are justi-\neffect. Where, also, voluntary transpor-\nfied as atonement for past segregative\ntation programs are already in progress,\ntrips and that neighborhood education is\nthere may be greater justification for\nnow but a code word for racial segrega-\ncourt-ordered transportation of students\ntion. But misuse of transportation in the\nfor a comparable time and distance to\npast does not imply neighborhood school-\nachieve greater integration.\ning has no valid nonsegregative uses for\nthe present. Nor would wrongful trans-\n25. The term \"neighborhood school\" should\nportation in the past justify detrimental\nnot be supposed to denote solely a walk-\ntransportation for the children of today.\nin school or one which serves children\nonly in the surrounding blocks. The\n24. Some communities had transportation\nCourt has noted, in a different context,\nplans in effect at the time of court de-\nthat \"[t]he word 'neighborhood' is quite\nsegregation orders. See Swann, supra, at\nas susceptible of variation as the word\n29 n. 11, 91 S.Ct. at 1282; Davis V.\n'locality.' Both terms are elastic and,\nBoard of School Commissioners of Mobile\ndependent upon circumstances, may be\nCounty, 402 U.S. 33, 34-35, 91 S.Ct. 1289,\nequally satisfied by areas measured by\n1290-1291, 28 L.Ed.2d 577 (1971). Courts\nrods or by miles.\" Connally V. General\nhave used the presence or absence of\nConstruction Co., 269 U.S. 385, 395, 46\nexisting transportation in a district as\nS.Ct. 126, 129, 70 L.Ed. 322 (1926). In\none factor in framing and implementing\nthe school context, \"neighborhood\" refers\ndesegregation decrees. United States V.\nto relative proximity, to a preference for\nWatson Chapel School District, 440 F.2d\na school nearer to, rather than more dis-\n933, 937 (CA8 1971) ; Northcross V.\ntant from, home.\n2716\n93 SUPREME COURT REPORTER\n413 U.S. 245\ntem of pupil placement, fairly admin-\nthe name of constitutional law what may\nistered without racial bias, comports\nseem to many a dissolution in the tradi-\nwith the requirements of equal oppor-\ntional, more personal fabric of their\ntunity if it nevertheless results in the\npublic schools.\ncreation of schools with predominantly\nClosely related to the concept of a\nor even exclusively Negro pupils. The\ncommunity and neighborhood education,\nneighborhood system is in wide use\nare those rights and duties parents have\nthroughout the nation and has been\nwith respect to the education of their\nfor many years the basis of school ad-\nchildren. The law has long recognized\nministration. This is so because it is\nthe parental duty to nurture, support,\nacknowledged to have several valuable\nand provide for the welfare of children,\naspects which are an aid to education,\nincluding their education. In Pierce V. 247\nsuch as minimization of safety haz-\nSociety of Sisters, 268 U.S. 510, 534-\nards to children in reaching school,\n535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 a\neconomy of cost in reducing transpor-\nunanimous Court held that:\n246\ntation needs, ease of pupil placement\nand administration through the use of\n\"Under the doctrine of Meyer V. Ne-\nneutral, easily determined standards,\nbraska, 262 U.S. 390 [43 S.Ct. 625, 67\nand better home-school communica-\nL.Ed. 1042], we think it entirely plain\ntion.\"\nthat the Act of 1922 unreasonably in-\nterferes with the liberty of parents\nThe neighborhood school does provide\nand guardians to direct the upbring-\ngreater ease of parental and student ac-\ning and education of children under\ncess and convenience, as well as greater\ntheir control.\nThe child is\neconomy of public administration.\nnot the mere creature of the State;\nThese are obvious and distinct advan-\nthose who nurture him and direct his\ntages, but the legitimacy of the neigh-\ndestiny have the right, coupled with\nborhood concept rests on more basic\nthe high duty, to recognize and pre-\ngrounds.26\npare him for additional obligations.\"\nNeighborhood school systems, neutral-\nAnd in Griswold V. Connecticut, 381\nly administered, reflect the deeply felt\nU.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.\ndesire of citizens for a sense of commu-\nEd.2d 510 (1965), the Court noted that\nnity in their public education. Public\nin Pierce, \"the right to educate one's\nschools have been a traditional source of\nchildren as one chooses is made applica-\nstrength to our Nation, and that\nble to the States by the force of the\nstrength may derive in part from the\nFirst and Fourteenth Amendments.\" I\nidentification of many schools with the\ndo not believe recognition of this right\npersonal features of the surrounding\ncan be confined solely to a parent's\nneighborhood. Community support, in-\nchoice to send a child to public or pri-\nterest, and dedication to public schools\nvate school. Most parents cannot afford\nmay well run higher with a neighbor-\nthe luxury of a private education for\nhood attendance pattern: distance may\ntheir children, and the dual obligation of\nencourage disinterest. Many citizens\nprivate tuitions and public taxes. Those\nsense today a decline in the intimacy of\nwho may for numerous reasons seek\nour institutions-home, church, and\npublic education for their children\nschool-which has caused a concomitant\nshould not be forced to forfeit all inter-\ndecline in the unity and communal spirit\nest or voice in the school their child at-\nof our people. I pass no judgment on\ntends. It would, of course, be impracti-\nthis viewpoint, but I do believe that this\ncal to allow the wishes of particular par-\nCourt should be wary of compelling in\nents to be controlling. Yet the interest\n26. I do not imply that the neighborhood\nchosen it, federal judges should accord it\nconcept must be embodied in every school\nrespect in framing remedial decrees.