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Busing - Background Book (4)
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James M. Cannon Files (Ford Administration)
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The original documents are located in Box 6, folder "Busing - Background Book (4)" of the
James M. Cannon Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 6 of the James M. Cannon Files at the Gerald R. Ford Presidential Library
413 U.S. 213 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2699
Cite as 93 S.Ct. 2686 (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.C. 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
"
'Racially neutral' assign-
Board cannot disprove segregative in-
ment plans proposed by school au-
tent, it can rebut the prima facie case
thorities to a district court may be
only by showing that its past segrega-
inadequate; such plans may fail to
tive acts did not create or contribute to
counteract the continuing effects of
HURD
the current segregated condition of the
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
to achieve or maintain an artificial
invoked at trial its "neighborhood school
racial separation. When school au-
policy" as explaining racial and ethnic
thorities present a district court
concentrations within the core city
with a 'loaded game board,' affirm-
1212 schools, arguing that since the core city
ative action in the form of reme-
area population had long been Negro and
dial altering of attendance zones is
Hispano, the concentrations were neces-
proper to achieve truly nondiscrimin-
sarily the result of residential patterns
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 [213
school policy" of itself will justify racial
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
is modified to vacate instead of reverse
duct over almost a decade after 1960 in
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
is remanded to the District Court for
stitutes the entire school system a dual
school system. If the District Court de-
further proceedings consistent with this
termines that the Denver school system
opinion.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
1214 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 theiright
1217
system-wide basis." Id., at 863-864
to seek such companions as he desires.
These latter acts are often said to cre-
But a State is barred from creating by
216
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-
1218 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 [219
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,
9. According to the 1971 Department of
arduous fight that deserved to be fought
Health, Education, and Welfare (HEW)
and needed to be won.
estimate, 43.9% of Negro pupils attended
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 S0 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 1),
753, 99 L.Ed. 1083 (1955), did not re-
1220 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 bane)
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
But the doubt as to whether the af-
1271. In so doing, the Court refrained
firmative-duty concept would flower into
from even considering whether the evo-
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.
Charlotte-Mecklenburg Board of Educa-
whatever logic once supported the de
tion, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.
facto/de jure distinction. In imposing
on metropolitan southern school districts
2d 554 (1971), in which the duty artic-
1222 ulated in Green was applied to thejurban
an affirmative duty, entailing large-
school system of metropolitan Charlotte,
scale transportation of pupils, to elimi-
North Carolina. In describing the resi-
nate segregation in the schools, the
dential patterns in Charlotte, the Court
Court required these districts to alle-
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 Rancy
"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. 26S6 (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
to (i) integrate faculties and adminis-
"Such an opportunity, where the state
tration; (ii) scrupulously assure equali-
has undertaken to provide it, is a
ty of facilities, instruction, and curricu-
right which must be made available to
lum opportunities throughout the dis-
all on equal terms." 347 U.S., at 493,
trict; (iii) utilize their authority to
74 S.Ct. at 691.
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
227
this Court have added a significant gloss
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
1226 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
28
solpervasive 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-
first time toward breaking down past
tages minority children as well. As the
sectional disparities, but it clings ten-
Fifth Circuit stated:
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.
1232 prior constitutional violat 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 30-83. 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 allegislative 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. 2686 (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
1236 ly the product of the action orlinaction
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-
239
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
triet 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. 2656 (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
practical flexibility in shaping its
of new schools should be ofjsuch a size 1241
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-
1240 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 genuine 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 useful 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).
93 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 jout-
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. 22 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 brondest 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 foreseeable future in racially
tion." 118 Cong.Ree. 5450 (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.2 Yet the I 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 1283.24 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 (CAS 1971) Northeross 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:
1246
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
to achieve the type of integration fre-
courts may have overlooked the fact that
the rights and interests of children af-
quently being ordered by district
courts.2 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-
quiring both initial capital outlays and
1248 time each day being transported to a
distant school suffers an impairment of
annual operating costs in the millions of
dollars.² And while constitutional re-
his liberty and his privacy. Not long
ago, James B. Conant wrote that "[a]t
quirements haveloften 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-
ments for literally hundreds of thou-
seems out of the question. A commu-
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.³ 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
250 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
Finally, courts in requiring SO far-
include the "adjusting and reconciling
[of] public and private needs," Brown
reaching a remedy as student transpor-
11, 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. 2656 (1973)
neighborhood
education
performs
its
have not contributed in somejmeasure to 1253
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
1254 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
each Negro child of the equal protection
1257
is its apparent thesis that a district
of the laws, there was no need to prove
judge is at least permitted to find that
256 '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
principles of equitable relief to deter-
Green, supra, represented a marked
mine that if the gerrymandering of one
extension of the principles of Brown V.
attendance zone were proved, particular
Board of Education, supra. The Court
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 arise1which 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 the 260
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 refers in 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 byjimple- 1262
[261 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
mean that the inquiry must be aban-
school population in the Park Hill area
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 264
1263 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 whichithey 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-
sal, instead remands for further factual
III
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.
FOR is
GERALD
RIVERSE
CEMETE
JOC
WYMAN
1stra ITJ
WYATT
SITE
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WHITTEN
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MITCHELL
NOSHWS
SITE 81
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GARDEN PLACE
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SITE 4
= 1
CROFTON
SITE 47 SITE 47
BURDING
SHERMAN
15 %
93 SUPREME COURT REPORTER
ADMINISTRATION
SITE
H
EVANS
APPENDIX
I
SITE
MYEC PARKING LOT, DPS
⑉
REPS
MANN JUNIOR HIGHL
SERVICE WILDING
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HTR 72 USA
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SITE 9
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underws.
aus
BRYANT-WEBSTER
SITE
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$ RUS
BEACH COURT
2
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SITE 57
GREAT
2726
COLUMINAN
HIGH
SITE
6
ORTH
SITE
INVICE BUILDING
SITE 118
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2727
Cite as 93 S.Ct. 2686 (1973)
ABAMS COUNTY
SITE
HARRINGTON
SITE 67
SMITH
SITE 114
:
STEDMAN
HALLETT
BARRETT
SITE 64
SITE 92
SITE 103
*******
COLUMBINS
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SITE
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STEVENS
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SITE 31
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ATTENDANCE AREAS
S
SCHOOL BOUNDARIES
BUILDING AND SITE LOCATIONS
UNDER 10 PERCENT ANGLO
10 TO 20 PERCENT ANGLO
PREDOMINANTLY HISPANO
3112
94 SUPREME COURT REPORTER
418 U.S. 717
418
418 U.S. 717, 41 L.Ed.2d 1069
to impose a multidistrict remedy for sin-
4. School
William G. MILLIKEN, Governor of
gle-district de jure segregation in the
Whi
Michigan, et al., Petitioners,
absence of findings that the other in-
bridge
V.
cluded districts had failed to operate un-
tional
Ronald BRADLEY and Richard Bradley,
itary school systems or had committed
relief
by their mother and next friend,
acts that effected segregation, in the ab-
may
Verda Bradley, et al.
sence of any claim or finding that school
mere
district boundary lines were established
trary
ALLEN PARK PUBLIC SCHOOLS et al.,
with the purpose of fostering racial seg-
United
Petitioners,
regation, and without affording a mean-
5. School
V.
ingful opportunity for the included
Ronald BRADLEY and Richard Bradley,
neighboring districts to present evidence
laws
by their mother and next friend,
or be heard on the propriety of a multi-
sacros
Verda Bradley, et al.
district remedy or on the question of
Fourt
constitutional violations by those dis-
have
The GROSSE POINTE PUBLIC SCHOOL
tricts.
dies.
SYSTEM, Petitioner,
Reversed and remanded.
6. School
V.
Mr. Justice Stewart concurred and
Ronald BRADLEY and Richard Bradley,
by their mother and next friend,
filed opinion.
autono
asider
Verda Bradley, et al.
Mr. Justice Douglas dissented and
remedi
Nos. 73-434, 73-435 and 73-436.
filed opinion.
district
Argued Feb. 27, 1974.
that
Mr. Justice White dissented and
tion ing
Decided July 25, 1974.
filed opinion in which Mr. Justice Doug-
signifi
las, Mr. Justice Brennan and Mr. Justice
district
Marshall, joined.
that
Parents, children and others insti-
Mr. Justice Marshall dissented and
or loc
tuted a class action against various state
school
and school district officials seeking re-
filed opinion in which Mr. Justice Doug-
las, Mr. Justice Brennan and Mr. Justice
cause
lief from alleged illegal racial segrega-
tion in the Detroit public school system.
White, joined.
7. Schi
On remand after two prior appeals, 433
F.2d 897 and 438 F.2d 945, the United
1. Constitutional Law -220
multid
States District Court for the Eastern
Doctrine of "separate but equal"
plan.
District of Michigan ruled that the sys-
has no place in field of public education,
segres
tem was an illegally segregated one, 338
since separate educational facilities are
school
F.Supp. 582, and, after the Court of Ap-
inherently unequal. U.S.C.A.Const.
of fin
peals dismissed appeals from orders re-
Amend. 14.
had
quiring submission of desegregation
tems
plans, 468 F.2d 902, directed preparation
2. Schools and School Districts -13
ed se
of a metropolitan desegregation plan,
Finding of district court that De-
sence;
345 F.Supp. 914, and purchase of
troit public school system was illegally
distri
school buses. The Court of Appeals
segregated on basis of race was not
with
affirmed the holding that a constitu-
plain error. Supreme Court Rules, rules
tion
tionally adequate system of desgregat-
23, subd. 1(c), 40, subd. 1(d) (2), 28 U.
oppor
ed schools could not be established
S.C.A.
distri
within the Detroit school district's geo-
on pl
graphic limits and that a multidistrict
3. Schools and School Districts -13
on qi
metropolitan plan was necessary, 484 F.
Desegregation, in sense of disman-
by th
2d 215, and defendants appealed. The
tling dual school system, does not re-
340.2
Supreme Court, Mr. Chief Justice Burg-
quire any particular racial balance in
340.1
er, held, inter alia, that it was improper
each school, grade or classroom.
192,
418 U.S. 717
MILLIKEN V. BRADLEY
3113
Cite as 94 S.Ct. 3112 (1974)
4. Schools and School Districts *=13
340.567, 340.569, 340.574, 340.575, 340.-
While boundary lines may be
582, 340.583-340.586, 340.589, 340.591,
bridged where there was been constitu-
340.594, 340.605, 340.609, 340.613, 340.-
tional violation calling for interdistrict
614, 340.643a, 340.711 et seq., 340.882,
relief, notion that school district lines
388.171a et seq., 388.182, 388.851; U.S.
may be casually ignored or treated as
C.A.Const. Amend. 14; M.C.L.A.Const.
mere administrative convenience is con-
1963, art. 8, § 2; Fed.Rules Civ.Proc.
trary to history of public education in
rules 19, 24(a, b), 28 U.S.C.A.; 28 U.S.
United States.
C.A. § 1291 (b); Supreme Court Rules,
5. Schools and School Districts 0=13
rules 23, subd. (c), 40, subd. 1(d) (2),
School district lines and present
28 U.S.C.A.
laws with respect to local control are not
8. Schools and School Districts -13
sacrosanet, and if they conflict with
Constitutional right of Negro chil-
Fourteenth Amendment, federal courts
dren residing in Detroit public school
have duty to prescribe appropriate reme-
district was only to attend unitary
dies. U.S.C.A.Const. Amend. 14.
school system in that district, and unless
officials drew district lines in discrimi-
6. Schools and School Districts 333
Before boundaries of separate and
natory fashion or arranged for white
autonomous school districts may be set
students residing in district to attend
aside by consolidating separate units for
schools in neighboring districts, they
remedial purposes or by imposing cross-
were under no constitutional duty to
district remedy, it must first be shown
make provisions for Negro students to
that there has been constitutional viola-
attend such schools.
tion within one district that produces
9. Schools and School Districts =13
significant segregative effect in another
It is not true that, whatever racial
district; specifically, it must be shown
make-up of school district population
that racially discriminatory acts of state
may be and however neutrally district
or local school districts, or of single
lines have been drawn and administered,
school district, have been substantial
schools are never "desegregated" as long
cause of interdistrict segregation.
as Negro students are in majority.
7. Schools and School Districts -13
10. Schools and School Districts -13
District court's action in ordering
Even accepting arguendo the cor-
multidistrict metropolitan desegregation
rectness of the theory that State of
plan to remedy single-district de jure
Michigan was derivatively responsible
segregation found in Detroit public
for Detroit board of education's actions
school system was improper in absence
which resulted in illegal racial segrega-
of findings that other included districts
tion within its school system, that deriv-
had failed to operate unitary school sys-
ative responsibility of State did not con-
tems or had committed acts that effect-
stitutionally justify or require adoption
ed segregation in Detroit system, in ab-
of multidistrict metropolitan desegrega-
sence of any claim or finding that school
tion plan involving neighboring districts
district boundary lines were established
which had not been affected by board's
with purpose of fostering racial segrega-
actions.
tion, and without affording meaningful
opportunity for included neighboring
11. Schools and School Districts
districts to present evidence or be heard
159 1/2
on propriety of multidistrict remedy or
Isolated instance wherein one sub-
on question of constitutional violations
urban school district contracted with il-
by those districts. M.C.L.A. §§ 340.26,
legally segregated urban district to have
340.27, 340.55, 340.77, 340.107, 340.113,
Negro high school students sent to pre-
340.148, 340.149, 340.165, 340.188, 340.-
dominantly Negro school in urban dis-
192, 340.352, 340.355, 340.356, 340.563,
trict did not justify adoption of multi-
4 S.Ct.-32
3114
94 SUPREME COURT REPORTER
418 U.S. 717
418 U.S.
district metropolitan desegregation plan
evidence that the suburban school dis-
fostering
potentially embracing 52 districts hav-
tricts had committed acts of de jure seg-
is
no
ing no responsibility for such allegedly
regation, the court appointed a panel to
included
segregative plan.
submit a plan for the Detroit schools
to preser
that would encompass an entire desig-
propried
Syllabus*
nated desegregation area consisting of
on then
53 of the 85 suburban school districts
Respondents brought this class ac-
tions by
tion, alleging that the Detroit public
plus Detroit, and ordered the Detroit
school system is racially segregated as a
Board to acquire at least 295 school bus-
ing as
result of the official policies and actions
es to provide transportation under an in-
of devel
of petitioner state and city officials, and
terim plan to be developed for the
plan whi
seeking implementation of a plan to
1972-1973 school year. The Court of
leave
eliminate the segregation and establish a
Appeals, affirming in part, held that the
unitary nonracial school system. The
record supported the District Court's
to the
District Court, after concluding that
finding as to the constitutional viola-
of
the
various acts by the petitioner Detroit
tions committed by the Detroit Board
The clear
Board of Education had created and per-
and the state officials; that therefore
Mecklen
the District Court was authorized and
petuated school segregation in Detroit,
U.S.
and that the acts of the Board, as a sub-
required to take effective measures to
that desi
ordinate entity of the State, were attrib-
desegregate the Detroit school system;
mantlins
utable to the State, ordered the Board to
and that a metropolitan area plan em-
require
submit Detroit-only desegregation plans.
bracing the 53 outlying districts was the
3125
The court also ordered the state officials
only feasible solution and was within the
to submit desegregation plans encom-
District Court's equity powers. But the
719
(b)
court remanded SO that all suburban
passing the three-county metropolitan
bridged
school districts that might be affected
has been
area, despite the fact that the 85 outlying
by a metropolitan remedy could be made
ing for
school districts in these three counties
parties and have an opportunity to be
trict Ifa
were not parties to the action and there
was no claim that they had committed
heard as to the scope and implementa-
or treats
constitutional violations. Subsequently,
tion of such a remedy, and vacated the
veniene
order as to the bus acquisitions, subject
outlying school districts were allowed to
public
to its reimposition at an appropriate
intervene, but were not permitted to as-
deeply
time. Held: The relief ordered by the
sert any claim or defense on issues pre-
District Court and affirmed by the
viously adjudicated or to reopen any is-
sue previously decided, but were allowed
Court of Appeals was based upon erro-
extensiv
neous standards and was unsupported by
merely to advise the court as to the pro-
ture
record evidence that acts of the outlying
priety of a metropolitan plan and to sub-
since
mit any objections, modifications, or al-
districts had any impact on the discrimi-
fect,
nation found to exist in the Detroit
ternatives to any such plan. Thereafter,
school
schools. A federal court may not impose
the District Court ruled that it was
a multidistrict, areawide remedy for
LIBRARY
as
proper to consider metropolitan plans
vast
that Detroit-only plans submitted by the
single-district de jure school segregation
since
violations, where there is no finding
Board and respondents were inadequate
that the other included school districts
problem
to accomplish desegregation, and that
tation
therefore it would seek a solution be-
have failed to operate unitary school
would
yond the limits of the Detroit School Dis-
systems or have committed acts that ef-
administs
trict, and concluded that "[s]chool dis-
fected segregation within the other dis-
of this
trict lines are simply matters of political
tricts, there is no claim or finding
convenience and may not be used to deny
that the school district boundary lines
(d)
constitutional rights." Without having
were established with the purpose of
trict
plas
structure
The syllabus constitutes no part of the
venience of the reader. See United States v.
trict Laws
opinion of the Court but has been prepared
Detroit Timber & Lumber Co., 200 U.S. 321,
come,
fis
by the Reporter of Decisions for the con-
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
418 U.S. 720
MILLIKEN V. BRADLEY
3115
Cite as 94 S.Ct. 3112 (1974)
fostering racial segregation, and there
thority" to resolve the complex opera-
is no meaningful opportunity for the
tional problems involved and thereafter
included neighboring school districts
a "school superintendent" for the entire
to present evidence or be heard on the
area, a task which few, if any, judges
propriety of a multidistrict remedy or
are qualified to perform and one which
on the question of constitutional viola-
would deprive the people of local control
tions by those districts. Pp. 3123-3131.
of schools through elected school boards.
(a) The District Court erred in us-
P. 3126.
ing as a standard the declared objective
(e) Before the boundaries of sepa-
of development of a metropolitan area
rate and autonomous school districts
plan which, upon implementation, would
may be set aside by consolidating the sep-
leave "no school, grade or classroom
arate units for remedial purposes or by
substantially disproportionate
imposing a cross-district remedy, it
to the overall pupil racial composition"
must be first shown that there has been
of the metropolitan area as a whole.
a constitutional violation within one dis-
The clear import of Swann V. Charlotte-
trict that produces a significant segre-
Mecklenburg Board of Education, 402
gative effect in another district; i. e.,
U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, is
specifically, it must be shown that ra-
that desegregation, in the sense of dis-
cially discriminatory acts of the state or
mantling a dual school system, does not
local school districts, or of a single
require any particular racial balance. P.
school district have been a substantial
3125.
cause of interdistrict segregation. P.
3127.
1719
(b) While boundary lines may be
bridged in circumstances where there
(f) With no showing of significant
has been a constitutional violation call-
violation by the 53 outlying school dis-
ing for inter-district relief, school dis-
tricts and no evidence of any interdis-
trict lines may not be casually ignored
trict violation or effect, the District
or treated as a mere administrative con-
Court transcended the original theory of
venience; substantial local control of
the case as framed by the pleadings, and
public education in this country is a
mandated a metropolitan area remedy,
deeply rooted tradition. Pp. 3125.
the approval of which would impose on
the outlying districts, not shown to have
(c) The interdistrict remedy could
committed any constitutional violation, a
extensively disrupt and alter the struc-
standard not previously hinted at in any
ture of public education in Michigan,
holding of this Court. P. 3127.
since that remedy would require, in ef-
(g) Assuming, arguendo, that the
fect, consolidation of 54 independent
State was derivatively responsible for
school districts historically administered
Detroit's segregated school conditions, it
as separate governmental units into a
does not follow that an interdistrict
720
vast new super school district, and,
remedy is constitutionally justified or
since-entirely apart from the logistical
required, since there has been virtually
problems attending large-scale transpor-
no showing that either the State or any
tation of students-the consolidation
of the 85 outlying districts engaged in
would generate other problems in the
any activity that had a cross-district ef-
fect. P. 3129.
administration, financing, and operation
of this new school system. P. 3125.