\nsystem. But where a school board has\n413 U.S. 249\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2717\nCite as 93 S.Ct. 2686 (1973)\nof the parent in the enhanced parent-\ncomposition. Some districts with little\nschool and parent-child communication\nor no biracial population will experience\nallowed by the neighborhood unit ought\nlittle or no educational disruption, while\nnot to be suppressed by force of law.\nothers, notably in large, biracial metro-\nIn the commendable national concern\npolitan areas, must at considerable ex-\nfor alleviating public school segregation,\npense undertake extensive transportation\ncourts may have overlooked the fact that\nto achieve the type of integration fre-\nthe rights and interests of children af-\nquently being ordered by district\ncourts. At a time when public educa-\nfected by a desegregation program also\nare entitled to consideration. Any child,\ntion generally is suffering serious finan-\nwhite or black, who is compelled to leave\ncial malnutrition, the economic burdens\nhis neighborhood and spend significant\nof such transportation can be severe, re-\n1248 time each day being transported to a\nquiring both initial capital outlays and\ndistant school suffers an impairment of\nannual operating costs in the millions of\ndollars.29 And while constitutional re-\nhis liberty and his privacy. Not long\nago, James B. Conant wrote that \"[a]t\nquirements havejoften occasioned uneven\n1249\nthe elementary school level the issue\nburdens, never have they touched SO sen-\nsitive a matter as wide differences in\nseems clear. To send young children\nday after day to distant schools by bus\nthe compulsory transportation require-\nseems out of the question.\"²⁷ A commu-\nments for literally hundreds of thou-\nsands of school children.\nnity may well conclude that the portion\nof a child's day spent on a bus might be\nThe argument for student transporta-\nused more creatively in a classroom,\ntion also overlooks the fact that the rem-\nplayground, or in some other extracur-\nedy exceeds that which may be necessary\nricular school activity. Decisions such\nto redress the constitutional evil. Let\nas these, affecting the quality of a child's\nus use Denver as an example. The Den-\ndaily life, should not lightly be held con-\nver School Board, by its action and non-\nstitutionally errant.\naction, may be legally responsible for\nUp to this point I have focused mainly\nsome of the segregation that exists.\non the personal interests of parents and\nBut if one assumes a maximum dis-\nchildren which a community may believe\ncharge of constitutional duty by the\nto be best protected by a neighborhood\nDenver Board over the past decades, the\nsystem of schools. But broader consid-\nfundamental problem of residential seg-\nerations lead me to question just as seri-\nregation would persist. 30 It is, indeed, a\nously any remedial requirement of ex-\nnovel application of equitable power-\ntensive student transportation solely to\nnot to mention a dubious extension of\nfurther integration. Any such require-\nconstitutional doctrine-to require SO\nment is certain to fall disproportionately\nmuch greater a degree of forced school\non the school districts of our country,\nintegration than would have resulted\ndepending on their degree of urbaniza-\nfrom purely natural and neutral non-\ntion, financial resources, and their racial\nstate causes.\n27. Slums and Suburbs 29 (1961).\ndistrict court will require initial capital\ninvestments of $3,924,000 and annual\n28. See n. 21, supra.\noperating costs of $1,783,490. The most\ndrastic transportation plan before the dis-\n29. In Memphis, for example, which has no\ntrict court requires estimated annual\nhistory of busing students, the minimum\noperating costs of from $2,354,220,\ntransportation plan ordered by the courts\n$2,431,710, or $3,463,100 depending on\nwill require, in the School Board's\nthe Board's transportation, arrangements.\nestimate, an initial capital expenditure of\nNorthcross V. Board of Education of\n$1,664,192 for buses plus an annual\nMemphis City Schools, 466 F.2d at 898\noperating cost of $629,192. The Board\n(Weick, J., dissenting).\nestimates that a more extensive trans-\nportation program to be considered by the\n30. See n. 9, supra.\n2718\n93 SUPREME COURT REPORTER\n413 U.S. 249\nThe compulsory transportation of stu-\nother public authorities, and students of\ndents carries a further infirmity as a\npublic education for nearly two decades.