(h) An isolated instance of a possi-
ble segregative effect as between two of
(d) From the scope of the interdis-
the school districts involved would not
trict plan itself, absent a complete re-
justify the broad metropolitanwide rem-
structuring of the Michigan school dis-
edy contemplated, particularly since that
trict laws, the District Court would be-
remedy embraced 52 districts having no
come, first, a de facto "legislative au-
responsibility for the arrangement and
3116
94 SUPREME COURT REPORTER
418 U.S. 720
potentially involved 503,000 pupils in ad- the Advancement of Colored People
dition to Detroit's 276,000 pupils. P.
and individual parents and students, on
3129.
behalf of a class later defined by order
484 F.2d 215, reversed and remand-
of the United States District Court for
ed.
the Eastern District of Michigan, dated
February 16, 1971, to include "all school
children in the City of Detroit, Michigan,
Frank J. Kelley, Lansing, Mich., for
and all Detroit resident parents who
petitioners William G. Milliken et al.
have children of school age." The named
William M. Saxton, Detroit, Mich., for
defendants in the District Court in-
petitioners Allen Park Public Schools
cluded the Governor of Michigan, the
19
and Grosse Pointe Public School System
Attorney General, the State Board of
et al.
Education, the State Superintendent of
Public Instruction, the Board of Educa-
Solicitor Gen. Robert H. Bork for the
tion of the city of Detroit, its members,
United States, as amicus curiae, by spe-
the city's and its former superintendent
cial leave of Court.
of schools. The State of Michigan as
J. Harold Flannery, Cambridge, Mass.,
such is not a party to this litigation and
and Nathaniel R. Jones, New York City,
references to the State must be read as
for respondents.
references to the public officials, state
and local, through whom the State is
721
Mr. Chief Justice BURGER delivered
alleged to have acted. In their com-
the opinion of the Court.
plaint respondents attacked the consti-
We granted certiorari in these consoli-
tutionality of a statute of the State
dated cases to determine whether a fed-
of Michigan known as Act 48 of the
eral court may impose a multidistrict,
1970 Legislature on the ground that
areawide remedy to a single-district de
it put the State of Michigan in the posi-
jure segregation problem absent any
tion of unconstitutionally interfering
finding that the other included school
with the execution and operation of a
voluntary plan of partial high school de-
Bo
districts have failed to operate unitary
school systems within their districts, ab-
segregation, known as the April 7, 1970,
sent any claim or finding that the
Plan, which had been adopted by the De-
boundary lines of any affected school
troit Board of Education to be effective
district were established with the pur-
beginning with the fall 1970 semester. 723
pose of fostering racial segregation in
The complaint also alleged that the De-
724
public schools, absent any finding that
troit Public School System was and is
the included districts committed acts
segregated on the basis of race as a re-
which effected segregation within the
sult of the official policies and actions
722 other districts, and absent ajmeaningful
of the defendants and their predecessors
opportunity for the included neighboring
in office, and called for the implementa-
school districts to present evidence or be
tion of a plan that would eliminate "the
heard on the propriety of a multidistrict
racial identity of every school in the
remedy or on the question of constitu-
[Detroit] system and
main-
tional violations by those neighboring
tain now and hereafter a unitary, nonra-
districts.¹
cial school system."
Initially the matter was tried on re-
I
spondents' motion for a preliminary in-
The action was commenced in August
junction to restrain the enforcement of
1970 by the respondents, the Detroit
Act 48 so as to permit the April 7 Plan
Branch of the National Association for
to be implemented. On that issue, the
I. 484 F.2d 215 (CA6), cert. granted, 414 U.S.
2. The standing of the NAACP as a proper
1038, 94 S.Ct. 538, 38 L.Ed.2d 329 (1973).
party plaintiff was not contested in the trial
court and is not an issue in this case.
418 U.S. 725
MILLIKEN V. BRADLEY
3117
Cite as 04 S.Ct. 3112 (1974)
District Court ruled that respondents
finding that "Governmental actions and
were not entitled to a preliminary in-
inaction at all levels, federal, state and
junction since at that stage there was no
local, have combined, with those of
proof that Detroit had a dual segregated
private organizations, such as loaning
school system. On appeal, the Court of
institutions and real estate associations
Appeals found that the "implementation
and brokerage firms, to establish and
of the April 7 plan was [unconstitu-
to maintain the pattern of residential
tionally] thwarted by State action in the
segregation throughout the Detroit
form of the Act of the Legislature of
metropolitan area." 338 F.Supp. 582,
Michigan," 433 F.2d 897, 902 (CA6
587 (ED Mich.1971). While still ad-
1970), and that such action could not be
dressing a Detroit-only violation, the
interposed to delay, obstruct, or nullify
District Court reasoned:
steps lawfully taken for the purpose of
protecting rights guaranteed by the
"While it would be unfair to charge
Fourteenth Amendment. The case was
the present defendants with what oth-
remanded to the District Court for an
er governmental officers or agencies
expedited trial on the merits.
have done, it can be said that the ac-
tions or the failure to act by the re-
On remand, the respondents moved for
sponsible school authorities, both city
immediate implementation of the April 7
and state, were linked to that of these
Plan in order to remedy the deprivation
other governmental units. When we
of the claimed constitutional rights. In
speak of governmental action we
response, the School Board suggested two
should not view the different agencies
other plans, along with the April 7 Plan,
as a collection of unrelated units.
and urged that top priority be assigned
Perhaps the most that can be said is
to the so-called "Magnet Plan" which
that all of them, including the school
was "designed to attract children to a
authorities, are, in part, responsible
school because of its superior curricu-
for the segregated condition which ex-
lum." The District Court approved the
ists. And we note that just as there
Board's Magnet Plan, and respondents
is an interaction between residential
again appealed to the Court of Appeals,
patterns and the racial composition of
moving for summary reversal. The
the schools, SO there is a corresponding
Court of Appeals refused to pass on the
effect on the residential pattern by
merits of the Magnet Plan and ruled
the racial composition of the schools."
1724 that the District Court had not abused
Ibid.
its discretion in refusing to adopt the
April 7 Plan without an evidentiary
The District Court found that the De-
725
hearing. The case was again remanded
troit Board of Education created and
with instructions to proceed immediately
maintained optional attendance zones 3
to a trial on the merits of respondents'
within Detroit neighborhoods undergo-
substantive allegations concerning the
ing racial transition and between high
Detroit school system. 438 F.2d 945
school attendance areas of opposite pre-
(CA6 1971).
dominant racial compositions. These
zones, the court found, had the "natural,
The trial of the issue of segregation
probable, foreseeable and actual effect"
in the Detroit school system began on
of allowing white pupils to escape iden-
April 6, 1971, and continued through
tifiably Negro schools. Ibid. Similar-
July 22, 1971, consuming some 41 trial
ly, the District Court found that Detroit
days. On September 27, 1971, the Dis-
school attendance zones had been drawn
trict Court issued its findings and con-
along north-south boundary lines despite
clusions on the issue of segregation,
the Detroit Board's awareness that
3. Optional zones, sometimes referred to as
choice of attendance at one of two high
dual zones or dual overlapping zones, pro-
schools.
vide pupils living within certain areas a
3118
94 SUPREME COURT REPORTER
418 U.S. 725
418
drawing boundary lines in an east-
great majority of schools being built in
and
west direction would result in signifi-
either overwhelmingly all-Negro or all-
tion
cantly greater desegregation. Again,
white neighborhoods SO that the new
The
the District Court concluded, the nat-
schools opened as predominantly one-
acts
ural and actual effect of these acts
race schools. Thus, of the 14 schools
as
was the creation and perpetuation of
which opened for use in 1970-1971, 11
were
school segregation within Detroit.
opened over 90% Negro and one opened
gansth
less than 10% Negro.
the
The District Court found that in the
par
law,
operation of its school transportation
The District Court also found that the
for
program, which was designed to relieve
State of Michigan had committed several
overcrowding, the Detroit Board had ad-
plans
constitutional violations with respect to
Board
mittedly bused Negro Detroit pupils to
the exercise of its general responsibil-
the St
predominantly Negro schools which were
ity for, and supervision of, public
authorit
beyond or away from closer white
education.5 The State, for example, was
lection
schools with available space.4 This
found to have failed, until the 1971 Ses-
fect
practice was found to have continued in
sion of the Michigan Legislature, to pro-
728
program
recent years despite the Detroit Board's
vide authorization or funds for the 727
largely
avowed policy, adopted in 1967, of utiliz-
transportation of pupils within Detroit
sponsible
ing transportation to increase desegre-
regardless of their poverty or distance
gation:
from the school to which they were as-
6.
signed; during this same period the
tendan
"With one exception (necessitated by
State provided many neighboring, most-
years
the burning of a white school), de-
district
ly white, suburban districts the full
726
fendant Board has never bused white
date
range of state-supported transportation.
first
children to predominantly black
under
schools. The Board has not bused
The District Court found that the
but
white pupils to black schools despite
State, through Act 48, acted to "impede,
of any
the enormous amount of space availa-
delay and minimize racial integration in
ble in inner-city schools. There were
Detroit schools." The first sentence of
tendance
22,961 vacant seats in schools 90% or
§ 12 of Act 48 was designed to delay the
practic
more black." Id., at 588.
April 7, 1970, desegregation plan origi-
§ 12
nally adopted by the Detroit Board.
Laws
With respect to the Detroit Board of
The remainder of § 12 sought to pre-
7. The
Education's practices in school construc-
scribe for each school in the eight dis-
possible
tion, the District Court found that De-
tricts criteria of "free choice" and
person
troit school construction generally tend-
"neighborhood schools," which, the Dis-
patter
ed to have a segregative effect with the
trict Court found, "had as their purpose
which
white
4. The Court of Appeals found record evi-
"The legislature shall maintain and support
hoods
dence that in at least one instance during
a system of free public elementary and second-
the period 1957-1958, Detroit served a sub-
ary schools as defined by law."
:
ticess
urban school district by contracting with it
Similarly. the Michigan Supreme Court has
to educate its Negro high school students
in
the
stated: "The school district is a State
by transporting them away from nearby
1970)
agency. Moreover, it is. of legislative crea-
suburban white high schools, and past De-
tion.
" Attorney General ex rel.
on the
troit high schools which were predominantly
Kies V. Lowrey. 131 Mich. 639, 644, 92 N.W.
remove
white, to all-Negro or predominantly Negro
289, 290 (1902) "Education in Michigan
ernment
Detroit schools. 4S4 F.2d, at 231.
belongs to the State. It is no part of the local
have
self-government inherent in the township or
the cot
5. School districts in the State of Michigan
municipality, except SO far as the Legislature
know
are instrumentalities of the State and subor-
may choose to make it such. The Constitu-
ly infre
dinate to its State Board of Education and
tion has turned the whole subject over to
and VI
legislature. The Constitution of the State of
the Legislature.
Attorney Gen-
Michigan, Art. S, § 2, provides in rele-
mainteu
eral ex rel. Zacharias v. Detroit Board of
vant part:
i.
Education, 154 Mich. 584, 590, 118 N.W. 606,
609 (1908).
The
Suppa
418 U.S. 729
MILLIKEN V. BRADLEY
3119
Cite as 94 S.Ct. 3112 (1974)
and effect the maintenance of segrega-
Turning to the question of an appro-
tion." 338 F.Supp., at 589.6
priate remedy for these several constitu-
The District Court also held that the
tional violations, the District Court de-
acts of the Detroit Board of Education,
ferred a pending motion 8 by intervening
as a subordinate entity of the State,
parent defendants to join as additional 729
were attributable to the State of Michi-
parties defendant the 85 outlying school
gan, thus creating a vicarious liability on
districts in the three-county Detroit met-
the part of the State. Under Michigan
ropolitan area on the ground that effec-
law, § 388.851 (1970),
tive relief could not be achieved without
for example, school building construction
their presence.9 The District Court con-
plans had to be approved by the State
cluded that this motion to join was "pre-
Board of Education, and, prior to 1962,
mature," since it "has to do with relief"
the State Board had specific statutory
and no reasonably specific desegregation
authority to supervise school-site se-
plan was before the court. 338 F.Supp.,
lection. The proofs concerning the ef-
at 595. Accordingly, the District Court
fect of Detroit's school construction
proceeded to order the Detroit Board of
728
program were, therefore, found to be
Education to submit desegregation plans
largely applicable to show state re-
limited to the segregation problems
sponsibility for the segregative results.⁷
found to be existing within the city of
6. "Sec. 12. The implementation of any at-
Thus, the District Court concluded:
tendance provisions for the 1970-71 school
"The affirmative obligation of the defendant
year determined by any first class school
Board has been and is to adopt and imple-
district board shall be delayed pending the
ment pupil assignment practices and policies
date of commencement of functions by the
that compensate for and avoid incorporation
first class school district boards established
into the school system the effects of resi-
under the provisions of this amendatory act
dential racial segregation." Id., at 593.
The Court of Appeals, however, expressly
but such provision shall not impair the right
noted that:
of any such board to determine and imple-
"In affirming the District Judge's findings of
ment prior to such date such changes in at-
constitutional violations by the Detroit
tendance provisions as are mandated by
Board of Education and by the State defend-
practical necessity.
Act
No.
48,
ants resulting in segregated schools in De-
§ 12, Mich.Pub. Acts of 1970; Mich.Comp.
troit, we have not relied at all upon testimo-
Laws $ 388.182 (1970).
ny pertaining to segregated housing except
as school construction programs helped
7. The District Court briefly alluded to the
cause or maintain such segregation." 484
possibility that the State, along with private
F.2d, at 242.
persons, had caused, in part, the housing
Accordingly, in its present posture, the case
does not present any question concerning
patterns of the Detroit metropolitan area
possible state housing violations.
which, in turn, produced the predominantly
white and predominantly Negro neighbor-
8. On March 22, 1971, a group of Detroit res-
hoods that characterize Detroit:
idents, who were parents of children enrolled
in the Detroit public schools, were permitted
"It is no answer to say that restricted prac-
to intervene as parties defendant. On June
tices grew gradually (as the black population
24, 1971, the District Judge alluded to the
in the area increased between 1920 and
"possibility" of a metropolitan school system
1970), or that since 1948 racial restrictions
stating: "[A]sI have said to several witness-
on the ownership of real property have been
es in this case: 'How do you desegrate a
removed. The policies pursued by both gov-
black city, or a black school system." Peti-
tioners' Appendix 243a (hereinafter Pat.
ernment and private persons and agencies
App.). Subsequently, on July 16, 1971, vari-
have a continuing and present effect upon
ous parents filed a motion to require joinder
the complexion of the community-as we
of all of the 85 outlying independent school
know. the choice of a residence is a relative-
districts within the tri-county area.
ly infrequent affair. For many years FHA
9. The respondents. as plaintiffs below, op-
and VA openly advised and advocated the
posed the motion to join the additional
maintenance of 'harmonious' neighborhoods,
school districts, arguing that the presence of
i. e., racially and economically harmonions.
the state defendants was sufficient and all
The conditions created continue." 338 F.
that was required. even if, in shaping a rem-
Supp. 582, 587 (ED Mich.1971).
edy, the affairs of these other districts was
to be affected. 338 F.Supp. at 595.
3120
94 SUPREME COURT REPORTER
418 U.S. 729
418
Detroit. At the same time, however, the
vene under advisement pending submis-
or
state defendants were directed to submit
sion of the requested desegregation
desegregation plans encompassing the
plans by Detroit and the state officials.
the
three-county metropolitan area 10 despite
On March 7, 1972, the District Court no-
pri
730 the fact that the 85 outlying school dis-
tified all parties and the petitioner
Ap
tricts of these three counties were not
school districts seeking intervention,
parties to the action and despite the fact
that March 14, 1972, was the deadline
Up
that there had been no claim that these
for submission of recommendations for
vene
outlying districts had committed constitu-
conditions of intervention and the date
731
Court
tional violations. 11 An effort to appeal
of the commencement of hearings on De-
nors
these orders to the Court of Appeals was
troit-only desegregation plans. On the
Mare
dismissed on the ground that the orders
second day of the scheduled hearings,
ing
were not appealable. 468 F.2d 902 (CA
March 15, 1972, the District Court
"met:
6), cert. denied, 409 U.S. 844, 93 S.Ct. 45,
granted the motions of the intervenor
and
34 L.Ed.2d 83 (1972). The sequence of
school districts 12 subject, inter alia, to
school
the ensuing actions and orders of the
the following conditions:
musts
District Court are significant factors and
1732
issue.
"1. No intervenor will be permit-
will therefore be catalogued in some
compl
ted to assert any claim or defense pre-
detail.
only
viously adjudicated by the court.
Court
Following the District Court's abrupt
"2. No intervenor shall reopen any
the P
announcement that it planned to consid-
question or issue which has previously
peals.
er the implementation of a multidistrict,
been decided by the court.
metropolitan area remedy to the segre-
(a)
gation problems identified within the
er the
city of Detroit, the District Court was
"7. New intervenors are granted
Distr
again requested to grant the outlying
intervention for two principal pur-
quest
school districts intervention as of right
poses: (a) To advise the court, by
relief
on the ground that the District Court's
brief, of the legal propriety or impro-
plan,
new request for multidistrict plans
priety of considering a metropolitan
Detro
"may, as a practical matter, impair or
plan; (b) To review any plan or plans
itan a
impede [the intervenors'] ability to pro-
for the desegregation of the so-called
ants
tect" the welfare of their students. The
larger Detroit Metropolitan area, and
cause
District Court took the motions to inter-
submitting objections, modifications
school
distri
relief
10. At the time of the 1970 census, the popu-
legally distinct school districts within the
lation of Michigan was 8,875,083, almost half
tri-county area, having a total enrollment of
urban
of which, 4,199,931. resided in the tri-county
approximately 1,000,000 children. In 1970,
ted vi
area of Wayne, Oakland, and Macomb. Oak-
the Detroit Board of Education operated 319
land and Macomb Counties abut Wayne
schools with approximately 276,000 students.
County to the north, and Oakland County
11. In its formal opinion, subsequently an-
side
abuts Macomb County to the west. These
nounced, the District Court candidly recog-
war
counties cover 1,952 square miles, Michigan
nized:
Statistical Abstract (9th ed. 1972), and the
pub
"It should be noted that the court has taken
area is approximately the size of the State
no proofs with respect to the establishment
pre:
of Delaware (2,057 square miles). more than
of the boundaries of the 86 public school
bef
half again the size of the State of Rhode Is-
districts in the counties of Wayne, Oakland
cou
land (1,214 square miles) and almost 30
and Macomb, nor on the issue of whether,
times the size of the District of Columbia
equ
with the exclusion of the city of Detroit school
(67 square miles). Statistical Abstract of the
the
district, such school districts have committed
United States (93d ed. 1972). The popula-
acts of de jure segregation." 345 F.Supp.
req
tions of Wayne, Oakland, and Macomb Coun-
914, 920 (ED Mich.1972).
rem
ties were 2,666,751; 907,871; and 625,309, re-
App
spectively, in 1970. Detroit, the State's larg-
12. According to the District Court, interven-
est city, is located in Wayne County.
tion was permitted under Fed.Rule Civ.Proc.
In the 1970-1971 school year, there were
24(a), "Intervention of Right," and also un-
13. TI
2,157,449 children enrolled in school dis-
der Rule 24(b), "Permissive Intervention."
was
tricts in Michigan. There are S6 independent,
Distr
418 U.S. 733
MILLIKEN V. BRADLEY
3121
Cite as 94 S.Ct. 3112 (1974)
or alternatives to it or them, and in
(b) On March 28, 1972, the District
accordance with the requirements of
Court issued its findings and conclusions
the United States Constitution and the
on the three Detroit-only plans sub-
prior orders of this court." 1 Joint
mitted by the city Board and the re-
Appendix 206 (hereinafter App.).
spondents. It found that the best of the
three plans "would make the Detroit
Upon granting the motion to inter-
school system more identifiably Black
vene, on March 15, 1972, the District
thereby increasing the flight of
Court advised the petitioning interve-
Whites from the city and the system."
nors that the court had previously set
Id., at 55a. From this the court con-
March 22, 1972, as the date for the fil-
cluded that the plan "would not ac-
ing of briefs on the legal propriety of a
complish desegregation
within
"metropolitan" plan of desegregation
the corporate geographical limits of the
and, accordingly, that the intervening
city." Id., at 56a. Accordingly, the Dis-
school districts would have one week to
trict Court held that it "must look beyond
muster their legal arguments on the
the limits of the Detroit school district
733
L732 issue. 13 Thereafter, and following the
for a solution to the problem," and that
completion of hearings on the Detroit-
"[s]chool district lines are simply mat-
only desegregation plans, the District
ters of political convenience and may not
Court issued the four rulings that were
be used to deny constitutional rights."
the principal issues in the Court of Ap-
Id., at 57a.
peals.