\nconstitutional remedy. With most con-\nThe problem, especially since it has fo-\nstitutional violations, the major burden\ncused on the \"busing issue,\" has pro-\nof remedial action falls on offending\nfoundly disquieted the public wherever\nstate officials. Public officials who act\nextensive transportation has been or-\nto infringe personal rights of speech,\ndered. I make no pretense of knowing\nvoting, or religious exercise, for exam-\nthe best answers. Yet, the issue in this\nple, are obliged to cease the offending\nand like cases comes to this Court as one\nact or practice and, where necessary, in-\nof constitutional law. As to this issue, I\nstitute corrective measures. It is they\nhave no doubt whatever. There is noth-\nwho bear the brunt of remedial action,\ning in the Constitution, its history, or-\nthough other citizens will to varying de-\nuntil recently-in the jurisprudence of\n1250 grees feel its effects. School authorities\nthis Court that mandates the employ-\nresponsible for segregation must, at the\nment of forced transportation of young\nvery minimum, discontinue segregative\nand teenage children to achieve a single\nacts. But when the obligation further\ninterest, as important as that interest\n251\nextends to the transportation of stu-\nmay be. We have strayed, quite far as I\ndents, the full burden of the affirmative\nview it, from the rationale of Brown I\nremedial action is borne by children and\nand II, as reiterated in Swann, that\nparents who did not participate in any\ncourts in fashioning remedies must be\nconstitutional violation.\n\"guided by equitable principles\" which\ninclude the \"adjusting and reconciling\nFinally, courts in requiring SO far-\n[of] public and private needs,\" Brown\nreaching a remedy as student transpor-\nII, 349 U.S., at 300, 75 S.Ct., at 756.\ntation solely to maximize integration,\nrisk setting in motion unpredictable and\nI urge a return to this rationale.\nunmanageable social consequences. No\nThis would result, as emphasized above,\none can estimate the extent to which dis-\nin no prohibition on court-ordered stu-\nmantling neighborhood education will\ndent transportation in furtherance of\nhasten an exodus to private schools,\ndesegregation. But it would require\nleaving public school systems the pre-\nthat the legitimate community inter-\nserve of the disadvantaged of both races.\nests in neighborhood school systems\nOr guess how much impetus such dis-\nbe accorded far greater respect. In the\nmantlement gives the movement from\nbalancing of interests so appropriate to\ninner city to suburb, and the further geo-\na fair and just equitable decree, trans-\ngraphical separation of the races. Nor\nportation orders should be applied with\ndo we know to what degree this remedy\nspecial caution to any proposal as disrup-\nmay cause deterioration of community\ntive of family life and interests-and ul-\nand parental support of public schools,\ntimately of education itself-as extensive\nor divert attention from the paramount\ntransportation of elementary-age chil-\ngoal of quality in education to a peren-\ndren solely for desegregation purposes.\nnially divisive debate over who is to be\nAs a minimum, this Court should not re-\ntransported where.\nquire school boards to engage in the un-\nnecessary transportation away from\nThe problem addressed in this opinion\ntheir neighborhoods of elementary age\nhas perplexed courts, school officials,\nchildren. 31 It is at this age level that\n31. There may well be advantages in com-\n2706-2707. But in the balancing of all\nmencing the integrative experiences at an\nrelevant interests, the advantages of an\nearly age, as young children may be less\nearly integrative experience must, and in\nlikely than older children and adults to\nall fairness should, be weighed against\ndevelop an inhibiting racial consciousness.\nother relevant advantages and disadvan-\nThese advantages should be considered as\ntages and in light of the demographic\nschool boards make the various decisions\ncharacteristics of the particular commun-\nwith the view to achieving and preserving\nity.\nan integrated school system. Supra, at\n413 U.S. 253\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2719\nCite as 93 S.Ct. 26S6 (1973)\nneighborhood education performs its\nhave not contributed in some/measure to 253\nmost vital role. It is with respect to\nthe degree of segregation which still\nchildren of tender years that the great-\nprevails. Instead of recognizing the\nest concern exists for their physical and\nreality of similar multiple segregative\npsychological health. It is also here,\ncauses in school districts throughout the\n252 at the elementary school, that the rights\ncountry, the Court persists in a distinc-\nof parents and children are most sharp-\ntion whose duality operates unfairly on\nly implicated.³²\nlocal communities in one section of the\ncountry and on minority children in the\nIV\nothers.\nThe existing state of law has failed to\nThe second issue relates to the ambi-\nshed light and provide guidance on the\nguities of Swann and the judicial disre-\ntwo issues addressed in this opinion:\ngard of legitimate community and indi-\n(i) whether a constitutional rule of uni-\nvidual interests in framing equitable de-\nform, national application should be\ncrees. In the absence of a more flexible\nadopted with respect to our national\nand reasonable standard than that im-\nproblem of school desegregation and (ii),\nposed by district courts after Swann,\nif so, whether the ambiguities of Swann\nthe desegregation which will now be de-\nconstrued to date almost uniformly in\ncreed in Denver and other major cities\nfavor of extensive transportation, should\nmay well involve even more extensive\nbe redefined to restore a more viable\ntransportation than has been witnessed\nbalance among the various interests\nup to this time.