(c) During the period from March 28
(a) On March 24, 1972, two days aft-
to April 14, 1972, the District Court
er the intervenors' briefs were due, the
conducted hearings on a metropolitan
District Court issued its ruling on the
plan. Counsel for the petitioning in-
question of whether it could "consider
tervenors was allowed to participate in
relief in the form of a metropolitan
these hearings, but he was ordered to
plan, encompassing not only the City of
confine his argument to "the size and
Detroit, but the larger Detroit metropol-
expanse of the metropolitan plan" with-
itan area." It rejected the state defend-
out addressing the intervenors' opposi-
ants' arguments that no state action
tion to such a remedy or the claim that
caused the segregation of the Detroit
a finding of a constitutional violation by
schools, and the intervening suburban
the intervenor districts was an essential
districts' contention that interdistrict
predicate to any remedy involving them.
relief was inappropriate unless the sub-
Thereafter, on June 14, 1972, the Dis-
urban districts themselves had commit-
trict Court issued its ruling on the "de-
ted violations. The court concluded:
segregation area" and related findings
and conclusions. The court acknowl-
"[I]t is proper for the court to con-
edged at the outset that it had "taken no
sider metropolitan plans directed to-
proofs with respect to the establishment
ward the desegregation of the Detroit
of the boundaries of the 86 public school
public schools as an alternative to the
districts in the counties [in the Detroit
present intra-city desegregation plans
area], nor on the issue of whether, with
before it and, in the event that the
the exclusion of the city of Detroit
court finds such intra-city plans inad-
school districts, such school districts have
equate to desegregate such schools,
committed acts of de jure segregation."
the court is of the opinion that it is
Nevertheless, the court designated 53 of
required to consider a metropolitan
the 85 suburban school districts plus De-
remedy for desegregation." Pet.
troit as the "desegregation area" and
App. 51a.
appointed a panel to prepare and submit
13. This rather abbreviated briefing schedule
a motion made eight months earlier, to bring
was maintained despite the fact that the
the suburban districts into the case. See text
District Court had deferred consideration of
accompanying 11. S supra.
3122
94 SUPREME COURT REPORTER
418 U.S. 733
418
"an effective desegregation plan" for
238, and by the state defendants, id.,
plan
the Detroit schools that would encom-
at 239-241.16 It stated that the acts
plan
pass the entire desegregation area. 14
of racial discrimination shown in the 735
the
The plan was to be based on 15 clusters,
record are "causally related to the sub-
ment
each containing part of the Detroit sys-
stantial amount of segregation found
to
tem and two or more suburban districts,
in the Detroit school system," id., at
out
1734 1 and was to "achieve the greatest degree
241, and that "the District Court was
any
of actual desegregation to the end that,
therefore authorized and required to
cons
upon implementation, no school, grade or
take effective measures to desegregate
736 ing
classroom [would be] substantially dis-
the Detroit Public School System." Id.,
not
proportionate to the overall pupil racial
at 242.
allow
composition." 345 F.Supp. 914, 918 (ED
Mich.1972).
The Court of Appeals also agreed with
the District Court that "any less com-
act
(d) On July 11, 1972, and in accord-
prehensive a solution than a metropoli-
St
ance with a recommendation by the
tan' area plan would result in an all
court-appointed desegregation panel, the
black school system immediately sur-
th
District Court ordered the Detroit
rounded by practically all white subur-
lb
Board of Education to purchase or lease
ban school systems, with an overwhelm-
"at least" 295 school buses for the pur-
An
ingly white majority population in the to-
pose of providing transportation under
to
tal metropolitan area." Id., at 245.
an interim plan to be developed for the
Dist
The court went on to state that it
1972-1973 school year. The costs of
could "[not] see how such segregation
this acquisition were to be borne by the
can be any less harmful to the minority
view
state defendants. Pet.App. 106a-107a.
students than if the same result were
Cou
On June 12, 1973, a divided Court of
accomplished within one school district."
"des
Appeals, sitting en banc, affirmed in
Ibid.
subm
part, vacated in part, and remanded for
affé
Accordingly, the Court of Appeals
further proceedings. 484 F.2d 215
dys
concluded that "the only feasible deseg-
be
(CA6). 15 The Court of Appeals held;
regation plan involves the crossing of
man
first, that the record supported the
the boundary lines between the Detroit
hea
District Court's findings and conclusions
School District and adjacent or nearby
plen
on the constitutional violations commit-
school districts for the limited purpose
2d,
ted by the Detroit Board, id., at 221-
of providing an effective desegregation
rem
14. As of 1970. the 53 school districts outside
city Board is an instrumentality of the State
not
the city of Detroit that were included in the
and subordinate to the State Board, the seg-
den
court's "desegration area" had a combined stu-
regative actions of the Detroit Board "are
Del
dent population of approximately 503,000
the actions of an agency of the State," id.,
De
students compared to Detroit's approximate-
at 238; (2) that the state legislation
ly 276,000 students. Nevertheless, the Dis-
rescinding Detroit's voluntary desegregation
of
trict Court directed that the intervening dis-
plan contributed to increasing segregation in
com
tricts should be represented by only one
the Detroit schools, ibid.; (3) that under
tion
member on the desegregation panel while the
state law prior to 1962 the State Board had
Id.,
Detroit Board of Education was granted
authority over school construction plans and
three panel members. 345 F.Supp., at 917.
therefore had to be held responsible "for the
peal
segregative results," ibid.; (4) that the
der:
15. The District Court had certified most of
"State statutory scheme of support of trans-
buse
the foregoing rulings for interlocutory re-
view pursuant to 28 U.S.C. § 1292(b) (1
portation for school children directly dis-
trict
criminated against Detroit:" id., at 240,
App. 265-266) and the case was initially de-
order
by not providing transportation funds to
cided on the merits by a panel of three
Detroit on the same basis as funds were
judges. However, the panel's opinion and
provided to surburban districts, id., at 238:
17.
judgment were vacated when it was deter-
and (5) that the transportation of Negro
mined to rehear the case en bane. 484 F.2d.
students from one suburban district to a Negro
F
at 218.
school in Detroit must have had the "ap-
16. With respect to the State's violations, the
proval, tacit or express. of the State Board
36
Court of Appeals held: (1) that, since the
of Education." ibid.
the
418 U.S. 737
MILLIKEN V. BRADLEY
3123
Cite as 94 S.Ct. 3112 (1974)
plan." Id., It reasoned that such a
II
1737
plan would be appropriate because of
the State's violations, and could be imple-
[1] Ever since Brown V. Board of
mented because of the State's authority
Education, 347 U.S. 483, 74 S.Ct. 686, 98
to control local school districts. With-
L.Ed. 873 (1954), judicial consideration
out further elaboration, and without
of school desegregation cases has begun
with the standard:
any discussion of the claims that no
constitutional violation by the outly-
"[I]n the field of public education the
1736 ing districts had been|shown and that
doctrine of 'separate but equal' has no
no evidence on that point had been
place. Separate educational facilities
allowed, the Court of Appeals held:
are inherently unequal." Id., at 495,
74 S.Ct., at 692.
"[T]he State has committed de jure
This has been reaffirmed time and
acts of segregation and
the
State controls the instrumentalities
again as the meaning of the Constitu-
whose action is necessary to remedy
tion and the controlling rule of law.
the harmful effects of the State acts."
The target of the Brown holding was
Ibid.
clear and forthright: the elimination of
An interdistrict remedy was thus held
state-mandated or deliberately main-
to be "within the equity powers of the
tained dual school systems with certain
District Court." Id., at 250.17
schools for Negro pupils and others for
white pupils. This duality and racial
The Court of Appeals expressed no
segregation were held to violate the Con-
views on the propriety of the District
stitution in the cases subsequent to
Court's composition of the metropolitan
1954, including particularly Green v.
"desegregation area." It held that all
County School Board of New Kent Coun-
suburban school districts that might be
ty, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.
affected by any metropolitanwide reme-
2d 716 (1968) ; Raney V. Board of Edu-
dy should, under Fed.Rule Civ.Proc. 19,
cation, 391 U.S. 443, 88 S.Ct. 1697, 20
be made parties to the case on re-
L.Ed.2d 727 (1968) ; Monroe V. Board
mand and be given an opportunity to be
of Comm'rs, 391 U.S. 450, 88 S.Ct.
heard with respect to the scope and im-
1700, 20 L.Ed.2d 733 (1968) ; Swann V.
plementation of such a remedy. 484 F.
Charlotte-Mecklenburg Board of Educa-
2d, at 251-252. Under the terms of the
tion, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.
remand, however, the District Court was
2d 554 (1971); Wright V. Council of the
not "required" to receive further evi-
City of Emporia, 407 U.S. 451, 92 S.Ct.
dence on the issue of segregation in the
2196, 33 L.Ed.2d 51 (1972) ; United
Detroit schools or on the propriety of a
States V. Scotland Neck City Board of
Detroit-only remedy, or on the question
Education, 407 U.S. 484, 92 S.Ct. 2214,
of whether the affected districts had
33 L.Ed.2d 75 (1972).
committed any violation of the constitu-
tional rights of Detroit pupils or others.
The Swann case, of course, dealt
Id., at 252. Finally, the Court of Ap-
"with the problem of defining in more
peals vacated the District Court's or-
precise terms than heretofore the
der directing the acquisition of school
scope of the duty of school authorities
buses, subject to the right of the Dis-
and district courts in implementing
trict Court to consider reimposing the
Brown I and the mandate to eliminate
order "at the appropriate time." Ibid.
dual systems and establish unitary
17. The court sought to distinguish Bradley V.
an actual consolidation of three school dis-
School Board of the City of Richmond, 462
triets and that Virginia's Constitution and
F.2d 1058 (CA4 1972). aff'd by an equally
statutes. unlike Michigan's gave the local
divided Court, 412 U.N. 92. 93 S.Ct. 1952.
boards exclusive power to operate the public
36 L.Ed.24 771 (1973). on the grounds that
schools. 484 F.2d. at 251.
the District Court in that case had ordered
3124
94 SUPREME COURT REPORTER
418 U.S. 737
418
systems at once." 402 U.S., at 6, 91 only plans on the ground that "while
S.Ct., at 1271.
[they] would provide a racial mix more
which
in keeping with the Black-White propor-
cent
In Brown V. Board of Education, 349 U.
tions of the student population [they]
S. 294, 75 S.Ct. 753, 99 L.Ed. 1083
would accentuate the racial identifiabili-
(1955) (Brown II), the Court's first en-
ty of the Detroit] district as a Black
739
seem
counter with the problem of remedies in
school system, and would not accomplish
the
school desegregation cases, the Court
desegregation." Pet.App., 56a. "[T]he
1740
mar
noted:
racial composition of the student body is
the
"In fashioning and effectuating the
such," said the court, "that the plan's
their
decrees, the courts will be guided by
implementation would clearly make the
of
1738
equitable principles. Traditionally,
entire Detroit public school system ra-
balane
equity has been characterized by a
cially identifiable" (Id., at 54a), "leav-
ble.
practical flexibility in shaping its
[ing] many of its schools 75 to 90 per
sump
remedies and by a facility for adjust-
cent Black." Id., at 55a. Consequent-
not
ing and reconciling public and private
ly, the court reasoned, it was impera-
of
needs." Id., at 300, 75 S.Ct., at 756
tive to "look beyond the limits of the
less t
(footnotes omitted).
Detroit school district for a solution
body
to the problem of segregation in the De-
ed the
In further refining the remedial process,
troit public schools
" since
tions
Swann held, the task is to correct, by a
"[s]chool district lines are simply mat-
The
balancing of the individual and collective
ters of political convenience and may not
as De
interests, "the condition that offends the
be used to deny constitutional rights."
distri
Constitution." A federal remedial pow-
Id., at 57a. Accordingly, the District
the
er may be exercised "only. on the basis
Court proceeded to redefine the relevant
emplo
of a constitutional violation" and, "[a]s
area to include areas of predominantly
expre
with any equity case, the nature of the
white pupil population in order to ensure
tutioi
violation determines the scope of the
that "upon implementation, no school,
remedy." 402 U.S., at 16, 91 S.Ct.,
grade or classroom [would be] substan-
tra
at 1276.
tially disproportionate to the overall pu-
rea
pil racial composition" of the entire met-
[2] Proceeding from these basic
the
ropolitan area.
principles, we first note that in the Dis-
12
trict Court the complainants sought a
While specifically acknowledging that
OF
remedy aimed at the condition alleged to
the District Court's findings of a condi-
the
offend the Constitution-the segregation
tion of segregation were limited to De-
gri
within the Detroit City School District. 18
troit, the Court of Appeals approved the
tia
The court acted on this theory 'of the
use of a metropolitan remedy largely on
pu
case and in its initial ruling on the "De-
the grounds that it is
Su
segregation Area" stated:
"impossible to declare 'clearly erro-
In
"The task before this court, there-
neous' the District Judge's conclusion
of
that any Detroit only segregation plan
the
fore, is now, and
has always
been, how to desegregate the Detroit
will lead directly to a single segregat-
ed Detroit school district overwhelm-
19.1
public schools." 345 F.Supp., at 921.
pils
ingly black in all of its schools, sur-
Thereafter, however, the District Court
rounded by a ring of suburbs and sub-
out
abruptly rejected the proposed Detroit-
urban school districts overwhelmingly
18. Although the list of issues presented for
(c) and (d) (2), at a minimum limit
review in petitioners' briefs and petitions for
our review to the Detroit violation findings
writs of certiorari do not include arguments
to "plain error." and, under our decision last
on the findings of segregative violations on
Term in Keyes V. School District No. 1, Den-
ver, Colorado. 413 U.S. 189, 93 S.Ct. 2686,
for
the part of the Detroit defendants, two of the
ten
petitioners argue in brief that these findings
37 L.Ed.2d 548 1973), the findings appear
sot
constitute error. This Court's Rules 23(1)
to be correct.
418 U.S. 742
MILLIKEN V. BRADLEY
3125
Cite as 94 S.Ct. 3112 (1974)
white in composition in a State in
"If we were to read the holding of the
which the racial composition is 87 per
District Court to require, as a matter
cent white and 13 per cent black." 484
of substantive constitutional right,
F.2d, at 249.
any particular degree of racial balance
[3] Viewing the record as a whole, it
or mixing, that approach would be dis-
seems clear that the District Court and
approved and we would be obliged to
the Court of Appeals shifted the pri-
reverse." 402 U.S., at 24, 91 S.Ct., at
L?40 mary focus from a Detroit remedy to
1280.
the metropolitan area only because of
The clear import of this language from
their conclusion that total desegregation
Swann is that desegregation, in the
of Detroit would not produce the racial
sense of dismantling a dual school sys-
balance which they perceived as desira-
tem, does not require any particular ra-
ble. Both courts proceeded on an as-
cial balance in each "school, grade or 741
sumption that the Detroit schools could
classroom." 19 See Spencer V. Kugler,
not be truly desegregated-in their view
404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d
of what constituted desegregation-un-
723 (1972).
less the racial composition of the student
body of each school substantially reflect-
[4] Here the District Court's ap-
ed the racial composition of the popula-
proach to what constituted "actual de-
tion of the metropolitan area as a whole.
segregation" raises the fundamental
The metropolitan area was then defined
question, not presented in Swann, as to
as Detroit plus 53 of the outlying school
the circumstances in which a federal
districts. That this was the approach
court may order desegregation relief
the District Court expressly and frankly
that embraces more than a single school
employed is shown by the order which
district. The court's analytical starting
expressed the court's view of the consti-
point was its conclusion that school dis-
tutional standard:
trict lines are no more than arbitrary
lines on a map drawn "for political con-
"Within the limitations of reasonable
venience." Boundary lines may be
travel time and distance factors, pupil
bridged where there has been a constitu-
reassignments shall be effected within
tional violation calling for interdistrict
the clusters described in Exhibit P.M.
relief, but the notion that school district
12 so as to achieve the greatest degree
lines may be casually ignored or treated
of actual desegregation to the end
as a mere administrative convenience is
that, upon implementation, no school,
contrary to the history of publie educa-
grade or classroom [will be] substan-
tion in our country. No single tradition
tially disproportionate to the overall
in public education is more deeply rooted
pupil racial composition." 345 F.
than local control over the operation of
Supp., at 918 (emphasis added).
schools; local autonomy has long been
In Swann, which arose in the context
thought essential both to the mainte-
of a single independent school district,
nance of community concern and support
the Court held:
for public schools and tolquality of the 742
19. Disparity in the racial composition of pu-
one race [the school authority has] the bur-
pils within a single district may well consti-
den of showing that such school assignments
tute a "signal" to a district court at the
are genuinely nondiscriminatory." 402 U.S.,
outset, leading to inquiry into the causes ac-
at 26, 91 S.Ct., at 1281. See also Keyes, su-
counting for a pronounced racial identifiabili-
pra, at 208, 93 S.Ct.. at 2697. However, the
ty of schools within one school system. In
use of significant racial imbalance in schools
Swann, for example, we were dealing with a
within an autonomous school district as
large but single independent school system,
a signal which operates simply to shift
and a unanimous Court noted
the burden of proof. is a very different mat-
"Where the school authority's proposed plan
ter from equating racial imbalance with a
for conversion from a dual to a unitary sys-
constitutional violation calling for a remedy.
tem contemplates the continued existence of
Keyes, supra, also involved a remedial order
some schools that are all or predominantly of
within a single autonomous school district.
3126
94 SUPREME COURT REPORTER
418 U.S. 742
418 t
educational process. See Wright V.
children of Detroit be within the ju-
plex (
Council of the City of Emporia, 407 U.S.,
risdiction and operating control of a
perin
at 469, 92 S.Ct., at 2206. Thus, in San
school board elected by the parents and
is a.
Antonio Independent School District V.
residents of other districts? What
qualit
Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278,
board or boards would levy taxes for
would
1305, 36 L.Ed.2d 16 (1973), we observed
school operations in these 54 districts
schoo
that local control over the educational
constituting the consolidated metropoli-
tives.
process affords citizens an opportunity
tan area? What provisions could be
to participate in decision-making, per-
made for assuring substantial equality
[5]
mits the structuring of school programs
in tax levies among the 54 districts, if
the
to fit local needs, and encourages "ex-
this were deemed requisite? What pro-
and
perimentation, innovation, and a healthy
visions would be made for financing?
cal
competition for educational excellence."
Would the validity of long-term bonds be
they
jeopardized unless approved by all of the
Amer
The Michigan educational structure
component districts as well as the
to pr
involved in this case, in common with
State? What body would determine
e.
most States, provides for a large mea-
that portion of the curricula now left to
Emp
sure of local control,2 and a review of
the discretion of local school boards?
L.Ed.
the scope and character of these local
Who would establish attendance zones,
Scotl:
powers indicates the extent to which the
purchase school equipment, locate and
407 1
interdistrict remedy approved by the
construct new schools, and indeed attend
75 (1
two courts could disrupt and alter the
to all the myriad day-to-day decisions
vente
743 structure of public education in Michi-
that are necessary to school operations
distr
gan. The metropolitan remedy would
affecting potentially more than three-
was
require, in effect, consolidation of 54 in-
quarters of a million pupils' See n.
schoc
dependent school districts historically
10, supra.
Boar
administered as separate units into a
ty,
vast new super school district. See n.
It may be suggested that all of these
contr
10, supra. Entirely apart from the lo-
vital operational problems are yet to be
draw
gistical and other serious problems at-
resolved by the District Court, and that
ed S
tending large-scale transportation of
this is the purpose of the Court of Ap-
students, the consolidation would give
peals' proposed remand. But it is ob-
(ED,
rise to an array of other problems in fi-
vious from the scope of the interdistrict
(CAI
nancing and operating this new school
remedy itself that absent a complete re-
gari
system. Some of the more obvious ques-
structuring of the laws of Michigan re-
S.Ct.
tions would be: What would be the sta-
lating to school districts the District
or
tus and authority of the present popu-
Court will become first, a de factor"leg- 744
main
larly elected school boards? Would the
islative authority" to resolve these com-
holdi
and
20. Under the Michigan School Code of 1955,
340.583; to provide a kindergarten program,
trict.
the local school district is an autonomous
§ 340.584 to establish and operate vocation-
the 1
political body corporate, operating through a
al schools, § 340,585; to offer adult educa-
Board of Education popularly elected.
tion programs. § 340.586 to establish attend-
manc
Mich.Comp.Laws §§ 340.27, 340.55, 340.-
nuce areas, $ 340.559; to arrange for trans-
trict
107, 340.148, 340.149, 340.188. As such,
portation of nonresident students, § 340.591
of se
the day-to-day affairs of the school district
to acquire transportation equipment, § 340.-
distr
are determined nt the local level in accord-
594: to receive gifts and bequests for educa-
ance with the plenary power to acquire real
tional purposes, $ 340.605; to employ an at-
and personal property, §§ 340.26, 340.77, 340.-
torney, § 340.609 to suspend or expel stu-
[6]
113, 340.165, 340.192, 340.352: to hire and
dents, § 340.613; to make rules and regula-
ently
contract with personnel, $$ 340.569. 340.574;
tions for the operation of schools, $ 340.614
the S
to levy taxes for operations, $ 340.563; to
to cause to be levied authorized millage, §
by th
borrow against receipts, $ 340.567 to deter-
340.643a; to acquire property by eminent do-
tiona
mine the length of school terms, § 340.575; to
main, § 340.711 et seq.: and to approve and
control the admission of nonresident students,
select textbooks, § 340.882.