\nwhich are involved. With all deference,\nIt is well to remember that the course\nit seems to me that the Court today has\nwe are running is a long one and the\naddressed neither of these issues in a\ngoal sought in the end-so often over-\nway that will afford adequate guidance\nlooked-is the best possible educational\nto the courts below in this case or lead\nopportunity for all children. Communi-\nto a rational, coherent national policy.\nties deserve the freedom and the incen-\nThe Court has chosen, rather, to ad-\ntive to turn their attention and energies\nhere to the de facto/de jure distinction\nto this goal of quality education, free\nunder circumstances, and upon a ration-\nfrom protracted and debilitating battles\nale, which can only lead to increased and\nover court-ordered student transporta-\ninconclusive litigation, and-especially\ntion. The single most disruptive ele-\nregrettable-to deferment of a national-\nment in education today is the wide-\nly consistent judicial position on this\nspread use of compulsory transportation,\nsubject. There is, of course, state ac-\nespecially at elementary grade levels.\ntion in every school district in the land.\nThis has risked distracting and divert-\nThe public schools always have been\ning attention from basic educational\nfunded and operated by States and their\nends, dividing and embittering communi-\nlocal subdivisions. It is true that segre-\nties, and exacerbating, rather than amel-\ngated schools, even in the cities of the\niorating, interracial friction and misun-\nSouth, are in large- part the product of\nderstanding. It is time to return to a\nsocial and economic factors-and the re-\nmore balanced evaluation of the recog-\nsulting residential patterns. But there\nnized interests of our society in achiev-\nis also not a school district in the United\ning desegregation with other educational\nStates, with any significant minority\nand societal interests a community may\nschool population, in which the school\nlegitimately assert. This will help as-\nauthorities-in one way or the other—\nsure that integrated school systems will\n32. While greater transportation of\nrespect. It would ultimately be wisest,\nsecondary school students might be per-\nwhere there is no absence of good faith,\nmitted, even at this level the desire of a\nto permit affected communities to decide\ncommunity for racially neutral neighbor-\nthis delicate issue of student transporta-\nhood schools should command judicial\ntion on their own.\n2720\n93 SUPREME COURT REPORTER\n413 U.S. 253\nbe established and maintained by ration-\nprived of their constitutional right to\nal action, will be better understood and\nequal protection of the laws just as sure-\nsupported by parents and children of\nly as were the plaintiffs in Brown V.\nboth races, and will promote the endur-\nBoard of Education by the statutorily\ning qualities of an integrated society SO\nrequired segregation in that case. But\nessential to its genuine success.\nthe fact that invidious racial discrimina-\n255\ntion is prohibited by the Constitution in\n[254 Mr. Justice REHNQUIST, dissenting.\nthe North as well as the South must not\nbe allowed to obscure the equally impor-\nI\ntant fact that the consequences of ma-\nThe Court notes at the outset of its\nnipulative drawing of attendance zones\nopinion the differences between the\nin a school district the size of Denver\nclaims made by the plaintiffs in this\ndoes not necessarily result in denial of\ncase and the classical \"de jure\" type of\nequal protection to all minority students\nclaims made by plaintiffs in cases such\nwithin that district. There are signifi-\nas Brown V. Board of Education, 347 U.\ncant differences between the proof\nS. 483, 74 S.Ct. 686, 98 L.Ed. 873\nwhich would support a claim such as that\n(1954), and its progeny. I think the\nalleged by plaintiffs in this case, and the\nsimilarities and differences, not only in\ntotal segregation required by statute\nthe claims, but in the nature of the con-\nwhich existed in Brown.\nstitutional violation, deserve somewhat\nThe Court's opinion obscures these\nmore attention than the Court gives\nfactual differences between the situation\nthem.\nshown by the record to have existed in\nIn Brown, the Court held unconstitu-\nDenver and the situations dealt with in\ntional statutes then prevalent in South-\nearlier school desegregation opinions of\nern and border States mandating that\nthe Court. The Court states, supra, at\nNegro children and white children at-\n2693, that \"[w]e have never suggested\ntend separate schools. Under such a\nthat plaintiffs in school desegregation\nstatute, of course, every child in the\ncases must bear the burden of proving\nschool system is segregated by race, and\nthe elements of de jure segregation as to\nthere is no racial mixing whatever in\neach and every school or each and every\nthe population of any particular school.