16, 9
§ 340.582; to determine courses of study, §
aries
distr
418 U.S. 745
MILLIKEN V. BRADLEY
3127
Cite as 94 S.Ct. 3112 (1974)
plex questions, and then the "school su-
dating the separate units for remedi-
perintendent" for the entire area. This
al purposes or by imposing a cross-
is a task which few, if any, judges are
district remedy, it must first be 745
qualified to perform and one which
shown that there has been a con-
would deprive the people of control of
stitutional violation within one dis-
schools through their elected representa-
trict that produces a significant segre-
tives.
gative effect in another district. Spe-
cifically, it must be shown that racially
[5] Of course, no state law is above
discriminatory acts of the state or local
the Constitution. School district lines
school districts, or of a single school dis-
and the present laws with respect to lo-
trict have been a substantial cause of in-
cal control, are not sacrosanct and if
terdistrict segregation. Thus an inter-
they conflict with the Fourteenth
district remedy might be in order where
Amendment federal courts have a duty
the racially discriminatory acts of one or
to prescribe appropriate remedies. See,
more school districts caused racial segre-
e. g., Wright V. Council of the City of
gation in an adjacent district, or where
Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33
district lines have been deliberately
L.Ed.2d 51 (1972) United States V.
drawn on the basis of race. In such cir-
Scotland Neck City Board of Education,
cumstances an interdistrict remedy
407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d
would be appropriate to eliminate the in-
75 (1972) (state or local officials pre-
terdistrict segregation directly caused
vented from carving out a new school
by the constitutional violation. Con-
district from an existing district that
versely, without an interdistrict viola-
was in process of dismantling a dual
tion and interdistrict effect, there is no
school system); cf. Haney V. County
constitutional wrong calling for an in-
Board of Education of Sevier Coun-
terdistrict remedy.
ty, 429 F.2d 364 (CA8 1970) (State
contributed to separation of races by
[7] The record before us, volumi-
drawing of school district lines) ; Unit-
nous as it is, contains evidence of de
ed States V. Texas, 321 F.Supp. 1043
jure segregated conditions only in the
(ED Tex.1970), aff'd, 447 F.2d 441
Detroit schools; indeed, that was the
(CA5 1971), cert. denied sub nom. Ed-
theory on which the litigation was ini-
gar V. United States, 404 U.S. 1016, 92
tially based and on which the District
S.Ct. 675, 30 L.Ed.2d 663 (1972) (one
Court took evidence. See supra at 3117-
3118. With no showing of significant
or more school districts created and
violation by the 53 outlying school dis-
maintained for one race). But our prior
tricts and no evidence of any interdis-
holdings have been confined to violations
trict violation or effect, the court went
and remedies within a single school dis-
beyond the original theory of the case as
trict. We therefore turn to address, for
framed by the pleadings and mandated a
the first time, the validity of a remedy
metropolitan area remedy. To approve
mandating cross-district or interdis-
the remedy ordered by the court would
trict consolidation to remedy a condition
impose on the outlying districts, not
of segregation found to exist in only one
shown to have committed any constitu-
district.
tional violation, a wholly impermissible
remedy based on a standard not hinted
[6] The controlling principle consist-
at in Brown I and II or any holding of
ently expounded in our holdings is that
this Court.
the scope of the remedy is determined
by the nature and extent of the constitu-
In dissent, Mr. Justice WHITE and
tional violation. Swann, 402 U.S., at
Mr. Justice MARSHALL undertake to
16, 91 S.Ct., at 1276. Before the bound-
demonstrate that agencies having state-
aries of separate and autonomous school
wide authority participated in maintain-
districts may be set aside by consoli-
ing the dual school system found to exist
3128
94 SUPREME COURT REPORTER
418 U.S. 745
418
in Detroit. They are apparently of the
within the Detroit school system, and
748
view that once such participation is
not elsewhere. and on this record the
746 shown, the District Court should have a
remedy must be limited to that system.
recor
relatively free hand to reconstruct school
Swann, supra, 402 U.S., at 16, 91 S.Ct.,
cont
districts outside of Detroit in fashioning
at 1276.
ciden
relief. Our assumption, arguendo, see
Cod
infra, p. 3129, that state agencies did par-
[8, 9] The constitutional right of the
rehi
ticipate in the maintenance of the De-
Negro respondents residing in Detroit is
isol
troit system, should make it clear that it
to attend a unitary school system in that
con
is not on this point that we part
district. Unless petitioners drew the
viola
company.2 The difference between us
district lines in a discriminatory fashion,
arises instead from established doctrine
or arranged for white students resid-
747
conc
laid down by our cases. Brown, supra;
ing in the Detroit district to attend
tion
Green, supra; Swann, supra; Scotland
schools in Oakland and Macomb Coun-
scho
Neck, supra; and Emporia, supra, each
ties, they were under no constitution-
The
addressed the issue of constitutional
al duty to make provisions for Negro
lied
wrong in terms of an established geo-
students to do SO. The view of the
graphic and administrative school sys-
dissenters, that the existence of a dual
tion
tem populated by both Negro and white
system in Detroit can be made the
in t
children. In such a context, terms such
basis for a decree requiring cross-dis-
as "unitary" and "dual" systems, and
"racially identifiable schools," have
trict transportation of pupils, cannot be
tivel
meaning, and the necessary federal au-
supported on the grounds that it repre-
Boar
thority to remedy the constitutional
sents merely the devising of a suitably
tion
wrong is firmly established. But the
flexible remedy for the violation of
of
remedy is necessarily designed, as all
rights already established by our prior
Stat
remedies are, to restore the victims of
decisions. It can be supported only by
ness
discriminatory conduct to the position
drastic expansion of the constitutional
they would have occupied in the absence
right itself, an expansion without any
the
of such conduct. Disparate treatment of
support in either constitutional principle
that
white and Negro students occurred
or precedent.22
tioni
singl
21. Since the Court has held that a resident of
schools within the district having a racial
has
a school district has a fundamental right pro-
composition of 57% Negro and 43% White.
Stat
tected by the Federal Constitution to vote in
In Wright v. Council of the City of Empo-
a district election, it would seem incongruous
ria, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d
to disparage the importance of the school dis-
51 (1972), the optimal desegregation plan
tric
trict in a different context. Kramer V. Union
would have resulted in the schools' being
trol
Free School District No. 15, 395 U.S. 621,
66% Negro and 34% white, substantially
noû
626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583
the same percentages as could be obtained
(1969). While the district there involved was
under one of the plans involved in this case.
Del
located in New York, none of the facts in our
And in United States V. Scotland Neck City
age
possession suggest that the relation of school
Board of Education, 407 U.S. 484, 491 n. 5,
was
districts to the State is significantly differ-
92 S.Ct. 2214, 2218. 33 L.Ed.2d 75 (1972), a
ent in New York from that in Michigan.
desegregation plan was implicitly approved
for a school district which had a racial com-
tion
22. The suggestion in the dissent of Mr. Jus-
tice MARSHALL that schools which have a
position of 77% Negro and 22% white. In
none of these cases was it even intimated
majority of Negro students are not "deseg-
regated," whatever the racial makeup of the
that "actual desegregation" could not be ac-
school district's population and however neu-
complished as long as the number of Negro
trally the district lines have been drawn and
students was greater than the number of
white students.
administered. finds no support in our prior
cases. In Green V. County School Board of
The dissents also seem to attach impor-
23.
New Kent County, 391 U.S. 430. 88 S.Ct.
tance to the metropolitan character of De-
1689, 20 L.Ed.2d 716 (1968), for example,
troit and neighboring school districts. But
this Court approved a desegregation plan
the constitutional principles applicable in
which would have resulted in each of the
school desegregation cases cannot vary in
418 U.S. 749
MILLIKEN V. BRADLEY
3129
Cite as 94 S.Ct. 3112 (1974)
III
original boundaries of the Detroit
1748
We recognize that the six-volume
School District, or any other school dis-
record presently under consideration
trict in Michigan, were established for
contains language and some specific in-
the purpose of creating, maintaining, or
cidental findings thought by the District
perpetuating segregation of races.
Court to afford a basis for interdistrict
There is no claim and there is no evi-
relief. However, these comparatively
dence hinting that petitioner outlying
isolated findings and brief comments
schools districts and their|predecessors, 749
or the 30-odd other school districts in
concern only one possible interdistrict
violation and are found in the context of
the tricounty area-but outside the Dis-
a proceeding that, as the District Court
trict Court's "desegregation area"-have
conceded, included no proof of segrega-
ever maintained or operated anything
tion practiced by any of the 85 suburban
but unitary school systems. Unitary
school districts surrounding Detroit.
school systems have been required for
The Court of Appeals, for example, re-
more than a century by the Michigan
lied on five factors which, it held,
Constitution as implemented by state
amounted to unconstitutional state ac-
law.23 Where the schools of only one
tion with respect to the violations found
district have been affected, there is
in the Detroit system:
no constitutional power in the courts
to decree relief balancing the racial
[10] (1) It held the State deriva-
composition of that district's schools
tively responsible for the Detroit
with those of the surrounding districts.
Board's violations on the theory that ac-
tions of Detroit as a political subdivision
[11] (2) There was evidence intro-
of the State were attributable to the
duced at trial that, during the late
State. Accepting, arguendo, the correct-
1950's, Carver School District, a predom-
ness of this finding of state responsibil-
inantly Negro suburban district, con-
ity for the segregated conditions within
tracted to have Negro high school stu-
the city of Detroit, it does not follow
dents sent to a predominantly Negro
that an interdistrict remedy is constitu-
school in Detroit. At the time, Carver
tionally justified or required. With a
was an independent school district that
single exception, discussed later, there
had no high school because, according to
has been no showing that either the
the trial evidence, "Carver District
State or any of the 85 outlying districts
did not have a place for ade-
engaged in activity that had a cross-dis-
quate high school facilities." 484 F.2d.,
trict effect. The boundaries of the De-
at 231. Accordingly, arrangements were
made with Northern High School in
troit School District, which are cotermi-
the abutting Detroit School District
nous with the boundaries of the city of
SO that the Carver high school stu-
Detroit, were established over a century
dents could obtain a secondary school edu-
ago by neutral legislation when the city
cation. In 1960 the Oak Park School Dis-
was incorporated; there is no evidence
trict, a predominantly white suburban
in the record, nor is there any sugges-
district, annexed the predominantly Ne-
tion by the respondents, that either the
gro Carver School District, through the
accordance with the size or population dis-
as to religion, creed, race, color or national
persal of the particular city, county, or
origin," Mich.Const.1963, Art. 8, § 2; that
school district as compared with neighboring
"no separate school or department shall be
areas.
kept for any person or persons on account
of race or color." Mich.Comp.Laws § 340.-
23. People ex rel. Workman V. Board of Edu-
355; and that "[a]ll persons, residents of
cation of Detroit, 18 Mich. 400 (1869) ; Act
a school district
shall have an
34. § 28. Mich.Pub.Acts of 1867. The Mich-
equal right to attend school therein," id.,
igan Constitution and laws provide that
$ 340.356. See also Act 319, Part II, c. 2,
"every school district shall provide for the
§ 9, Mich.Pub.Acts of 1927.
education of its pupils without discrimination
3130
94 SUPREME COURT REPORTER
418 U.S. 749
1750 initiative of local officials. Ibid. There
1949 and 1962 the State Board of Educa- 751
is, of course, no claim that the 1960 an-
tion exercised general authority as over-
nexation had a segregative purpose or re-
seer of site acquisitions by local boards
sult or that Oak Park now maintains a
for new school construction, and sug-
dual system.
gested that this state-approved school
construction "fostered segregation
According to the Court of Appeals,
throughout the Detroit Metropolitan
the arrangement during the late 1950's
area." 484 F.2d, at 241. This brief
which allowed Carver students to be ed-
comment, however, is not supported by
ucated within the Detroit District was
the evidence taken at trial since that ev-
dependent upon the "tacit or express"
idence was specifically limited to proof
approval of the State Board of Educa-
that schoolsite acquisition and school
tion and was the result of the refusal of
construction within the city of Detroit
the white suburban districts to accept
produced de jure segregation within the
the Carver students. Although there is
city itself. Id., at 235-238. Thus,
nothing in the record supporting the
there was no evidence suggesting that
Court of Appeals' supposition that sub-
the State's activities with respect to
urban white schools refused to accept
either school construction or site acqui-
the Carver students, it appears that this
sition within Detroit affected the racial
situation, whether with or without the
composition of the school population out-
State's consent, may have had a segrega-
side Detroit or, conversely, that the
tive effect on the school populations of
State's school construction and site ac-
the two districts involved. However,
quisition activities within the outlying
since "the nature of the violation deter-
districts affected the racial composition
mines the scope of the remedy," Swann,
of the schools within Detroit.
402 U.S., at 16, 91 S.Ct., at 1276, this iso-
lated instance affecting two of the
(5) The Court of Appeals also relied
school districts would not justify the
upon the District Court's finding:
broad metropolitanwide remedy contem-
plated by the District Court and ap-
"This and other financial limitations,
proved by the Court of Appeals, particu-
such as those on bonding and the
larly since it embraced potentially 52
working of the state aid formula
districts having no responsibility for the
whereby suburban districts were able
arrangement and involved 503,000 pupils
to make far larger per pupil expendi-
in addition to Detroit's 276,000 students.
tures despite less tax effort, have cre-
(3) The Court of Appeals cited the
ated and perpetuated systematic edu-
enactment of state legislation (Act 48)
cational inequalities." Id., at 239.
which had the effect of rescinding De-
troit's voluntary desegregation plan (the
However, neither the Court of Appeals
April 7 Plan). That plan, however, af-
nor the District Court offered any indi-
fected only 12 of 21 Detroit high schools
cation in the record or in their opinions
and had no causal connection with the
as to how, if at all, the availability of
distribution of pupils by race between
state-financed aid for some Michigan
Detroit and the other school districts
students outside Detroit, but not for
within the tricounty area.
those within Detroit, might have affect-
ed the racial character of any of the
753
(4) The court relied on the State's
State's school districts. Furthermore, as
authority to supervise schoolsite selec-
the respondents recognize, the applica-
tion and to approve building construc-
tion of our recent ruling in San Antonio
tion as a basis for holding the State re-
School District V. Rodriguez, 411 U.S. 1,
sponsible for the segregative results of
93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), to
the school construction program in De-
this state education financing system is
troit. Specifically, the Court of Appeals
questionable, and this issue was notjad- 752
asserted that during the period between
dressed by either the Court of Appeals
418 U.S. 754
MILLIKEN V. BRADLEY
3131
Cite as 94 S.Ct. 3112 (1974)
or the District Court. This, again, un-
the Court of Appeals is reversed and the
derscores the crucial fact that the theory
case is remanded for further proceed-
upon which the the case proceeded relat-
ings consistent with this opinion leading
ed solely to the establishment of Detroit
to prompt formulation of a decree di-
city violations as a basis for desegregat-
rected to eliminating the segregation
ing Detroit schools and that, at the time
found to exist in Detroit city schools, a
of trial, neither the parties nor the trial
remedy which has been delayed since
judge was concerned with a foundation
1970.
for interdistrict relief.2⁴
Reversed and remanded.
IV
Mr. Justice STEWART, concurring.
Petitioners have urged that they were
denied due process by the manner in
In joining the opinion of the Court, I
which the District Court limited their
think it appropriate, in view of some of
participation after intervention was al-
the extravagant language of the dissent-
lowed, thus precluding adequate opportu-
ing opinions, to state briefly my under-
nity to present evidence that they had
standing of what it is that the Court de-
committed no acts having a segregative
cides today.
effect in Detroit. In light of our hold-
ing that, absent an interdistrict viola-
The respondents commenced this suit
tion, there is no basis for an interdis-
in 1970, claiming only that a constitu-
trict remedy, we need not reach these
tionally impermissible allocation of edu-
claims. It is clear, however, that the
cational facilities along racial lines had
District Court, with the approval of the
occurred in public schools within a sin-
Court of Appeals, has provided an in-
gle school district whose lines were co-
terdistrict remedy in the face of a
terminous with those of the city of De-
record which shows no constitutional vi-
troit. In the course of the subsequent
olations that would call for equitable re-
proceedings, the District Court found
lief except within the city of Detroit.
that public school officials had contrib-
In these circumstances there was no oc-
uted to racial segregation within that
casion for the parties to address, or for
district by means of improper use of
the District Court to consider whether
zoning and attendance patterns, optional-
there were racially discriminatory acts
attendance areas, and building and site
for which any of the 53 outlying dis-
selection. This finding of a violation of
tricts. were responsible and which had
the Equal Protection Clause was upheld
direct and significant segregative effect
by the Court of Appeals, and is accepted
on schools of more than one district.
by this Court today. See ante, at 3124 n.
18. In the present posture of the case,
We conclude that the relief ordered by
therefore, the Court does not deal with
the District Court and affirmed by the
questions of substantive constitutional
Court of Appeals was based upon an er-
law. The basic issue now before the
roneous standard and was unsupported
Court concerns, rather, the appropriate
by record evidence that acts of the
exercise of federal equity jurisdiction.¹
outlying districts effected the discrimi-
nation found to exist in the schools of
No evidence was adduced and no find-
754
753 Detroit. Accordingly, the judgment of
ings were made in the District Court
24. Apparently. when the District Court sua
756, 99 L.Ed. 1083: "[E]quity has been
sponte, abruptly altered the theory of the
characterized by a practical flexibility in
case to include the possibility of multidis
shaping its remedies and by a facility for ad-
triet relief, neither the plaintiffs nor the
justing and reconciling public and private
trial judge considered amending the com-
needs. These [school desegregation] cases
plaint to embrace the new theory.
call for the exercise of these traditional at-
tributes of equity power."
I. As this Court stated in Brown V. Board of
Education. 349 U.S. 294, 300, 75 S.Ct. 753,
3132
94 SUPREME COURT REPORTER
418 U.S. 754
418 U
concerning the activities of school offi-
198-205, 93 S.Ct., at 2692-2696. But in
prop
cials in districts outside the city of De-
this case the Court of Appeals approved
school
troit, and no school officials from the
the concept of a remedial decree that
fact
outside districts even participated in the
would go beyond the boundaries of the
cont
suit until after the District Court had
district where the constitutional viola-
or
made the initial determination that is
tion was found, and include schools and
Pro
the focus of today's decision. In spite
schoolchildren in many other school dis-
sho
of the limited scope of the inquiry and
tricts that have presumptively been ad-
pos
the findings, the District Court conclud-
ministered in complete accord with the
Stat
ed that the only effective remedy for the
Constitution.
loy
constitutional violations found to have
show
existed within the city of Detroit was a
The opinion of the Court convincingly
an
desegregation plan calling for busing
demonstrates, ante, at 3126, that tradi-
not
pupils to and from school districts out-
tions of local control of schools, together
fore
side the city. The District Court found
with the difficulty of a judicially super-
abu
that any desegregation plan operating
vised restructuring of local administra-
tion of schools, render improper and in-
757
all
wholly 'within the corporate geographi-
cal limits of the city' would be deficient
equitable such an interdistrict response
of
to a constitutional violation found to
in
since it " 'would clearly make the entire
have occurred only within a single school
stat
Detroit public school system racially
district.
Bro
identifiable as Black.' 484 F.2d 215,
483
244, 243. The Court of Appeals, in
This is not to say, however, that an
the
affirming the decision that an interdis-
interdistrict remedy of the sort ap-
duts
trict remedy was necessary, noted that a
proved by the Court of Appeals would
plan limited to the city of Detroit "would
not be proper, or even necessary, in oth-
can
result in an all black school system imme-
er factual situations. Were it to be
Ed
diately surrounded by practically all
shown, for example, that state officials
dre
white suburban school systems, with an
had contributed to the separation of the
rem
overwhelmingly white majority popula-
races by drawing or redrawing school
fec
tion in the total metropolitan area."
district lines, see Haney V. County
Br
Id., at 245.
Board of Education of Sevier County,
The courts were in error for the sim-
429 F.2d 364; cf. Wright V. Council
of the City of Emporia, 407 U.S. 451,
the
ple reason that the remedy they thought
necessary was not commensurate with
92 S.Ct. 2196, 33 L.Ed.2d 51; Unit-
the constitutional violation found.
ed States V. Scotland Neck City Board
Within a single school district whose of-
of Education, 407 U.S. 484, 92 S.Ct. 2214,
2.
ficials have been shown to have engaged
33 L.Ed.2d 75; by transfer of school un-
in unconstitutional racial segregation, a
its between districts, United States V.
remedial decree that affects every indi-
Texas, 321 F.Supp. 1043, aff'd, 447 F.2d
vidual school may be dictated by "com-
441; Turner V. Warren County Board of
mon sense," see Keyes V. School District
Education, 313 F.Supp. 380; or by pur-
No. 1, Denver, Colorado, 413 U.S. 189,
poseful racially discriminatory use of
203, 93 S.Ct. 2686, 2695, 37 L.Ed.2d 548,
state housing or zoning laws, then a de-
and indeed may provide the only ef-
cree calling for transfer of pupils across
fective means to eliminate segregation
district lines or for restructuring of dis-
"root and branch," Green V. County
trict lines might well be appropriate.
School Board of New Kent County, 391
U.S. 430, 438, 88 S.Ct. 1689, 1693, 20
In this case, however, no such inter-
L.Ed.2d 716, and to "effectuate a transi-
district violation was shown. Indeed, no
tion to a racially nondiscriminatory
evidence at all concerning the adminis-
1755 schoolisystem." Brown V. Board of Edu-
tration of schools outside the city of De-
cation, 349 U.S. 294, 301, 75 S.Ct. 753,
troit was presented other than the fact
756, 99 L.Ed. 1083. See Keyes, supra, at
that these schools contained a higher 756
418 U.S. 757
MILLIKEN V. BRADLEY
3133
Cite as 94 S.Ct. 3112 (1974)
proportion of white pupils than did the
mines the scope of the remedy
schools within the city. Since the mere
Id., at 16, 91 S.Ct., at 1276.
fact of different racial compositions in
contiguous districts does not itself imply
The disposition of this case thus falls
or constitute a violation of the Equal
squarely under these principles. The
Protection Clause in the absence of a
only "condition that offends the Consti-
showing that such disparity was im-
tution" found by the District Court in
posed, fostered, or encouraged by the
this case is the existence of officially
State or its political subdivisions, it fol-
supported segregation in and among
lows that no interdistrict violation was
public schools in Detroit itself. There
shown in this case.2 The formulation of
were no findings that the differing ra-
an inter-district remedy was thus simply
cial composition between schools in the
not responsive to the factual record be-
city and in the outlying suburbs was
fore the District Court and was an
caused by official activity of any sort.
It follows that the decision to include in
abuse of that court's equitable powers.
the desegregation plan pupils from
1757 In reversing the decision of the Court
school districts outside Detroit was not
of Appeals this Court is in no way turn-
predicated upon any constitutional viola-
ing its back on the proscription of
tion involving those school districts. By
state-imposed segregation first voiced in
approving a remedy that would reach be-
Brown V. Board of Education, 347 U.S.
yond the limits of the city of Detroit to
483, 74 S.Ct. 686, 98 L.Ed. 873, or on
correct a constitutional violation found
the delineation of remedial powers and
to have occurred solely within that city
duties most recently expressed in Swann
the Court of Appeals thus went beyond
v. Charlotte-Mecklenburg Board of Edu-
the governing equitable principles estab-
cation, 402 U.S. 1, 91 S.Ct. 1267, 28 L.
lished in this Court's decisions.
Ed.2d 554. In Swann the Court ad-
dressed itself to the range of equitable
Mr. Justice DOUGLAS, dissenting.
remedies available to the courts to ef-
fectuate the desegregation mandated by
The Court of Appeals has acted re-
Brown and its progeny, noting that the
sponsibly in these cases and we should
task in choosing appropriate relief is
affirm its judgment. This was the
"to correct
the condition
fourth time the case was before it over
that offends the Constitution," and
a span of less than three years. The
that "the nature of the violation deter-
Court of Appeals affirmed the District
2. My Brother MARSHALL seems to ignore
known and perhaps unknowable factors such
this fundamental fact when he states, post
as in-migration. birth rates, economic
at 3153. that "the most essential finding
changes, or cumulative acts of private racial
[made by the District Court] was that Ne-
fears-that accounts for the "growing core
gro children in Detroit had been confined by
of Negro schools," a "core" that has grown
intentional acts of segregation to a growing
to include virtually the entire city. The
core of Negro schools surrounded by a re-
Constitution simply does not allow federal
eeding ring of white schools." This conclu-
courts to attempt to change that situation
sion is simply not substantiated by the
unless and until it is shown that the State.
record presented in this case. The record
or its political subdivisions, have contributed
here does support the claim made by the re-
to cause the situation to exist. No record
spondents that white and Negro students
has been made in this case showing that the
within Detroit who otherwise would have at-
racial composition of the Detroit school pop-
tended school together were separated by
ulation or that residential patterns within
acts of the State or its subdivision. How-
Detroit and in the surrounding areas were
ever, segregative acts within the city alone
in any significant measure caused by govern-
cannot be presumed to have produced-and
mental activity. and it follows that the situa-
no factual showing was made that they did
tion over which my dissenting Brothers ex-
produce-an increase in the number of Ne-
press concern cannot serve as the predicate
gro students in the city as a whole. It is
for the remedy adopted by the District
this essential fact of a predominantly Negro
Court and approved by the Court of Ap-
school population in Detroit-caused by un-
peals.
3134
94 SUPREME COURT REPORTER
418 U.S. 758
418 US
758 Court on the issue of segregation and on
State supervises schoolsite selection.³
760 know
the "Detroit-only" plans of desegrega-
The construction is done through mu-
poore
tion. The Court of Appeals also ap-
nicipal bonds approved by several state
San
proved in principle the use of a metro-
agencies.⁴ Education in Michigan is a
guez
politan area plan, vacating and remand-
state project with very little completely
Ed.2
ing only to allow the other affected
local control,5 except that the schools are
school
school districts to be brought in as par-
financed locally, not on a statewide ba-
way
ties, and in other minor respects.
sis. Indeed the proposal to put school
759
clusio
funding in Michigan on a statewide ba-
Stat
We have before us today no plan for
sis was defeated at the polls in Novem-
payet
integration. The only orders entered SO
ber 1972.6 Yet the school districts by
761
Tod
far are interlocutory. No new princi-
state law are agencies of the State.
means
ples of law are presented here. Metro-
State action is indeed challenged as vio-
Equal
politan treatment of metropolitan prob-
lating the Equal Protection Clause.
school
lems is commonplace. If this were a
Whatever the reach of that claim may
thoug
sewage problem or a water problem, or
be, it certainly is aimed at discrimina-
"separ
an energy problem, there can be no
tion based on race.
doubt that Michigan would stay well
So
Therefore as the Court of Appeals
within federal constitutional bounds if
cerne
held there can be no doubt that as a
it sought a metropolitan remedy. In
from
matter of Michigan law the State it-
Bradley V. School Board of City of Rich-
blac
self has the final say as to where and
mond, 4 Cir., 462 F.2d 1058, aff'd by an
cilitr
how school district lines should be
equally divided Court, 412 U.S. 92, 93 S.
treat
drawn.8
Ct. 1952, 36 L.Ed.2d 771, we had a case
involving the Virginia school system
When we rule against the metropoli-
trict
where local school boards had "exclusive
tan area remedy we take a step that will
189
jurisdiction" of the problem, not "the
likely put the problems of the blacks
3721
State Board of Education," 462 F.2d, at
and our society back to the period that
school
1067. Here the Michigan educational
antedated the "separate but equal" re-
ence
system is unitary, maintained and sup-
gime of Plessy V. Ferguson, 163 U.S. 537,
gati
16 S.Ct. 1138, 41 L.Ed. 256. The reason
ported by the legislature and under the
is simple.
10.
general supervision of the State Board
of Education.1 The State controls the
The inner core of Detroit is now rath-
boundaries of school districts.² The
er solidly black;9 and the blacks, we
1. Mich.Const., Art. S, §§ 2, 3.
8. See n. 2, supra.
2. See 484 F.2d 215, 247-248: Mich.Comp.
9. A tremendous change has occurred in the
Laws §§ 340.402, 340.431, 340.447, 388.681
distribution of this country's black popula-
II
(1970).
tion since World War I. See Hauser, Dem-
3. Mich.Comp.Laws § 388.851 (1948), as
ographic Factors in the Integration of the
Ca
Negro. Daedalus 847-877 (fall 1965). In
amended by Act 231. Mich.Pub.Acts of 1949,
1910. 73% of all blacks lived on farms and in
tri
and Act 175, Mich.Pub.Acts 1962.
rural areas: by 1960, 73% lived in urban
4. See Mich.Comp.Laws §§ 132.1 and 132.2
areas, mainly in the largest metropolitan
Ca
(1970) ; 3 App. 157.
areas. Moreover. due to the fact that the
You
5. See 484 F.2d at 248-249.
black population is younger than the white
population. the concentration of blacks in the
Gre
6. See Detroit Free Press, Nov. S, 1972. P.
cities is even more pronounced for the school-
$1.1
1A, col. 3. Michigan has recently passed
age population. The pattern of change which
Stat
has existed since World War I is continuing.
Fint
legislation which could eliminate some, but
and hence the proportion of blacks in the
cati
not all, of the inequities in school financing.
urban North and West will continue to in-
furt
See Act 101, Mich.Pub.Acts of 1973.
crease. Dept. of Health. Education. and
rent
7. See 484 F.2d, at 246-247 Mich.Const. Art.
Welfare, J. Coleman et al., Equality of Educa-
tion
distr
8, §§ 2, 3.
tional Opportunity 39-40 (1966).
418 U.S. 762
MILLIKEN V. BRADLEY
3135
Cite as 94 S.Ct. 3112 (1974)
LT60 know, in many instances are likely toybe
action for Fourteenth Amendment pur-
poorer, 10 just as were the Chicanos in
poses when it draws the lines that con-
San Antonio School District V. Rodri-
fine it to a given area, when it builds
guez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.
schools at particular sites, or when it al-
Ed.2d 16. By that decision the poorer
locates students. The creation of the
school districts 11 must pay their own
school districts in Metropolitan Detroit
way. It is therefore a foregone con-
either maintained existing segregation
clusion that we have now given the
or caused additional segregation. Re-
States a formula whereby the poor must
strictive covenants maintained by state
pay their own way. 12
action or inaction build black ghettos.
761 Today's decision, given Rodriguez,
It is state action when public funds are
means that there is no violation of the
dispensed by housing agencies to build
Equal Protection Clause though the
racial ghettos. Where a community is
schools are segregated by race and
racially mixed and school authorities seg-
though the black schools are not only
regate schools, or assign black teachers to
"separate" but "inferior."
black schools or close schools in fringe
areas and build new schools in black areas
So far as equal protection is con-
and in more distant white areas, the State
cerned we are now in a dramatic retreat
creates and nurtures a segregated school
from the 7-to-1 decision in 1896 that
system, just as surely as did those States
blacks could be segregated in public fa-
involved in Brown V. Board of Educa-
cilities, provided they received equal
tion, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.
treatment.
873, when they maintained dual school
As I indicated in Keyes V. School Dis-
systems.
trict No. 1, Denver, Colorado, 413 U.S.
189, 214-217, 93 S.Ct. 2686, 2700-2701,
All these conditions and more were
37 L.Ed.2d 548, there is so far as the
found by the District Court to exist.
school cases go no constitutional differ-
The issue is not whether there should be
ence between de facto and de jure segre-
racial balance but whether the State's
gation. Each school board performs state
use of various devices that end up with 762
10. There are some definite and systematic
tional need. City students, with greater
directions of difference between the schools
than average education deficiencies, consist-
attended by minorities and those attended by
ently have less money spent on their educa-
the majority. It appears to be in the most
tion and have higher pupil/teacher ratios
academically related areas that the schools
than do their high-income counterparts in
of minority pupils show the most consistent
the favored schools of suburbia." Glickstein
deficiencies." Dept. of Health, Education, and
& Want, Inequality in School Financing:
Welfare. Coleman et al., supra n. 9, at 120.
The Role of the Law, 25 Stan.L.Rev. 335,
II. That some school districts are markedly
338 (1973).
poorer than others is beyond question. The
12. Cities face an especially difficult problem
California Supreme Court has noted that
in paying the cost of education, since they
per-pupil expenditures in two different dis-
have the "municipal overburden" which re-
tricts-both located in the same county-
sults from greater costs for health, public
were $2,223 and $616. Serrano V. Priest, 5
safety, sanitation, public works. transporta-
Cal.3d 584, 600 n. 15 (1971). In New
tion, public welfare, public housing. and rec-
York the Fleischmann Commission report-
reation. Because of municipal overburden.
ed that the two Long Island districts of
cities on the average devote only about 30%
Great Neck and Levittown spent $2,078 and
of their budgets to their schools. This com-
$1,189 respectively per pupil. 1 New York
pares with the over 50% which is spent on
State Commission on the Quality. Cost, and
schools by the suburbs. J. Berke & J. Calla-
Financing of Elementary and Secondary Edu-
han, Inequities in School Finance (1971). re-
cation, Fleischmann Report 58 (1973). "A
printed in Senate Select Committee on Equal
further glaring inequity resulting from the cur-
Educational Opportunity. 92d Cong., 2d Sess.,
rent systems of school finance is that varia-
Report on Issues in School Finance 129, 142
tions in per pupil expenditures among school
(Comm. 1972) ; see Glickstein & Want,
districts tend to be inversely related to educa-
supra, 11. 11. at 387.
3136
94 SUPREME COURT REPORTER
418 U.S. 762
black schools and white schools brought
trict and may not reach into adjoining
the Equal Protection Clause into effect.
or surrounding districts unless and until
Given the State's control over the educa-
it is proved there has been some sort of
tional system in Michigan, the fact that
"interdistrict violation"-unless uncon-
the black schools are in one district and
stitutional actions of the Detroit School
the white schools are in another is not
Board have had a segregative impact on
controlling-either constitutionally or
other districts, or unless the segregated
equitably. 13 No specific plan has yet
condition of the Detroit schools has it-
been adopted. We are still at an inter-
self been influenced by segregative prac-
locutory stage of a long drawn-out judi-
tices in those surrounding districts into
cial effort at school desegregation. It is
which it is proposed to extend the reme-
conceivable that ghettos develop on their
dy.
own without any hint of state action.
But since Michigan by one device or an-
Regretfully, and for several reasons, I
other has over the years created black
can join neither the Court's judgment
school districts and white school dis-
nor its opinion. The core of my disa-
tricts, the task of equity is to provide a
greement is that deliberate acts of seg-
unitary system for the affected area
regation and their consequences will go
where, as here, the State washes its
unremedied, not because a remedy would
hands of its own creations.
be infeasible or unreasonable in terms of
the usual criteria governing school de-
Mr. Justice WHITE, with whom Mr.
segregation cases, but because an effec-
Justice DOUGLAS, Mr. Justice BREN-
tive remedy would cause what the Court
NAN, and Mr. Justice MARSHALL
considers to be undue administrative in-
join, dissenting.
convenience to the State. The result is
that the State of Michigan, the entity at
The District Court and the Court of
which the Fourteenth Amendment is di-
Appeals found that over a long period of
rected, has successfully insulated itself
years those in charge of the Michigan
from its duty to provide effective deseg-
public schools engaged in various prac-
regation remedies by vesting sufficient
tices calculated to effect the segregation
power over its public schools in its local
of the Detroit school system. The Court
school districts. If this is the case in
does not question these findings, nor
Michigan, it will be the case in most
could it reasonably do SO. Neither does
States.
it question the obligation of the federal
courts to devise a feasible and effective
There are undoubted practical as well
remedy. But it promptly cripples the
as legal limits to the remedial powers of
ability of the judiciary to perform this
federal courts in school desegregation
task, which is of fundamental impor-
cases. The Court has made it clear that
tance to our constitutional system, by
the achievement of any particular degree
[763 fashioning a strict rule that remedies in
of racial balance in the school system is
school cases must stop at the school dis-
not required by the Constitution nor 764
triet line unless certain other conditions
may it be the primary focus of a court
765
are met. As applied here, the remedy
in devising an acceptable remedy for de
for unquestioned violations of the pro-
jure segregation. A variety of proce-
tection rights of Detroit's Negroes by
dures and techniques are available to a
the Detroit School Board and the
district court engrossed in fashioning
State of Michigan must be totally con-
remedies in a case such as this; but the
fined to the limits of the school dis-
courts must keep in mind that they are
13. Mr. Justice STEWART indicates that eq-
seem to me that the equities are stronger in
uitable factors weigh in favor of local school
favor of the children of Detroit who have
control and the avoidance of administrative
been deprived of their constitutional right to
difficulty given the lack of an "interdis-
equal treatment by the State of Michigan.
triet" violation. Ante, at 3132. It would
418 U.S. 766
MILLIKEN V. BRADLEY
3137
Cite as 94 S.Ct. 3112 (1974)
dealing with the process of educating
fiable areas in the city. The 1970 public
the young, including the very young.
school enrollment in the city school dis-
The task is not to devise a system of
trict totaled 289,763 and was 63.6% Ne-
pains and penalties to punish constitut-
gro and 34.8% white.1 If "racial bal-
tional violations brought to light. Rath-
ance" were achieved in every school in
er, it is to desegregate an educational
the district, each school would be ap-
system in which the races have been
proximately 64% Negro. A remedy con-
kept apart, without, at the same time,
fined to the district could achieve no
losing sight of the central educational
more desegregation. Furthermore, the
function of the schools.
proposed intracity remedies were beset
with practical problems. None of the
Viewed in this light, remedies calling
plans limited to the school district was
for school zoning, pairing, and pupil as-
satisfactory to the District Court. The
signments, become more and more sus-
most promising proposal, submitted by
pect as they require that schoolchildren
respondents, who were the plaintiffs in
spend more and more time in buses
the District Court, would "leave many of
going to and from school and that more
its schools 75 to 90 per cent Black."
and more educational dollars be diverted
484 F.2d 215, 244 (CA6 1973).* Trans-
to transportation systems. Manifestly,
portation on a "vast scale" would be
these considerations are of immediate
required; 900 buses would have to be
and urgent concern when the issue is the
purchased for the transportation of pu-
desegregation of a city school system
pils who are not now bused. Id., at
where residential patterns are predomi-
243. The District Court also found that
nantly segregated and the respective
the plan "would change a school system
areas occupied by blacks and whites are
which is now Black and White to one
heavily populated and geographically ex-
that would be perceived as Black, there-
tensive. Thus, if one postulates a met-
by increasing the flight of Whites from
ropolitan school system covering a suffi-
the city and the system, thereby increas-
ciently large area, with the population
ing the Black student population." Id.,
evenly divided between whites and Ne-
at 244. For the District Court, "[t]he
groes and with the races occupying iden-
conclusion, under the evidence in this
tifiable residential areas, there will be
case, is inescapable that relief of segre-
very real practical limits on the extent
to which racially identifiable schools can
gation in the public schools of the City 766
be eliminated within the school district.
of Detroit cannot be accomplished with-
in the corporate geographical limits of
It is also apparent that the larger the
the city." Ibid.
proportion of Negroes in the area, the
more difficult it would be to avoid hav-
The District Court therefore consid-
ing a substantial number of all-black or
nearly all-black schools.
ered extending its remedy to the sub-
urbs. After hearings, it concluded that
The Detroit school district is both
a much more effective desegregation
large and heavily populated. It covers
plan could be implemented if the subur-
1765 139.6 square miles, encireles twojentirely
ban districts were included. In proceed-
separate cities and school districts, and
ing to design its plan on the basis that
surrounds a third city on three sides.
student bus rides to and from school
Also, whites and Negroes live in identi-
should not exceed 40 minutes each way
I. The percentage of Negro pupils in the De-
ployees in the Detroit Public Schools, October
troit student population rose to 64.9% in
1972. and October 1973; 484 F.24 215, 250.
1971, to 67.3% in 1972, and to 69.8% in
1973, amid a metropolitan school population
2. The District Court's ruling on the De-
whose racial composition in 1970 was 81%
troit-only desegregation plans is set out in
white and 19% Negro. 5 App. 16; Racial-
full by the Court of Appeals, id., at 242-
Ethnic Distribution of Students and Em-
245, and is not otherwise officially reported.
3138
94 SUPREME COURT REPORTER
418 U.S. 766
as a general matter, the court's express
(1896)," and "would be opening a way
finding was that "[f]or all the reasons
to nullify Brown V. Board of Education
stated heretofore-including time, dis-
which overruled Plessy.
tance, and transportation factors-de-
484 F.2d, at 249.
segregation within the area described is
physically easier and more practicable
This Court now reverses the Court of
and feasible, than desegregation efforts
Appeals. It does not question the Dis-
limited to the corporate geographic lim-
trict Court's findings that any feasible
its of the city of Detroit." 345 F.Supp.