\nstudent within the school system. Rath-\ner, we have held that where plaintiffs\nIt is conceded that the State of Colo-\nprove that a current condition of segre-\nrado and the city of Denver have never\ngated schooling exists within a school\nhad a statute or ordinance of that de-\ndistrict where a dual system was com-\nscription. The claim made by these\npelled or authorized by statute at the\nplaintiffs, as described in the Court's\ntime of our decision in Brown V. Board\nopinion, is that the School Board by \"use\nof Education, 347 U.S. 483, 74 S.Ct. 686,\nof various techniques such as the manip-\n98 L.Ed. 873 (1954) (Brown I), the\nulation of student attendance zones,\nState automatically assumes an affirma-\nschoolsite selection and a neighborhood\ntive duty 'to effectuate a transition to\nschool policy\" took race into account in\na racially nondiscriminatory school sys-\nmaking school assignments in such a\ntem,' Brown V. Board of Education, 349\nway as to lessen that mixing of races\nU.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed.\nwhich would have resulted from a racial-\n1083 (1955) (Brown II)\n\"\nly neutral policy of school assignment. If\nsuch claims are proved, those minority\nThat statement is, of course, correct in\nstudents who as a result of such manip-\nthe Brown context, but in the Brown\nulative techniques are forced to attend\ncases and later ones that have come be-\nschools other than those that they would\nfore the Court the situation which had\nhave attended had attendance zones been\ninvariably obtained at one time was a\nneutrally drawn are undoubtedly de-\n\"dual\" school system mandated by law,\n413 U.S. 257\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2721\nCite as 93 S.Ct. 2686 (1973)\nby a law which prohibited Negroes and\nracial mixing in the schools was forbid-\nwhites from attending the same schools.\nden by law.\nSince under Brown such a law deprived\nUnderlying the Court's entire opinion\n257\neach Negro child of the equal protection\nis its apparent thesis that a district\nof the laws, there was no need to prove\njudge is at least permitted to find that\n1256 the elements of de jure segregation as\nif a single attendance zone between two\nto each and every school,\" since the law\nindividual schools in the large metropoli-\nitself had required just that sort of\ntan district is found by him to have\nsegregation.\nbeen \"gerrymandered,\" the school dis-\nBut in a school district the size of\ntrict is guilty of operating a \"dual\"\nDenver's, it is quite conceivable that the\nschool system, and is apparently a candi-\nSchool Board might have engaged in the\ndate for what is in practice, a federal re-\nracial gerrymandering of the attendance\nceivership. Not only the language of\nboundary between two particular schools\nthe Court in the opinion, but its reliance\nin order to keep one largely Negro and\non the case of Green V. County School\nHispano, and the other largely Anglo, as\nBoard, 391 U.S. 430, 437-438, 88 S.Ct.\nthe District Court found to have been\n1689, 1693-1694, 20 L.Ed.2d 716 (1968),\nthe fact in this case. Such action would\nindicates that such would be the case.\nhave deprived affected minority students\nIt would therefore presumably be open\nwho were the victims of such gerryman-\nto the District Court to require, inter\ndering of their constitutional right to\nalia, that pupils be transported great\nequal protection of the laws. But if the\ndistances throughout the district to and\nschool board had been evenhanded in its\nfrom schools whose attendance zones\ndrawing of the attendance lines for oth-\nhave not been gerrymandered. Yet, un-\ner schools in the district, minority stu-\nless the Equal Protection Clause of the\ndents required to attend other schools\nFourteenth Amendment now be held to\nwithin the district would have suffered\nembody a principle of \"taint,\" found in\nno such deprivation. It certainly would\nsome primitive legal systems but dis-\nnot reflect normal English usage to de-\ncarded centuries ago in ours, such a re-\nscribe the entire district as \"segregated\"\nsult can only be described as the product\non such a state of facts, and it would be\nof judicial fiat.\na quite unprecedented application of\nGreen, supra, represented a marked\nprinciples of equitable relief to deter-\nmine that if the gerrymandering of one\nextension of the principles of Brown V.\nBoard of Education, supra. The Court\nattendance zone were proved, particular\nin Green said:\nracial mixtures could be required by a\nfederal district court for every school in\n\"It is of course true that for the time\nthe district.\nimmediately after Brown II [349 U.S.\nIt is quite possible, of course, that a\n294 [75 S.Ct. 753, 99 L.Ed. 1083]] the\nschool district purporting to adopt ra-\nconcern was with making an initial\ncially neutral boundary zones might,\nbreak in a long-established pattern of\nwith respect to every such zone, invidi-\nexcluding Negro children from schools\nously discriminate against minorities, SO\nattended by white children.\nas to produce substantially the same re-\nUnder Brown II that immediate goal\nsult as was produced by the statutorily\nwas only the first step, however. The\ndecreed segregation involved in Brown.\ntransition to a unitary, nonracial sys-\nIf that were the case, the consequences\ntem of public education was and is the\nwould necessarily have to be the same as\nultimate end to be brought about\n\"\nwere the consequences in Brown. But,\n391 U.S., at 435-436, 88\nin the absence of a statute requiring\nS.Ct., at 1693.\nsegregation, there must necessarily be\n\"Brown II was a call for the dis-\nthe sort of factual inquiry which was\nmantling of well-entrenched dual sys-\nunnecessary in those jurisdictions where\ntems tempered by an awareness that\n93 S.Ct.