Detroit-only plan would leave many
914, 930 (ED Mich.1972).
schools 75 to 90 percent black and that
the district would become progressively
The Court of Appeals agreed with the
more black as whites left the city. Nei-
District Court that the remedy must ex-
ther does the Court suggest that includ-
tend beyond the city limits of Detroit. It
ing the suburbs in a desegregation plan
concluded that "[i]n the instant case the
would be impractical or infeasible be-
only feasible desegregation plan involves
cause of educational considerations, be-
the crossing of the boundary lines be-
cause of the number of children requir-
tween the Detroit School District and
ing transportation, or because of the
adjacent or nearby school districts for
length of their rides. Indeed, the Court
the limited purpose of providing an ef-
leaves unchallenged the District Court's
fective desegregation plan." 484 F.2d,
conclusion that a plan including the sub-
at 249. (Emphasis added.) It also
urbs would be physically easier and
agreed that "any Detroit only desegre-
more practical and feasible than a De-
gation plan will lead directly to a single
troit-only plan. Whereas the most
segregated Detroit school district over-
promising Detroit-only plan, for exam-
whelmingly black in all of its schools,
ple, would have entailed the purchase of
surrounded by a ring of suburbs and
900 buses, the metropolitan plan would
suburban school districts overwhelming-
involve the acquisition of no more than
ly white in composition in a State in
350 new vehicles.
which the racial composition is 87 per
cent white and 13 per cent black." Ibid.
Despite the fact. that a metropolitan
769
There was "more than ample support for
remedy, if the findings of the District
the District Judge's findings of uncon-
Court accepted by the Court of Appeals
stitutional segregation by race resulting
are to be credited, would more effective-
in major part from action and inaction
ly desegregate the Detroit schools, would
of public authorities, both local and
prevent resegregation,³ and would be
State.
Under this record a re-
easier and more feasible from many
medial order of a court of equity which
standpoints, the Court fashions out of
1768
left the Detroit school system over-
whole cloth an arbitrary rule that reme-
1767 whelmingly black (for the foreseeable
dies for constitutional violations occur-
future) surrounded by suburban school
ring in a single Michigan school district
systems overwhelmingly white cannot
must stop at the school district line.
correct the constitutional violations
Apparently, no matter how much less
herein found." Id., at 250. To conclude
burdensome or more effective and effi-
otherwise, the Court of Appeals an-
cient in many respects, such as transpor-
nounced, would call up "haunting mémo-
tation, the metropolitan plan might be,
ries of the now long overruled and dis-
the school district line may not be
credited 'separate but equal doctrine' of
crossed. Otherwise, it seems, there
Plessy V. Ferguson, 163 U.S. 537 [16 S.
would be too much disruption of the
Ct. 1138, 41 L.Ed. 256]
Michigan scheme for managing its edu-
3. The Court has previously disapproved the
Monroe V. Board of Comm'rs, 391 U.S.
implementation of proposed desegregation
450, 459-460, 88 S.Ct. 1700, 1705, 20 L.Ed.
plans which operate to permit resegregation.
2d 733 (1968), ("free transfer" plan).
418 U.S. 770
MILLIKEN- V. BRADLEY
3139
Cite as 94 S.Ct. 3112 (1974)
cational system, too much confusion, and
undue difficulties for the State in the
too much administrative burden.
management of its public schools. In
The District Court, on the scene and
the area of what constitutes an accepta-
familiar with local conditions, had a
ble desegregation plan, "we must of ne-
wholly different view. The Court of
cessity rely to a large extent, as this
Appeals also addressed itself at length
Court has for more than 16 years, on
to matters of local law and to the prob-
the informed judgment of the district
lems that interdistrict remedies might
courts in the first instance and on
present to the State of Michigan. Its
courts of appeals." Swann V. Char-
conclusion, flatly contrary to that of this
lotte-Mecklenburg Board of Education,
Court, was that "the constitutional right
402 U.S. 1, 28, 91 S.Ct. 1267, 1282, 28
to equality before the law [is not]
L.Ed.2d 554 (1971). Obviously, what-
hemmed in by the boundaries of a school
ever difficulties there might be, they are
district" and that an interdistrict reme-
surmountable; for the Court itself con-
dy
cedes that, had there been sufficient evi-
dence of an interdistrict violation, the
"is supported by the status of school
District Court could have fashioned a
districts under Michigan law and by
single remedy for the districts implicat-
the historical control exercised over
ed rather than a different remedy for
local school districts by the legislature
each district in which the violation had 770
of Michigan and by State agencies
occurred or had an impact.
and officials
[I]t is well
established under the Constitution and
I am even more mystified as to how the
laws of Michigan that the public
Court can ignore the legal reality that
school system is a State function and
the constitutional violations, even if oc-
that local school districts are instru-
curring locally, were committed by gov-
mentalities of the State created for
ernmental entities for which the State is
administrative convenience." 4 484
responsible and that it is the State that
F.2d, at 245-246.
must respond to the command of the
Fourteenth Amendment. An interdis-
769 LI am surprised that the Court, sitting
trict remedy for the infringements that
at this distance from the State of Michi-
occurred in this case is well within the
gan, claims better insight than the
confines and powers of the State, which
Court of Appeals and the District Court
is the governmental entity ultimately re-
as to whether an interdistrict remedy
sponsible for desegregating its schools.
for equal protection violations practiced
The Michigan Supreme Court has ob-
by the State of Michigan would involve
served that "[t]he school district is a
4. The Court of Appeals also noted several
segregation plan by the Detroit Board of
specific instances of school district mergers
Education as evidencing state control over
ordered by the State Board of Education for
local school district affairs. Ibid. Finally,
financial reasons. 484 F.2d, at 247. Limi-
it is also relevant to note that the District
tations on the authority of local school dis-
Court found that the school district bounda-
tricts were also outlined by the Court of
ries in that segment of the metropolitan area
Appeals:
preliminarily designated as the desegregation
"Local school districts, unless they have
area "in general bear no relationship to oth-
the approval of the State Board of Educa-
er municipal, county, or special district gov-
tion or the Superintendent of Public Instrue-
ernments, needs or services," that some edu-
tion, cannot consolidate with another school
cational services are already provided to stu-
district, annex territory. divide or attach
dents on an interdistrict basis requiring
parts of other districts, borrow monies in an-
their travel from one district to another, and
ticipation of State aid, or construct, recon-
that local communities in the metropolitan
struet or remodel school buildings or addi-
area share noneducational interests in com-
tions to them." Id., at 249. (Footnotes and
mon, which do not adhere to school district
supporting statutory citations omitted.)
lines, and have applied metropolitan solu-
And the Court of Appeals properly consid-
tions to other governmental needs. 345 F.
ered the State's statutory attempt to undo
Supp. 914, 934-935 (E.D.Mich.1972).
the adoption of a voluntary high school de-
3140
94 SUPREME COURT REPORTER
418 U.S. 770
State agency," Attorney General ex rel.
troit Board of Education, a local instru-
Kies V. Lowrey, 131 Mich. 639, 644, 92 N.
mentality of the State, violated the con-
W. 289, 290 (1902), and that '[e]duca-
stitutional rights of the Negro students
tion in Michigan belongs to the State.
in Detroit's public schools and required
It is no part of the local self-government
equitable relief sufficient to accomplish
inherent in the township or municipality,
the maximum, practical desegregation
except so far as the legislature may
within the power of the political body
choose to make it such. The Constitu-
against which the Fourteenth Amend-
tion has turned the whole subject over
ment directs its proscriptions. No
to the legislature.
Attor-
"State" may deny any individual the
ney General ex rel. Lacharias V. Detroit
equal protection of the laws; and if the
Board of Education, 154 Mich. 584, 590,
Constitution and the Supremacy Clause
118 N.W. 606, 609 (1908).
are to have any substance at all, the
courts must be free to devise workable
It is unnecessary to catalogue at
remedies against the political entity with
length the various public misdeeds found
the effective power to determine local
by the District Court and the Court of
choice. It is also the case here that the
Appeals to have contributed to the
State's legislative interdiction of De-
present segregation of the Detroit public
troit's voluntary effort to desegregate its
schools. The legislature contributed di-
school system was unconstitutional. See
rectly by enacting a statute overriding a
North Carolina State Board of Education
partial high school desegregation plan
V. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28
voluntarily adopted by the Detroit Board
L.Ed.2d 586 (1971).
of Education. Indirectly, the trial court
found the State was accountable for the
The Court draws the remedial line at
thinly disguised, pervasive acts of segre-
the Detroit school district boundary,
gation committed by the Detroit Board,5
even though the Fourteenth Amendment
771
for Detroit's school construction plans
is addressed to the State and even though
that would promote segregation, and for
the State denies equal protection of the
772
the Detroit school district's not having
laws when its public agencies, acting in
funds for pupil transportation within
its behalf, invidiously discriminate. The
the district. The State was also charge-
State's default is "the condition that of-
able with responsibility for the trans-
fends the Constitution," Swann V. Char-
portation of Negro high school students
lotte-Mecklenburg Board of Education,
773
in the late 1950's from the suburban
supra, 402 U.S., at 16, 91 S.Ct. at 1277,
Ferndale School District, past closer sub-
and state officials may therefore be
urban and Detroit high schools with pre-
ordered to take the necessary measures
dominantly white student bodies, to a
to completely eliminate from the Detroit
predominantly Negro high school within
public schools "all vestiges of state-im-
Detroit. Swann V. Charlotte-Mecklen-
posed segregation." Id., at 15, 91 S.Ct.
burg Board of Education, supra, 402 U.
at 1275. I cannot understand, nor does
S., at 20-21, 91 S.Ct. at 1278, and Keyes
the majority satisfactorily explain, why
V. School District No. 1, Denver, Colo-
a federal court may not order an appro-
rado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.
priate interdistrict remedy, if this is nec-
Ed.2d 548 (1973), make abundantly
essary or more effective to accomplish
clear that the tactics employed by the De-
this constitutionally mandated task. As
5. These included the creation and alteration
schools, the use of optional attendance areas
of attendance zones and feeder patterns
in neighborhoods in which Negro families
from the elementary to the secondary
had recently begun to settle to permit white
schools in a manner naturally and predicta-
students to transfer to predominantly white
bly perpetuating racial segregation of stu-
schools nearer the city limits, and the con-
dents, the transportation of Negro students
struction of schools in the heart of residen-
beyond predominantly white schools with
tially segregated areas, thereby maximizing
available space to predominantly Negro
school segregation.
418 U.S. 774
MILLIKEN V. BRADLEY
3141
Cite as 94 S.Ct. 3112 (1974)
the Court unanimously observed in tive effect which the condition of segre-
Swann: "Once a right and a violation
gation in one school district might have
have been shown, the scope of a district
had on the schools of a neighboring dis-
court's equitable powers to remedy past
trict. The same situation obtains here
wrongs is broad, for breadth and flexi-
and the same remedial power is available
bility are inherent in equitable rem-
to the District Court.
edies." Ibid. In this case, both the
Later cases reinforced the clearly es-
right and the State's Fourteenth Amend-
sential rules that state officials are fully
ment violation have concededly been
answerable for unlawfully caused condi-
fully established, and there is no ac-
tions of school segregation which can ef-
ceptable reason for permitting the party
fectively be controlled only by steps be-
responsible for the constitutional viola-
yond the authority of local school dis-
tion to contain the remedial powers of
tricts to take, and that the equity power
the federal court within administrative
of the district courts includes the ability
boundaries over which the transgressor
to order such measures implemented.
itself has plenary power.
When the highest officials of the State
The unwavering decisions of this
of Arkansas impeded a federal court or-
Court over the past 20 years support the
der to desegregate the public schools un-
assumption of the Court of Appeals that
der the immediate jurisdiction of the
the District Court's remedial power does
Little Rock School Board, this Court
not cease at the school district line. The
refused to accept the local board's asser-
Court's first formulation of the remedial
tion of its good faith as a legal excuse
principles to be followed in disestablish-
for delay in implementing the desegre-
ing racially discriminatory school sys-
gation order. The Court emphasized
tems recognized the variety of problems
that "from the point of view of the
arising from different local school condi-
Fourteenth Amendment, they [the local
tions and the necessity for that "practi-
school board members] stand in this liti-
cal flexibility" traditionally associated
gation as the agents of the State." Coop-
with courts of equity. Brown V. Board
er V. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401,
of Education, 349 U.S. 294, 299-301, 75
1408, 3 L.Ed.2d 5 (1958). Perhaps 774
S.Ct. 753, 755-756, 99 L.Ed. 1083,
more importantly for present purposes,
(1955) (Brown II). Indeed, the district
the Court went on to state:
773 courts to which the Brown cases were
"The record before us clearly estab-
remanded for the formulation of remedial
lishes that the growth of the Board's
decrees were specifically instructed that
difficulties to a magnitude beyond its
they might consider, inter alia, "revision
unaided power to control is the prod-
of school districts and attendance areas
uct of state action. Those difficulties
into compact units to achieve a system
can also be brought under con-
of determining admission to the pub-
trol by state action." Ibid.
lic schools on a nonracial basis
Id., at 300-301, 75 S.Ct. at
See also Griffin V. School Board, 377
756. The malady addressed in Brown II
U.S. 218, 228, 233-234, 84 S.Ct. 1226,
was the statewide policy of requiring or
1231, 1234-1235, 12 L.Ed.2d 256 (1964).
permitting school segregation on the ba-
In the context of dual school systems,
sis of race, while the record here con-
the Court subsequently made clear the
cerns segregated schools only in the city
"affirmative duty to take whatever steps
of Detroit. The obligation to rectify the
might be necessary to convert to a uni-
unlawful condition nevertheless rests
tary system in which racial discrimina-
on the State. The permissible revision
tion would be eliminated root and
of school districts contemplated in
branch" and to come forward with a de-
Brown II rested on the State's responsi-
segregation plan that "promises realisti-
bility for desegregating its unlawfully
cally to work now." Green V. County
segregated schools, not on any segrega-
School Board of New Kent County, 391
3142
94 SUPREME COURT REPORTER
418 U.S. 774
418,U
U.S. 430, 437-438, 439, 88 S.Ct. 1689,
at 1281. Nor was there any dispute
creat
1694, 20 L.Ed.2d 716 (1968). "Freedom
that to break up the dual school system,
in
of choice" plans were rejected as ac-
it was within the District Court's
proc
ceptable desegregation measures where
"broad remedial powers" to employ a
tem
"reasonably available other ways
"frank-and sometimes drastic-gerry-
meni
promising speedier and more effective
mandering of school districts and at-
the
conversion to a unitary, nonracial school
tendance zones," as well as "pairing,
sche
system
exist. Id., at 441, 88 S.
'clustering,' or 'grouping' of schools," to
tail
Ct., at 1696. Imperative insistence on
desegregate the "formerly all-Negro
immediate full desegregation of dual
schools," despite the fact that these
of
school systems "to operate now and here-
zones might not be compact or contig-
court
after only unitary schools" was reiterated
uous and might be "on opposite ends of
men
in Alexander V. Holmes County Board of
the city." Id., at 27, 91 S.Ct. at 1282.
exten
Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24
The school board in that case had juris-
sive
L.Ed.2d 19 (1969), and Carter V. West
diction over a 550-square-mile area en-
"the
Feliciana Parish School Board, 396 U.S.
compassing the city of Charlotte and sur-
dese
290, 90 S.Ct. 608, 24 L.Ed.2d 477
rounding Mecklenburg County, North
tatio
(1970).
Carolina. The Mobile County, Alabama,
eral
The breadth of the equitable authority
board in Davis embraced a 1,248-square-
had
of the district courts to accomplish these
mile area, including the city of Mobile.
fect
comprehensive tasks was reaffirmed in
Yet the Court approved the District
Ame
much greater detail in Swann V. Char-
Court's authority to award countywide
or ac
lotte-Mecklenburg Board of Education,
relief in each case in order to accomplish
cated
supra, and the companion case of Davis
desegregation of the dual school system.
the
V. School Comm'rs of Mobile County, 402
dise
U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577
Even more recently, the Court specifi-
Until
(1971), where there was unanimous as-
cally rejected the claim that a new
toin
sent to the following propositions:
school district, which admittedly would
operate a unitary school system within
777
"Having once found a violation, the
cess
its borders, was beyond the reach of a
district judge or school authorities
haz
court-ordered desegregation plan for 776
should make every effort to achieve
dref
775
other school districts, where the effec-
the greatest possible degree of actual
the
tiveness of the plan as to the other dis-
desegregation, taking into account the
the
tricts depended upon the availability of
practicalities of the situation. A dis-
pell
the facilities and student population of
trict court may and should consider
the
the new district. In Wright V. Council
the use of all available techniques in-
of City of Emporia, 407 U.S. 451, 470,
cluding restructuring of attendance
87
92 S.Ct. 2196, 2207, 33 L.Ed.2d 51
zones and both contiguous and noncon-
(1972), we held "that a new school dis-
tiguous attendance zones.
ter
trict may not be created where its effect
The measure of any desegregation
would be to impede the process of dis-
plan is its effectiveness." Id., at 37,
mantling a dual system." Mr. Justice
91 S.Ct. at 1292.
th
Stewart's opinion for the Court made
del
No suggestion was made that interdis-
clear that if a proposal to erect new dis-
trict relief was not an available tech-
trict boundary lines "would impede the
par
nique. In Swann V. Charlotte-Mecklen-
dismantling of the [pre-existing] dual
pro
burg Board of Education itself, the
system, then a district court, in the ex-
to
Court, without dissent, recognized that
ercise of its remedial discretion, may en-
dual
the District Judge, in fulfilling his obli-
join it from being carried out." Id., at
less
gation to "make every effort to achieve
460, 92 S.Ct. at 2203. In United States
for
the greatest possible degree of actual de-
V. Scotland Neck Board of Education,
ty
segregation will thus necessarily be
407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.
enc
concerned with the elimination of one-
2d 75 (1972), this same standard was
lat
race schools." 402 U.S., at 26, 91 S.Ct.,
applied to forbid North Carolina from
418 U.S. 778
MILLIKEN V. BRADLEY
3143
Cite as 94 S.Ct. 3112 (1974)
creating a new city school district with-
The result reached by the Court cer-
in a larger district which was in the
tainly cannot be supported by the theory
process of dismantling a dual school sys-
that the configuration of local govern-
tem. The Court noted that if establish-
mental units is immune from alteration
ment of the new district were permitted,
when necessary to redress constitutional
the "traditional racial identities of the
violations. In addition to the well-estab-
schools in the area would be main-
lished principles already noted, the
tained," id., at 490, 92 S.Ct., at 2717.
Court has elsewhere required the public
bodies of a State to restructure the
Until today, the permissible contours
State's political subdivisions to remedy
of the equitable authority of the district
infringements of the constitutional
courts to remedy the unlawful establish-
rights of certain members of its popu-
ment of a dual school system have been
lace, notably in the reapportionment cas-
extensive, adaptable, and fully respon-
es. In Reynolds V. Sims, 377 U.S. 533,
sive to the ultimate goal of achieving
84 S.Ct. 1362, 12 L.Ed.2d 506 (1964),
"the greatest possible degree of actual
for example, which held that equal pro-
desegregation." There are indeed limi-
tection of the laws demands that the
tations on the equity powers of the fed-
seats in both houses of a bicameral state
eral judiciary, but until now the Court
legislature be apportioned on a popula-
had not accepted the proposition that ef-
tion basis, thus necessitating wholesale
fective enforcement of the Fourteenth
revision of Alabama's voting districts,
Amendment could be limited by political
the Court remarked:
or administrative boundary lines demar-
"Political subdivisions of States—
cated by the very State responsible for
counties, cities, or whatever-never
the constitutional violation and for the
were and never have been considered 1778
disestablishment of the dual system.
as sovereign entities. Rather, they
Until now the Court has instead looked
have been traditionally regarded as
to practical considerations in effectuat-
subordinate governmental instrumen-
1777 ing a desegregation decree, such as ex-
talities created by the State to assist
cessive distance, transportation time, and
in the carrying out of state govern-
hazards to the safety of the schoolchil-
mental functions." Id., at 575, 84 S.
dren involved in a proposed plan. That
these broad principles have developed in
Ct., at 1389.
the context of dual school systems com-
And even more pointedly, the Court de-
pelled or authorized by state statute at
clared in Gomillion V. Lightfoot, 364 U.
the time of Brown V. Board of Educa-
S. 339, 344-345, 81 S.Ct. 125, 129, 5 L.
tion, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.
Ed.2d 110 (1960), that '[I]egislative
873 (1954) (Brown I), does not lessen
control of municipalities, no less than
their current applicability to dual sys-
other state power, lies within the scope
tems found to exist in other contexts,
of relevant limitations imposed by the
like that in Detroit, where intentional
United States Constitution.
school segregation does not stem from
Nor does the Court's conclusion follow
the compulsion of state law, but from
from the talismanic invocation of the de-
deliberate individual actions of local and
sirability of local control over education.
state school authorities directed at a
Local autonomy over school affairs, in
particular school system. The majority
the sense of the community's participa-
properly does not suggest that the duty
tion in the decisions affecting the educa-
to eradicate completely the resulting
tion of its children, is, of course, an im-
dual system in the latter context is any
portant interest. But presently consti-
less than in the former. But its reason
tuted school district lines do not delimit
for incapacitating the remedial authori-
fixed and unchangeable areas of a local
ty of the federal judiciary in the pres-
educational community. If restructur-
ence of school district perimeters in the
ing is required to meet constitutional re-
latter context is not readily apparent.
quirements, local authority may simply
3144
94 SUPREME COURT REPORTER
418 U.S. 778
be redefined in terms of whatever con-
groes and whites would have been going
figuration is adopted, with the parents
to school together. There would have
of the children attending schools in the
been no, or at least not as many, recog-
newly demarcated district or attendance
nizable Negro schools and no, or at least
zone continuing their participation in
not as many, white schools, but "just
the policy management of the schools
schools," and neither Negroes nor whites
with which they are concerned most di-
would have suffered from the effects of
rectly. The majority's suggestion that
segregated education, with all its short-
judges should not attempt to grapple
comings. Surely the Court's remedy
with the administrative problems attend-
will not restore to the Negro community,
ant on a reorganization of school attend-
stigmatized as it was by the dual school
ance patterns is wholly without founda-
system, what it would have enjoyed over
tion. It is precisely this sort of task
all or most of this period if the remedy
which the district courts have been
is confined to present-day Detroit; for
properly exercising to vindicate the con-
the maximum remedy available within
stitutional rights of Negro students
that area will leave many of the schools
since Brown I and which the Court has
almost totally black, and the system it-
never suggested they lack the capacity
self will be predominantly black and will
to perform. Intradistrict revisions of
become increasingly so. Moreover, when
781
attendance zones, and pairing and
a State has engaged in acts of official
grouping of schools, are techniques
segregation over a lengthy period of
780
unanimously approved in Swann V. Char-
time, as in the case before us, it is un-
lotte-Mecklenburg Board of Education
realistic to suppose that the children
779 which entail the same sensitivity to the
who were victims of the State's uncon-
interest of parents in the education their
stitutional conduct could now be pro-
children receive as would an interdis-
vided the benefits of which they were
trict plan which is likely to employ the
wrongfully deprived. Nor can the bene-
very same methods. There is no reason
fits which accrue to school systems in
to suppose that the District Court,
which schoolchildren have not been of-
which has not yet adopted a final plan
ficially segregated, and to the communi-
of desegregation, would not be as capa-
ties supporting such school systems, be
ble of giving or as likely to give sufficient
fully and immediately restored after a
weight to the interest in community par-
substantial period of unlawful segrega-
ticipation in schools in an interdistrict
tion. The education of children of dif-
setting, consistent with the dictates of
ferent races in a desegregated environ-
the Fourteenth Amendment. The ma-
ment has unhappily been lost, along with
jority's assumption that the District
the social, economic, and political advan-
Court would act otherwise is a radical
tages which accompany a desegregated
departure from the practical flexibility
school system as compared with an un-
previously left to the equity powers of
constitutionally segregated system. It is
the federal judiciary.
for these reasons that the Court has con-
sistently followed the course of requir-
Finally, I remain wholly unpersuaded
ing the effects of past official segrega-
by the Court's assertion that "the reme-
tion to be eliminated "root and branch"
dy is necessarily designed, as all reme-
by imposing, in the present, the duty to
dies are, to restore the victims of dis-
provide a remedy which will achieve
criminatory conduct to the position they
"the greatest possible degree of actual
would have occupied in the absence of
such conduct." Ante, p. 3128. In the
desegregation, taking into account the
first place, under this premise the
practicalities of the situation." It is
Court's judgment is itself infirm; for
also for these reasons that once a consti-
had the Detroit school system not fol-
tutional violation has been found, the
lowed an official policy of segregation
district judge obligated to provide such
the
throughout the 1950's and 1960's, Ne-
a remedy "will thus necessarily be con-
418 U.S. 782
MILLIKEN V. BRADLEY
3145
Cite as 94 S.Ct. 3112 (1974)
cerned with the elimination of one-race
I am therefore constrained to record
schools." These concerns were properly
my disagreement and dissent.
taken into account by the District Judge
in this case. Confining the remedy to
Mr. Justice MARSHALL, with whom
the boundaries of the Detroit district is
Mr. Justice DOUGLAS, Mr. Justice
quite unrelated either to the goal of
BRENNAN, and Mr. Justice WHITE
achieving maximum desegregation or to
join, dissenting.
those intensely practical considerations,
In Brown V. Board of Education, 347
such as the extent and expense of trans-
U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
portation, that have imposed limits on
(1954), this Court held that segregation
remedies in cases such as this. The
of children in public schools on the basis
Court's remedy, in the end, is essentially
of race deprives minority group children
arbitrary and will leave serious viola-
of equal educational opportunities and
tions of the Constitution substantially
therefore denies them the equal protec-
unremedied.
tion of the laws under the Fourteenth 1782
Amendment. This Court recognized
I agree with my Brother DOUGLAS
then that remedying decades of segrega-
that the Court of Appeals has acted re-
tion in public education would not be an
1781 sponsibly in these cases. Regretably,
easy task. Subsequent events, unfortu-
the majority's arbitrary limitation on
nately, have seen that prediction bear
the equitable power of federal district
bitter fruit. But however imbedded old
courts, based on the invisible borders of
ways, however ingrained old prejudices,
local school districts, is unrelated to the
this Court has not been diverted from
State's responsibility for remedying the
its appointed task of making "a living
constitutional wrongs visited upon the
truth" of our constitutional ideal of
Negro schoolchildren of Detroit. It is
equal justice under law. Cooper V. Aar-
oblivious to the potential benefits of
on, 358 U.S. 1, 20, 78 S.Ct. 1401, 1410, 3
metropolitan relief, to the noneducation-
L.Ed.2d 5 (1958).
al communities of interest among neigh-
After 20 years of small, often diffi-
borhoods located in and sometimes
cult steps toward that great end, the
bridging different school districts, and
Court today takes a giant step back-
to the considerable interdistrict coopera-
wards. Notwithstanding a record show-
tion already existing in various educa-
ing widespread and pervasive racial seg-
tional areas. Ultimately, it is unrespon-
regation in the educational system pro-
sive to the goal of attaining the utmost
vided by the State of Michigan for chil-
actual desegregation consistent with re-
dren in Detroit, this Court holds that
straints of practicability and thus au-
the District Court was powerless to re-
gurs the frequent frustration of the re-
quire the State to remedy its constitu-
medial powers of the federal courts.
tional violation in any meaningful fash-
Here the District Court will be forced
ion. Ironically purporting to base its
to impose an intracity desegregation
result on the principle that the scope of
plan more expensive to the district, more
the remedy in a desegregation case
burdensome for many of Detroit's Ne-
should be determined by the nature and
gro students, and surely more conducive
the extent of the constitutional violation,
to white flight than a metropolitan plan
the Court's answer is to provide no rem-
would be-all of this merely to avoid
edy at all for the violation proved in this
what the Detroit School Board, the Dis-
case, thereby guaranteeing that Negro
trict Court, and the en banc Court of
children in Detroit will receive the same
Appeals considered to be the very man-
separate and inherently unequal educa-
ageable and quite surmountable difficul-
tion in the future as they have been un-
ties that would be involved in extending
constitutionally afforded in the past.
the desegregation remedy to the subur-
I cannot subscribe to this emascula-
ban school districts.
tion of our constitutional guarantee of
3146
94 SUPREME COURT REPORTER
418 U.S. 782
418g
equal protection of the laws and must
schools, a remedy which has been de-
the
respectfully dissent. Our precedents, in
layed since 1970." Ante, at 3131.
in
WIO
my view, firmly establish that where, as
The majority. however, seems to have
segre
here, state-imposed segregation has been
forgotten the District Court's explicit
trict
demonstrated, it becomes the duty of the
finding that a Detroit-only decree, the
785
is
State to eliminate root and branch all
only remedy permitted under today's de-
techn
vestiges of racial discrimination and to
cision, "would not accomplish desegrega-
of
achieve the greatest possible degree of
tion."
dent
actual desegregation. I agree with both
ry:dt
the District Court and the Court of Ap-
Nowhere in the Court's opinion does
784
See
peals that, under the facts of this case,
the majority confront, let alone respond
Den
this duty cannot be fulfilled unless the
to, the District Court's conclusion that a
2686
783 State[of Michigan involves outlying met-
remedy limited to the city of Detroit
batin
ropolitan area school districts in its de-
would not effectively desegregate the
tial
segregation remedy. Furthermore, I
Detroit city schools. I, for one, find the
whit
perceive no basis either in law or in the
District Court's conclusion well support-
atter
practicalities of the situation justifying
ed by the record and its analysis com-
mized
the State's interposition of school dis-
pelled by our prior cases. Before turn-
school
trict boundaries as absolute barriers to
ing to these questions, however, it is
zone,
the implementation of an effective de-
best to begin by laying to rest some mis-
dergo
segregation remedy. Under established
characterizations in the Court's opinion
whit
and frequently used Michigan proce-
with respect to the basis for the District
tion
dures, school district lines are both flex-
Court's decision to impose a metropoli-
crows
ible and permeable for a wide variety of
tan remedy.
awa
purposes, and there is no reason why
avail
The Court maintains that while the
they must now stand in the way of mean-
school
initial focus of this lawsuit was the con-
ingful desegregation relief.
school
dition of segregation within the Detroit
tained
The rights at issue in this case are
city schools, the District Court abruptly
seeat
too fundamental to be abridged on
shifted focus in mid-course and altered
gro
grounds as superficial as those relied on
its theory of the case. This new theory,
School
by the majority today. We deal here
in the majority's words, was "equating
tion
with the right of all of our children,
racial imbalance with a constitutional vi-
the
whatever their race, to an equal start in
olation calling for a remedy." Ante, at
one
life and to an equal opportunity to reach
3125, n. 19. As the following review of
iden
their full potential as citizens. Those
the District Court's handling of the case
child
children who have been denied that
demonstrates, however, the majority's
tora
right in the past deserve better than to
characterization is totally inaccurate.
gro
see fences thrown up to deny them that
Nowhere did the District Court indicate
reced
right in the future. Our Nation, I fear,
that racial imbalance between school dis-
will be ill served by the Court's refusal
tricts in the Detroit metropolitan area or
to remedy separate and unequal educa-
within the Detroit School District consti-
Cour
tion, for unless our children begin to
tuted constitutional violation calling for
a des
learn together, there is little hope that
interdistrict relief. The focus of this
not
our people will ever learn to live togeth-
case was from the beginning, and has re-
the
er.
mained, the segregated system of educa-
school
I
tion in the Detroit city schools and the
schoo
steps necessary to cure that condition
is
The great irony of the Court's opinion
which offends the Fourteenth Amend-
affective
and, in my view, its most serious analyt-
ment.
students
ical flaw may be gleaned from its con-
cluding sentence, in which the Court re-
The District Court's consideration of
ties
mands for "prompt formulation of a de-
this case began with its finding, which
S.C.,
cree directed to eliminating the segre-
the majority accepts, that the State of
lation
gation found to exist in Detroit city
Michigan, through its instrumentality,
418 U.S. 786
MILLIKEN V. BRADLEY
3147
Cite as 94 S.Ct. 3112 (1974)
the Detroit Board of Education, engaged
facto racial imbalance, but rather the
in widespread purposeful acts of racial
purposeful, intentional, massive, de jure
segregation in the Detroit School Dis-
segregation of the Detroit city schools,
trict. Without belaboring the details, it
which under our decision in Keyes, 786
is sufficient to note that the various
forms "a predicate for a finding of the
techniques used in Detroit were typical
existence of a dual school system," ibid.,
of methods employed to segregate stu-
93 S.Ct., at 2694, and justifies "all-out
dents by race in areas where no statuto-
desegregation." Id., at 214, 93 S.Ct.,
ry dual system of education has existed.
at 2700.
See, e. g., Keyes V. School District No. 1,
Having found a de jure segregated
Denver, Colorado, 413 U.S. 189, 93 S.Ct.
public school system in operation in the
2686, 37 L.Ed.2d 548 (1973). Exacer-
city of Detroit, the District Court
bating the effects of extensive residen-
turned next to consider which officials
tial segregation between Negroes and
and agencies should be assigned the af-
whites, the school board consciously drew
firmative obligation to cure the constitu-
attendance zones along lines which maxi-
tional violation. The court concluded
mized the segregation of the races in
that responsibility for the segregation in
schools as well. Optional attendance
the Detroit city schools rested not only
zones were created for neighborhoods un-
with the Detroit Board of Education,
dergoing racial transition so as to allow
but belonged to the State of Michigan
whites in these areas to escape integra-
itself and the state defendants in this
tion. Negro students in areas with over-
case that is, the Governor of Michigan,
crowded schools were transported past or
the Attorney General, the State Board
away from closer white schools with
of Education, and the State Superin-
available space to more distant Negro
tendent of Public Instruction. While
schools. Grade structures and feeder-
the validity of this conclusion will merit
school patterns were created and main-
more extensive analysis below, suffice it
tained in a manner which had the fore-
for now to say that it was based on
seeable and actual effect of keeping Ne-
three considerations. First, the evi-
gro and white pupils in separate schools.
dence at trial showed that the State it-
Schools were also constructed in loca-
self had taken actions contributing to
tions and in sizes which ensured that
the segregation within the Detroit
they would open with predominantly
schools. Second, since the Detroit Board
one-race student bodies. In sum, the ev-
of Education was an agency of the State
idence adduced below showed that Negro
of Michigan, its acts of racial discrimi-
children had been intentionally confined
nation were acts of the State for pur-
to an expanding core of virtually all-Ne-
poses of the Fourteenth Amendment.
gro schools immediately surrounded by a
Finally, the District Court found that
receding band of all-white schools.
under Michigan law and practice, the
Contrary to the suggestions in the
system of education was in fact a state
Court's opinion, the basis for affording
school system, characterized by relative-
a desegregation remedy in this case was
ly little local control and a large degree
not some perceived racial imbalance ei-
of centralized state regulation, with re-.
ther between schools within a single
spect to both educational policy and the
school district or between independent
structure and operation of school dis-
tricts.
school districts. What we confront here
is "a systematic program of segregation
Having concluded, then, that the
affecting a substantial portion of the
school system in the city of Detroit was
students, schools
and facili-
a de jure segregated system and that the
ties within the school system
State of Michigan had the affirmative
Id., 413 U.S., at 201, 93
duty to remedy that condition of segre-
S.Ct., at 2694. The constitutional vio-
gation, the District Court then turned to
lation found here was not some de
the difficult task of devising an effec-
3148
94 SUPREME COURT REPORTER
418 U.S. 786
tive remedy. It bears repeating that the
concluded that it "must look beyond the
District Court's focus at this stage of
limits of the Detroit school district for a
1787
the litigation remained what it had|been
solution to the problem of segregation in
at the beginning-the condition of seg-
the Detroit public schools
regation within the Detroit city schools.
In seeking to define the appropriate
As the District Court stated: "From
scope of that expanded desegregation
the initial ruling [on segregation] to
area, however, the District Court contin-
this day, the basis of the proceedings
ued to maintain as its sole focus the con-
has been and remains the violation: de
dition shown to violate the Constitution
jure school segregation.
The
in this case-the segregation of the De-
task before this court, therefore, is now,
troit school system. As it stated, the
and
has always been, how to de-
primary question "remains the determi- 1788
segregate the Detroit public schools."
nation of the area necessary and practic-
The District Court first considered
able effectively to eliminate 'root and
three desegregation plans limited to the
branch' the effects of state-imposed and
geographical boundaries of the city of
supported segregation and to desegre-
Detroit. All were rejected as ineffective
gate the Detroit public schools."
to desegregate the Detroit city schools.
There is simply no foundation in the
Specifically, the District Court deter-
record, then, for the majority's accusa-
mined that the racial composition of the
tion that the only basis for the District
Detroit student body is such that imple-
Court's order was some desire to achieve
mentation of any Detroit-only plan
a racial balance in the Detroit metropoli-
"would clearly make the entire Detroit
tan area.¹ In fact, just the contrary is
public school system racially identifiable
the case. In considering proposed de-
as Black" and would "leave many of its
segregation areas, the District Court
schools 75 to 90 per cent Black." The
had occasion to criticize one of the
District Court also found that a De-
State's proposals specifically because it
troit-only plan "would change a school
had no basis other than its "particular"
system which is now Black and White to
racial ratio" and did not focus on "rele-
one that would be perceived as Black,
vant factors, like eliminating racially
thereby increasing the flight of Whites
identifiable schools [and] accomplishing
from the city and the system, thereby in-
maximum actual desegregation of the
creasing the Black student population."
Detroit public schools." Similarly, in
Based on these findings, the District
rejecting the Detroit School Board's pro-
Court reasoned that "relief of segrega-
posed desegregation area, even though it
tion in the public schools of the City of
included more all-white districts and
Detroit cannot be accomplished within
therefore achieved a higher white-Negro
the corporate geographical limits of the
ratio, the District Court commented:
city" because a Detroit-only decree
"There is nothing in the record which
"would accentuate the racial identifiabil-
suggests that these districts need be
ity of the district as a Black school sys-
included in the desegregation area in
tem, and would not accomplish desegre-
order to disestablish the racial identi-
gation." The District Court therefore
fiability of the Detroit public schools.
I. Contrary to the Court's characterization,
deviate from a pure mathematical approach:
the use of racial ratios in this case in no
Indeed, the District Court's most recent or-
way differed from that in Swann V. Char-
der appointing a panel of experts to draft
lotte-Mecklenburg Board of Education, 402
an interdistrict plan requires only that the
U.S. 1. 91 S.Ct. 1267, 28 L.Ed.2d 554
plan be designed "to achieve the greatest de-
(1971). Here, as there, mathematical ratios
gree of actual desegregation
were used simply as "a starting point in the
[w]ithin the limitations of reasonable travel
process of shaping a remedy, rather than an
time and distance factors." 345 F.Supp. 914,
inflexible requirement." Id., at 25, 91
918 (ED Mich.1972). Cf. 402 U.S., at 23,
S.Ct., at 1280. It may be expected that a
91 S.Ct., at 1279.
final desegregation plan in this case would
418 U.S. 791
MILLIKEN V. BRADLEY
3149
Cite as 94 S.Ct. 3112 (1974)
From the evidence, the primary rea-
city of Detroit. The District Court de-
son for the Detroit School Board's in-
termined that interdistrict relief was
terest in the inclusion of these school
necessary and appropriate only because
districts is not racial desegregation
it found that the condition of segrega-
but to increase the average socio-eco-
tion within the Detroit school system
nomic balance of all the schools in the
could not be cured with a Detroit-only
abutting regions and clusters."
remedy. It is on this theory that the in-
terdistrict relief must stand or fall.
The Court also misstates the basis for
Unlike the Court, I perceive my task to
the District Court's order by suggesting
be to review the District Court's order
that since the only segregation proved at
for what it is, rather than to criticize it
trial was within the Detroit school sys-
for what it manifestly is not.
tem, any relief which extended beyond
the jurisdiction of the Detroit Board of
II
Education would be inappropriate be-
As the foregoing demonstrates, the
cause it would impose a remedy on
District Court's decision to expand its
outlying districts "not shown to have
desegregation decree beyond the geo-
committed any constitutional violation."
graphical limits of the city of Detroit
Ante, at 3127.2 The essential founda-
rested in large part on its conclusions
tion of interdistrict relief in this case
(A) that the State of Michigan was ulti-
was not to correct conditions within
mately responsible for curing the condi-
outlying districts which themselves en-
tion of segregation within the Detroit
gaged in purposeful segregation. In-
city schools, and (B) that a Detroit-only
stead, interdistrict relief was seen as
remedy would not accomplish this task.
a necessary part of any meaningful
In my view, both of these conclusions
effort by the State of Michigan to rem-
are well supported by the facts of this
edy the state-caused segregation within
case and by this Court's precedents.
the city of Detroit.
A
Rather than consider the propriety of
interdistrict relief on this basis, how-
To begin with, the record amply sup-
ever, the Court has conjured up a large-
ports the District Court's findings that
ly fictional account of what the District
the State of Michigan, through state of-
Court was attempting to accomplish.
ficers and state agencies, had engaged in
With all due respect, the Court, in my
purposeful acts which created or aggra-
view, does a great disservice to the Dis-
vated segregation in the Detroit schools.
trict Judge who labored long and hard
The State Board of Education, for ex-
with this complex litigation by accusing
ample, prior to 1962, exercised its au-
him of changing horses in midstream
thority to supervise local schoolsite se-
and shifting the focus of this case from
lection in a manner which contributed
the pursuit of a remedy for the condi-
to segregation. 484 F.2d 215, 238 (CA6
790
tion of segregation within the Detroit
1973). Furthermore, the State's con-
school system to some unprincipled at-
tinuing authority, after 1962, to approve
791
tempt to impose his own philosophy of
school building construction plans 3 had
racial balance on the entire Detroit met-
intertwined the State with site-selection
ropolitan area. See ante, at 3124. The
decisions of the Detroit Board of Educa-
focus of this case has always been the
tion which had the purpose and effect of
segregated system of education in the
maintaining segregation.