-171\n2722\n93 SUPREME COURT REPORTER\n413 U.S. 257\ncomplex and multifaceted problems\ncore area schools was the result of dis-\n[258\nwould arise which would require time\ncriminatory action on the part of the\nand flexibility for a successful resolu-\nschool board. The District Court is said\ntion. School boards such as the re-\nto have \"fractionated\" the district, supra,\nspondent then operating state-com-\nat 2689, and to have \"held that its find-\npelled dual systems were nevertheless\ning of intentional segregation in Park\nclearly charged with the affirmative\nHill was not in any sense material to the\nduty to take whatever steps might be\nquestion of segregative intent in other\nnecessary to convert to a unitary sys-\nareas of the city,\" ibid. It is difficult\ntem in which racial discrimination\nto know what the Court means by the\nwould be eliminated root and branch.\"\nfirst of these references, and even more\nId., at 437-438, 88 S.Ct., at 1694.\ndifficult to justify the second in the\nThe drastic extension of Brown which\nlight of the District Court's opinion.\nGreen represented was barely, if at all,\nIf by \"fractionating\" the district, the\nexplicated in the latter opinion. To re-\nCourt means that the District Court\nquire that a genuinely \"dual\" system be\ntreated together events that occurred\ndisestablished, in the sense that the as-\nduring the same time period, and that it\nsignment of a child to a particular\ntreated those events separately from\nschool is not made to depend on his race\nevents that occurred during another\nis one thing. To require that school\ntime span this is undoubtedly correct.\nboards affirmatively undertake to\nThis is the approach followed by most\nachieve racial mixing in schools where\nexperienced and careful finders of fact.\nsuch mixing is not achieved in sufficient\ndegree by neutrally drawn boundary\nIn commencing that part of its com-\nlines is quite obviously something else.\nprehensive opinion which dealt with the\nThe Court's own language in Green\n\"core area\" schools, the District Court\nmakes it unmistakably clear that this\nobserved:\nsignificant extension of Brown's prohi-\n\"The evidentiary as well as the legal\nbition against discrimination, and the\napproach to the remaining schools is\nconversion of that prohibition into an\nquite different from that which has\naffirmative duty to integrate, was made\nbeen outlined above. For one thing,\nin the context of a school system which\nthe concentrations of minorities oc-\nhad for a number of years rigidly ex-\ncurred at an earlier date and, in some\ncluded Negroes from attending the same\ninstances, prior to the Brown decision\nschools as were attended by whites.\nby the Supreme Court. Community\nWhatever may be the soundness of that\nattitudes were different, including the\ndecision in the context of a genuinely\nattitudes of the School Board mem-\n\"dual\" school system, where segregation\nbers. Furthermore, the transitions\nof the races had once been mandated by\nwere much more gradual and less per-\nlaw, I can see no constitutional justifica-\nceptible than they were in the Park\ntion for it in a situation such as that\nHill schools. 313 F.Supp. 61, 69.\nwhich the record shows to have obtained\n(Emphasis supplied.)\nin Denver.\nThe District Court noted, in its opin-\nion of July 31, 1969, 303 F.Supp. 279,\nII\nthe differentiation that the plaintiffs\nThe Court's opinion gives lip service\nthemselves had made between the so-\nto the notion that the inquiry as to\ncalled \"Park Hill\" schools and I the 1260\nwhether or not the Denver school dis-\n\"core area\" schools. The plaintiffs had\ntrict was \"segregated\" is a factual one,\nsought a preliminary injunction prohib-\n1259 though it refersin various critical lan-\niting the school board from rescinding\nguage to the District Court's refusal to\nthree resolutions which had been adopt-\nfind that minority concentrations in the\ned by a differently composed school\n413 U.S. 262 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2723\nCite as 93 S.Ct. 2686 (1973)\nboard earlier in 1969 and which would\nThe allegedly discriminatory acts with\nhave redrawn school boundary lines in\nrespect to the \"core area\" schools-New\nthe Park Hill area to achieve greater in-\nManual High School, Cole Junior High\ntegration. In its opinion granting that\nSchool, Morey Junior High School, and\ninjunction, the District Court said:\nBoulevard and Columbine Elementary\nSchools-took place between the years\n\"Attention at this hearing has fo-\n1952 and 1961. They took place, as indi-\ncused primarily on the schools in\ncated by the references to the District\nnortheast Denver, and particularly on\nCourt's opinion noted above, not in a\nthe area which is commonly called\ncontext of a rapidly expanding Negro\nPark Hill. The alleged segregated\npopulation, but in a context of a rela-\nschools, elementary and junior high\ntively fixed area of the city that had for\nschools in this area, have acquired\nan indefinite period of time been pre-\ntheir character as such during the past\ndominantly Negro.\nten years. The primary reason for\nthis has been the migration of the\nThus, quite contrary to the intimation\nNegro community eastward from a\nof virtual arbitrariness contained in the\nconfined community surrounding what\nCourt's opinion, the District Court's sep-\nis commonly called 'Five Points.' Be-\narate treatment of the claims respecting\nfore 1950 the Negroes all lived in a\nthese two separate areas was absolutely\ncommunity bounded roughly by 20th\nnecessary if a careful factual determi-\nAvenue on the south, 20th Street on\nnation, rather than a jumbled hash of\nthe west, York Street on the east, and\nunrelated events, was to emerge from\n38th Avenue on the north. The schools\nthe fact-finding process. The \"intent\"\nin this area were, and are now, largely\nwith which a public body performs an\nNegro schools. However, we are not\nofficial act is difficult enough to ascer-\npresently concerned with the validity\ntain under the most favorable circum-\nof this condition. During this period\nstances. See Palmer V. Thompson, 403\nthe Negro population was relatively\nU.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438\nsmall, and this condition had developed\n(1971) ; McGinnis V. Royster, 410 U.S.\nover a long period of time. However,\n263, 93 S.Ct. 1055, 35 L.Ed.2d 282\nby 1960 and, indeed, at the present\n(1973). Far greater difficulty is en-\ntime this population is sizeable. As\ncountered if we are to assess the in-\nthe population has expanded the move\ntentions with which official acts of\nhas been to the east, first to Colorado\na school board are performed over a pe-\nBoulevard, a natural dividing line, and\nriod of years. Not only does the board\nlater beyond Colorado Boulevard, but\nconsist of a number of members, but the\nwithin a narrow corridor-more or\nmembership customarily turns over as a\nless fixed north-south boundaries.\nresult of frequent periodic elections.\nThe migration caused these areas to\nIndeed, it was as a result of the 1969\nbecome substantially Negro and segre-\nelection for membership on the Denver\ngated.\" 303 F.Supp. 279, 282.\nSchool Board that the Board's policy\nwhich had previously favored the\nFurther reference to the District\ncorrection of racial imbalance by Timple- |262\n1261 Court's several opinions shows that the\nmentation of resolutions was reversed by\nallegedly discriminatory acts of the\nthe election of new members to the\nSchool Board in the Park Hill area oc-\nBoard.\ncurred between 1960 and 1969, in the\ncontext of a steadily expanding Negro\nThese difficulties obviously do not\nschool population in the Park Hill area\nmean that the inquiry must be aban-\ndoned, but they do suggest that the care\nand heightened sensitivity on the part of\nwith which the District Court conducted\nthe community to the problems raised by\nit in this case is an absolutely essential\nintegration and segregation.\ningredient to its successful conclusion.\n2724\n93 SUPREME COURT REPORTER\n413 U.S. 262\nThe Court's bald statement that the\nfinders of fact, concluding as a part of\nDistrict Court \"held that its finding of\nthe fact-finding process that intent with\nintentional segregation in Park Hill was\nrespect to one act may support a conclu-\nnot in any sense material to the question\nsion of a like intent with respect to an-\nof segregative intent in other areas of\nother. This is but a restatement of the\nthe city\" is flatly belied by the following\nprinciple of which the District Court\nstatement in the District Court's opin-\nshowed it was aware. And, obviously,\nion:\nopinions of courts of appeals upholding\n\"Although past discriminatory acts\nsuch findings of the District Court do\nmay not be a substantial factor con-\nnot themselves support any broader\ntributing to present segregation, they\nproposition than do the opinions of the\nmay nevertheless be probative on the\nDistrict Court in question.\nissue of the segregative purpose of\nother discriminatory acts which are in\nChambers V. Hendersonville City\nfact a substantial factor in causing a\nBoard of Education, 364 F.2d 189 (CA4\npresent segregated situation.\" 313 F.\n1966), and North Carolina Teachers\nSupp., at 74-75, n. 18.\nAssn. V. Asheboro City Board of Ed-\nucation, 393 F.2d 736 (CA4 1968), in-\nThus, it is apparent that the District\nvolved a background of segregation by a\nCourt was fully aware that it might take\nlaw in the State of North Carolina and\ninto consideration the intention with\n\"the failure of the public school system\nwhich it found the School Board to have\nto desegregate in compliance with the\nperformed one act in assessing its inten-\nmandate of Brown until forced to do so\ntion in performing another act. This is\nby litigation.\" 364 F.2d, at 192. The\nthe most that the references in the\ncourts held that the decimation in the\nCourt's opinion to evidentiary treatises\nranks of the Negro teachers while white\nsuch as Wigmore and McCormick sup-\nteachers were unaffected, raised an in-\nport. And it should be noted that the\nference of discrimination which cast\ncases cited by the Court, and by the au-\nupon the school board the burden of\nthors of the treatises, almost invariably\njustifying such decimation. In each\ndeal with the intention of a particular\ncase, the school board had offered vir-\nindividual or individuals, and not with\ntually no evidence supporting any non-\nthe \"intention\" of a public body whose\ndiscriminatory basis for the result reach-\nmembership is constantly changing.\ned. The cases are thus wholly different\nThe Court's opinion totally confuses\nin their factual background from the\nthe concept of a permissible inference in\ncase now before the Court.\nsuch a situation, of which the District\nCourt indicated it was well aware, with\nAlso worthy of note is the fact that 1264\n263 what the Court calls a \"presumption,\"\nneither in Chambers nor in Asheboro\nwhich apparently \"shifts\ndid the Court of Appeals remand for a\nthe\nburden of proving\" to the defendant\nfurther hearing, but in effect ordered\nschool authority. No case from this\njudgments for the appellants on the is-\nCourt has ever gone further in this area\nsues considered. This amounted to a de-\nthan to suggest that a finding of intent\ntermination that the factual finding of\nin one factual situation may support a\nthe District Court on that issue was\nfinding of fact in another related factual\n\"clearly erroneous,\" and the statement\nsituation involving the same factor, a\nas to presumption was a statement as to\nprinciple with which, as indicated above,\nthe appellate court's method of evaluat-\nthe District Court was thoroughly fa-\ning the factual finding. This Court is\nmiliar.\nin quite a different position in reviewing\nthis case, with the factual finding of the\nThe District Court cases cited by the\nDistrict Court having been affirmed by\nCourt represent almost entirely the opin-\nthe Court of Appeals for the Tenth Cir-\nions of judges who were themselves\ncuit than was the Court of Appeals for\n413 U.S. 265 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2725\nCite as 93 S.Ct. 2686 (1973)\nthe Fourth Circuit in reviewing the fac-\nly sympathetic to the plaintiffs' claims\ntual findings of the District Courts that\ngave them the full evidentiary hearing\nwere before it in Chambers and in Ashe-\nto which they were entitled and careful-\n265\nboro. Indeed, it would be contrary to\nly considered all of the evidence before\nsettled principles for this Court to upset\nhim. He showed full awareness of the\na factual finding sustained by the Court\nevidentiary principle that he might infer\nof Appeals. \"A seasoned and wise rule\nfrom the \"segregative intent\" with\nof this Court makes concurrent findings\nwhich he found the Board to have acted\nof two courts below final here in the ab-\nin the Park Hill area a like intent with\nsence of very exceptional showing of er-\nrespect to the core area, but he deliber-\nror.\" Comstock V. Group of Institutional\nately declined to do SO. This was his\nInvestors, 335 U.S. 211, 214, 68 S.Ct.\nprerogative as the finder of fact, and\n1454, 1456, 92 L.Ed. 1911 (1948).\nhis conclusion upon its affirmance by\nThe Court, doubtless realizing the dif-\nthe Court of Appeals is binding upon us.\nficulty of justifying an outright rever-\nIII\nsal, instead remands for further factual\ndetermination under newly enunciated\nThe Court has taken a long leap in\nstandards governing the evidentiary\nthis area of constitutional law in equat-\ntreatment of the finding as to Park Hill\ning the district-wide consequences of\nby the District Court. These standards\ngerrymandering individual attendance\ncall in some parts of the opinion for es-\nzones in a district where separation of\ntablishing a presumption, in other parts\nthe races was never required by law with\nfor shifting the burden of proof, and in\nstatutes or ordinances in other jurisdic-\nother parts for recognizing a prima facie\ntions which did so require. It then adds\ncase. Quite apart from my disagree-\nto this potpourri a confusing enunciation\nment with the majority on its con-\nof evidentiary rules in order to make it\nstitutional law, I cannot believe it is a\nmore likely that the trial court will on re-\nservice to any of the parties to this liti-\nmand reach the result which the Court\ngation to require further factual deter-\napparently wants it to reach. Since I\nmination under such a vague and impre-\nbelieve neither of these steps is justified\ncise mandate. But, more fundamentally,\nby prior decisions of this Court, I dis-\nI believe that a District Judge thorough-\nsent.\n2726\n93 SUPREME COURT REPORTER\nAPPENDIX\nCENTRE\nADAMS\nCOUNTY\n******\na\nSTS 17\nMACH COURT\n(sire as 2\nREMINGTON\nPelicie\nE\n100\nGARDEN PLACE\nSITE 4\nT gl\nSMEDLE\nSITE\nHOCACE KANN JUNIOR MOH:\nOLUMBIAN\nSITE\n85\nSITE 13\n20000\nD\n7\nWYATT\nINTANT-WEBSTER\nSITE 11\nSITE\n84\n:\nMITCHELL\nSITE 30\n00\nORTH NON\nSITE\nR\nMASHLAND\nGILPIN\nSITE 2\nMM\nCROFTON\nSITE 47\nDD\nWHITTER\nEVARD\nSITE\n.\n$\n-\nS\nEBERT\nSITE 61\nOETTCHER\nSITE 84)\nOPPORTUNITY\n13\nIf\nWYMAN\nRTA\n$\nADMINISTRATION\nBUILDING\nSITE 21J\nSITE\nMAILSON\nACTE\nLOT, DPS\nSITE\n01\n123\nE\nthe\nSERVICE MLDING\n1278 K SITE 24\n-\nLAU\nC.\nFAIRVIEW\nGREENLEE\nEVANS\nSITE 57\nSITE I\nSITE BY\nNEW\n*****\nWEST HIGH\nN\n:\nLL Used\nN\nMOORE\n1001\nSTS 14\nELMWOOD\nThe\nSITE 9\nDIE\nDIVICE BURLDING\nSITE 112\nBAKER JUNIOR HIGH\n7\nFAIRMONT\nSITE 63\n15478\nx\n-\nKEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO\n2727\nCite as 93 S.Ct. 26S6 (1973)\nASAMS COUNTY\nSWANSEA\nmill\n000\nHARRINGTON\nSITE 67\n22\n0000000\nSMITH\nSITE 114\n1000\n1000 0000\nSTEDMAN\nHALLETT\nBARRETT\nSITE 64\nSITE 92\nSITE 103\nCOLUMBINE\nPARK\nSITE\nPARK\nhdl\n0000\nGOVE JUN\n00000\nN\nSTEVENS\nTELLER\nELEMENTARY SCHOOL\nSITE 31\nSITE\nATTENDANCE AREAS\nw+ W E\nS\nIIIII\nSCHOOL BOUNDARIES\n0000000000\nBUILDING AND SITE LOCATIONS\nUNDER 10 PERCENT ANGLO\nFORD LIBRARY\nBROMWELL\n10 TO 20 PERCENT ANGLO\nSITE\n-\nPREDOMINANTLY HISPANO"
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