2. It does not appear that even the majority
see ante, at 3127, thus allowing interdistrict
places any real weight on this consideration
relief to touch districts which have not
since it recognizes that interdistrict relief
themselves violated the Constitution.
would be proper where a constitutional vio-
lation within one district produces a signifi-
3. See Mich.Comp.Laws § 388.851 (1970).
cant segregative effect in another district,
3150
94 SUPREME COURT REPORTER
418 U.S. 791
418 U.S. 7!
The State had also stood in the way of
sive statutory powers of the State Board
the State
past efforts to desegregate the Detroit
of Education over contractual arrange-
which the
city schools. In 1970, for example, the
ments between school districts in the en-
as are de
Detroit School Board had begun imple-
rollment of students on a nonresident tu-
district to
mentation of its own desegregation plan
ition basis, including certification of the
Detroit B
for its high schools, despite considerable
'number of pupils involved in the trans-
intendent
public and official resistance. The State
fer and the amount of tuition charged,
Mich. 43
Legislature intervened by enacting Act
over the review of transportation routes
(1947)
48 of the Public Acts of 1970, specifical-
and distances, and over the disburse-
school dis
ly prohibiting implementation of the de-
ment of transportation funds,⁵ the State
is therefo
segregation plan and thereby continuing
Board inevitably knew and understood
State itsel
the growing segregation of the Detroit
the significance of this discriminatory
Amendme
school system. Adequate desegregation
act.
Board of
of the Detroit system was also hampered
806, 1 L
Aside from the acts of purposeful seg-
by discriminatory restrictions placed by
regation committed by the State Legisla-
We TO
the State on the use of transportation
ture and the State Board of Education,
Keyes the
within Detroit. While state aid for
the District Court. also concluded that
was ultin
transportation was provided by statute
the State was responsible for the many
acts of &
for suburban districts, many of which
intentional acts of segregation commit-
school box
were highly urbanized, aid for intracity
ted by the Detroit Board of Education,
regation
transportation was excepted. One of the
an agency of the State. The majority is
amounted
effects of this restriction was to encour-
only willing to accept this finding ar-
tion.' $
age the construction of small walk-in
guendo. See ante, at 3129. I have no
2693. И
neighborhood schools in Detroit, thereby
doubt, however, as to its validity under
exists, to
lending aid to the intentional policy of
the Fourteenth Amendment.
ute or cr
creating a school system which reflected,
"The command of the Fourteenth
atic prog
to the greatest extent feasible, extensive
residential segregation. Indeed, that
Amendment," it should be recalled, "is
automati
that no 'State' shall deny to any person
duty 'to
one of the purposes of the transporta-
tion restriction was to impede desegre-
within its jurisdiction the equal protec-
cially no
tion of the laws." Cooper V. Aaron, 358
[and] 1
gation was evidenced when the Michigan
Legislature amended the State Trans-
U.S. 1, 16, 78 S.Ct. 1401, 1409, 3 L.Ed.2d
schools
portation Aid Act to cover intracity
5 (1958). While a State can act only
vestiges
transportation but expressly prohibited
through "the officers or agents by
Ibid. (
the allocation of funds for cross-busing
whom its powers are exerted," Ex parte
Vestin
of students within a school district to
Virginia, 100 U.S. 339, 347, 25 L.Ed. 676
of Mich
achieve racial balance.⁴ Cf. North Caro-
(1880), actions by an agent or officer of
schools
lina State Board of Education V. Swann,
the State are encompassed by the Four- 1793
teenth Amendment for, "as he acts in
1794
Michig
402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d
586 (1971).
the name and for the State, and is
erates e
cation r
1792 I Also significant was the State's in-
clothed with the State's power, his act is
volvement during the 1950's in the
that of the State." Ibid. See also Coop-
indepen
transportation of Negro high school stu-
er V. Aaron, supra; Virginia V. Rives,
majority
dents from the Carver School- District
100 U.S. 313, 318, 25 L.Ed. 667 (1880) ;
tal conti
Shelley v. Kraemer, 334 U.S. 1, 14, 68
district
past a closer white high school in the
Oak Park District to a more distant Ne-
S.Ct. 836, 842, 92 L.Ed. 1161 (1948).
prise to
that Sta
gro high school in the Detroit system.
Under Michigan law a "school district
district
Certainly the District Court's finding
is an agency of the City of State govern-
sovereis
that the State Board of Education had
ment." School District of Lansing v.
but ra
knowledge of this action and had given
State Board of Education, 367 Mich. 591,
State,
its tacit or express approval was not
600, 116 N.W.2d 866, 870 (1962). It is
Attorne
clearly erroneous. Given the comprehen-
"a legal division of territory, created by
Kies V.
4. See § 388.1179.
5. See §§ 388.629 and 340.600.
418 U.S. 795
MILLIKEN V. BRADLEY
3151
Cite as 94 S.Ct. 3112 (1974)
the State for educational purposes, to S.Ct. 27, 29, 50 L.Ed. 167 (1905). The
which the State has granted such powers
courts of the State have repeatedly em-
as are deemed necessary to permit the
phasized that education in Michigan is
district to function as a State agency."
not a local governmental concern, but a
Detroit Board of Education V. Super-
state function.
intendent of Public Instruction, 319
"Unlike the delegation of other pow-
Mich. 436, 450, 29 N.W.2d 902, 908
ers by the legislature to local govern-
(1947). Racial discrimination by the
ments, education is not inherently a
school district, an agency of the State,
part of the local self-government of a
is therefore racial discrimination by the
municipality
Control of
State itself, forbidden by the Fourteenth
our public school system is a State
Amendment. See, e. g., Pennsylvania V.
matter delegated and lodged in the
Board of Trusts, 353 U.S. 230, 77 S.Ct.
State legislature by the Constitution.
806, 1 L.Ed.2d 792 (1957).
The policy of the State has been to re-
We recognized only last Term in
tain control of its school system, to be
Keyes that it was the State itself which
administered throughout the State un-
was ultimately responsible for de jure
der State laws by local State agencies
acts of segregation committed by a local
organized with plenary powers to car-
school board. A deliberate policy of seg-
ry out the delegated functions given
regation by the local board, we held,
[them] by the legislature." School
amounted to "state-imposed segrega-
District of the City of Lansing V.
tion." 413 U.S., at 200, 93 S.Ct., at
State Board of Education, supra, at
2693. Wherever a dual school system
595, 116 N.W.2d, at 868.
exists, whether compelled by state stat-
The Supreme Court of Michigan has
ute or created by a local board's system-
noted the deep roots of this policy:
atic program of segregation, "the State
automatically assumes an affirmative
"It has been settled by the Ordi-
duty 'to effectuate a transition to a ra-
nance of 1787, the several Constitu-
cially nondiscriminatory school system'
tions adopted in this state, by its uni-
[and] to eliminate from the public
form course of legislation, and by the
schools within their school system 'all
decisions of this court, that education
vestiges of state-imposed segregation."
in Michigan is a matter of state con-
Ibid. (emphasis added).
cern, that it is no part of the local
self-government of a particular town-
Vesting responsibility with the State
ship or municipality
The
1795
of Michigan for Detroit's segregated
legislature has always dictated the ed-
schools is particularly appropriate as
ucational policy of the state." In re
1794 Michigan, unlike some other States, op-
School District No. 6, 284 Mich. 132,
erates a single statewide system of edu-
145-146, 278 N.W. 792, 797 (1938).
cation rather than several separate and
The State's control over education is
independent local school systems. The
reflected in the fact that, contrary to
majority's emphasis on local governmen-
the Court's implication, there is little or
tal control and local autonomy of school
no relationship between school districts
districts in Michigan will come as a sur-
and local political units. To take the 85
prise to those with any familiarity with
outlying local school districts in the De-
that State's system of education. School
troit metropolitan area as examples, 17
districts are not separate and distinct
districts lie in two counties, two in three
sovereign entities under Michigan law,
counties. One district serves five munic-
but rather are "auxiliaries of the
ipalities; other suburban municipalities
State," subject to its "absolute power."
are fragmented into as many as six
Attorney General of Michigan ex rel.
school districts. Nor is there any ap-
Kies v. Lowrey, 199 U.S. 233, 240, 26
parent state policy with regard to the
3152
94 SUPREME COURT REPORTER
418 U.S. 795
418
size of school districts, as they now
citizenry.¹ See, e. g., Attorney Gener-
1612
range from 2,000 to 285,000 students.
al ex rel. Kies, V. Lowrey, 131 Mich. 639,
Stur
Centralized state control manifests it-
92 N.W. 289 (1902), aff'd, 199 U.S. 233,
209,
self in practice as well as in theory.
26 S.Ct. 27, 50 L.Ed. 167 (1905). In-
Flee
The State controls the financing of edu-
deed, recent years have witnessed an ac-
N.W
cation in several ways. The legislature
celerated program of school district con-
Soci
contributes a substantial portion of most
solidations, mergers, and. annexations,
trict
school districts' operating budgets with
many of which were state imposed.
1004
funds appropriated from the State's
Whereas the State had 7,362 local dis-
for
General Fund revenues raised through
tricts in 1912, the number had been re-
Con
statewide taxation.⁶ The State's power
duced to 1,438 in 1964 and to 738 in
Con
over the purse can be and is in fact used
1968.17 By June 1972, only 608 school
resu
to enforce the State's powers over local
districts remained. Furthermore, the
syst
districts.⁷ In addition, although local
State has broad powers to transfer prop-
seri
districts obtain funds through local
erty from one district to another, again
Mic
property taxation, the State has assumed
without the consent of the local school
tuti
the responsibility to ensure equalized
districts affected by the transfer.¹ See,
In
property valuations throughout the
e. g., School District of the City of Lans- 1797
ales
1796 State.⁸ The State also establishesjstand-
ing v. State Board of Education, supra;
ruli
ards for teacher certification and teach-
Imlay Township District V. State Board
itsel
er tenure;* determines part of the re-
of Education, 359 Mich. 478, 102 N.W.2d
Edu
quired curriculum; 10 sets the minimum
720 (1960).
curi
school term; 11 approves bus routes,
with
equipment, and drivers; 12 approves
Whatever may be the history of public
tion
textbooks; 13 and establishes procedures
education in other parts of our Nation,
ute
for student discipline.¹ The State Su-
it simply flies in the face of reality to
the
perintendent of Public Instruction and
say, as does the majority, that in Michi-
ulti
the State Board of Education have the
gan, "[n]o single tradition in public
its
power to remove local school board mem-
education is more deeply rooted than
the
bers from office for neglect of their
local control over the operation of schools
syst
duties.¹⁵
Ante, as 3125. As the State's
1798 viev
Most significantly for present pur-
Supreme Court has said: "We have re-
and
poses, the State has wide-ranging pow-
peatedly held that education in this state
a si
ers to consolidate and merge school dis-
is not a matter of local concern, but be-
sub
tricts, even without the consent of the
be S
longs to the state at large." Collins v.
districts themselves or of the local
City of Detroit, 195 Mich. 330, 335-336,
6. See § 388.611. The State contributed
11. § 340.575.
V
an average of 34% of the operating bud-
Col
gets of the 54 school districts included in
12. § 388.1171.
to
the original proposed desegregation area.
13. § 340.887(1).
tio
In 11 of these districts, state contribu-
tions exceeded 50% of the operating builg-
wordbox
14. Op.Atty.Gen. No. 4705 (July 7, 1970),
ets.
1969-1970 Report of the Attorney General
cial
156 (Kelley).
ren
7. See, e. g., id., § 340.575. See also 1949-
No
1950 Report of the Attorney General 104
15. See Mich.Comp.Laws § 340.253.
(Roth) ; Vol. 1, 1955 Report of the Attorney
of )
General 561 (Kavanagh) ; 1961-1962 Report
16. See generally. §§ 340.401-340.415 (con-
sch
of the Attorney General 533 (Kelley).
solidations), 340.431-340.449 (annexations).
19.
8. See Mich.Comp.Laws §§ 211.34 and 340.681.
17. See 1 Michigan Senate Journal, 1968, P.
tl
423.
ri
9. § 340.569.
st
18. See generally Mich.Comp.Laws §§ 340.461-
al
10. §§ 257.811( 340.361, 340.781, 340.782,
340.468.
in
388.371.
31
418 U.S. 799
MILLIKEN V. BRADLEY
3153
Cite as 94 S.Ct. 3112 (1974)
161 N.W. 905, 907 (1917). See also
with the affirmative duty to take what-
Sturgis V. County of Allegan, 343 Mich.
ever steps might be necessary to convert
209, 215, 72 N.W.2d 56, 59 (1955) Van
to a unitary system in which racial dis-
Fleet V. Oltman, 244 Mich. 241, 244, 221
crimination would be eliminated root
N.W. 299, 300 (1928); Child Welfare
and branch." Green V. County School
Society of Flint V. Kennedy School Dis-
Board of New Kent County, 391 U.S.
trict, 220 Mich. 290, 296, 189 N.W. 1002,
430, 437-438, 88 S.Ct. 1689, 1694, 20
1004 (1922). Indeed, a study prepared
L.Ed.2d 716 (1968). See also Lee V.
for the 1961 Michigan Constitutional
Macon County Board of Education, 267
Convention noted that the Michigan
F.Supp. 458 (MD Ala.), aff'd sub nom.
Constitution's articles on education had
Wallace v. United States, 389 U.S. 215,
resulted in "the establishment of a state
88 S.Ct. 415, 19 L.Ed.2d 422 (1967). Ne-
system of education in contrast to a
gro students are not only entitled to
series of local school systems." Elemen-
neutral nondiscriminatory treatment in
Michigan Constitution, Michigan Consti-
the future. They must receive "what
tutional Convention Studies 1 (1961).
Brown II promised them: a school sys-
In sum, several factors in this case co-
tem in which all vestiges of enforced ra-
alesce to support the District Court's
cial segregation have been eliminated."
ruling that it was the State of Michigan
Wright V. Council of the City of Emporia,
itself, not simply the Detroit Board of
407 U.S. 451, 463, 92 S.Ct. 2196, 2203, 33
Education, which bore the obligation of
L.Ed.2d 51 (1972). See also Swann V.
curing the condition of segregation
Charlotte-Mecklenburg Board of Edu-
within the Detroit city schools. The ac-
cation, 402 U.S. 1, 15, 91 S.Ct. 1267,
tions of the State itself directly contrib-
1275, 28 L.Ed.2d 554 (1971). These re-
uted to Detroit's segregation. Under
medial standards are fully applicable not
the Fourteenth Amendment, the State is
only to school districts where a dual sys-
ultimately responsible for the actions of
tem was compelled by statute, but also
its local agencies. And, finally, given
where, as here, a dual system was the
the structure of Michigan's educational
product of purposeful and intentional
system, Detroit's segregation cannot be
state action. See Keyes, 413 U.S., at
1798 viewed as the problem of an independent
200-201, 93 S.Ct., at 2693-2694.
and separate entity. Michigan operates
After examining three plans limited
a single statewide system of education, a
to the city of Detroit, the District Court
substantial part of which was shown to
correctly concluded that none would
be segregated in this case.
eliminate root and branch the vestiges
B
of unconstitutional segregation. The 1799
plans' effectiveness, of course, had to be
What action, then, could the District
evaluated in the context of the District
Court require the State to take in order
Court's findings as to the extent of seg-
to cure Detroit's condition of segrega-
tion? Our prior cases have not minced
regation in the Detroit city schools. As
words as to what steps responsible offi-
indicated earlier, the most essential
cials and agencies must take in order to
finding was that Negro children in De-
remedy segregation in the public schools.
troit had been confined by intentional
Not only must distinctions on the basis
acts of segregation to a growing core of
of race be terminated for the future, but
Negro schools surrounded by a receding
school officials are also "clearly charged
ring of white schools. 19 Thus, in 1960,
19. Despite Mr. Justice STEWART's claim to
STEWART acknowledges that intentional
the contrary, ante, at 3133, n. 2, of his concur-
acts of segregation by the State have separated
ring opinion, the record fully supports my
white and Negro students within the city, and
statement that Negro students were intention-
that the resulting core of all-Negro schools
ally confined to a core of Negro schools with-
has grown to encompass most of the city. In
in the city of Detroit. See, e. g., supra, at
suggesting that my approval of an interdis-
3146-3147, 3149-3150. Indeed, Mr. Justice
trict remedy rests on a further conclusion
3154
94 SUPREME COURT REPORTER
418 U.S. 799
418 U.S
of Detroit's 251 regular attendance
levels and would leave elementary
short
1800 schools, 100 were 90% or more white
schools segregated. Plan B, the plain-
system
and 71 were 90% or more Negro. In
tiffs' plan, though requiring the trans-
tinuati
1970, of Detroit's 282 regular attendance
portation of 82,000 pupils and the acqui-
were t
schools, 69 were 90% or more white and
sition of 900 school buses, would make
dual 83
133 were 90% or more Negro. While in
little headway in rooting out the ves- 801
1960, 68% of all schools were 90% or
tiges of segregation. To begin with, be-
Und
more one race, by 1970, 71.6% of the
cause of practical limitations, the Dis-
proper
schools fell into that category. The
trict' Court found that the plan would
into as
growing core of all-Negro schools was
leave many of the Detroit city schools 75
from
further evidenced in total school district
to 90% Negro. More significantly,
forthe
population figures. In 1960 the Detroit
the District Court recognized that in
cree.
system had 46% Negro students and
the context of a community which his-
flight
54% white students, but by 1970, 64%
torically had a school system marked by
timony
of the students were Negro and only
rigid de jure segregation, the likely ef-
cities
36% were white. This increase in the
fect of a Detroit-only plan would be to
We o
proportion of Negro students was the
white
"change a school system which is now
highest of any major Northern city.
the ef!
Black and White to one that would be
in Wr
It was with these figures in the back-
perceived as Black
The re-
Distri
ground that the District Court evaluated
sult of this changed perception, the Dis-
of En
the adequacy of the three Detroit-only
trict Court found, would be to increase
from
plans submitted by the parties. Plan A,
the flight of whites from the city to the
tem VI
proposed by the Detroit Board of Educa-
outlying suburbs, compounding the ef-
groes,
tion, desegregated the high schools and
fects of the present rate of increase in
802 propol
about a fifth of the middle-level schools.
the proportion of Negro students in the
may: d
It was deemed inadequate, however, be-
cause it did not desegregate elementary
Detroit system. Thus, even if a plan
privat
were adopted which, at its outset, pro-
at 464
schools and left the middle-level schools
not included in the plan more segregated
vided in every school a 65% Negro-35%
nore t
white racial mix in keeping with the Ne-
legally
than ever. Plan C, also proposed by the
tablis!
Detroit Board, was deemed inadequate
gro-white proportions of the total stu-
sponsi
because it too covered only some grade
dent population, such a system would, in
dual s
also t
that the State or its political subdivisions
remedial stage must engage in à second in-
have been responsible for the increasing per-
quiry to determine whether additional state
perpet
centage of Negro students in Detroit, my
action exists to justify a particular remedy.
See S
Brother STEWART misconceives the thrust
Rather, once a constitutional violation has
1278,
of this dissent. In light of the high concen-
been shown, the District Court is duty-
n. 4, 1
tration of Negro students in Detroit, the
bound to formulate an effective remedy and,
of Go
District Judge's finding that a Detroit-only
in so doing, the court is entitled-indeed, it
remedy cannot effectively cure the constitu-
is required-to consider all the factual cir-
1700.
tional violation within the city should be
cumstances relevant to the framing of an ef-
enough to support the choice of an interdis-
fective decree. Thus, in Swann v. Charlotte-
We
trict remedy. Whether state action is re-
Mecklenburg Board of Education we held that
de ju
sponsible for the growth of the core of all-
the District Court must take into account
thorit
Negro schools in Detroit is, in my view,
the existence of extensive residential segre-
quite irrelevant.
gation in determining whether a racially neu-
achiev
The difficulty with Mr. Justice STEW-
tral "neighborhood school" attendance plan
actual
ART's position is that he, like the Court,
was an adequate desegregation remedy, re-
S.Ct.,
confuses the inquiry required to determine
gardless of whether this residential segrega-
dard
whether there has been a substantive consti-
tion was caused by state action. So here,
Comm
tutional violation with that necessary to for-
the District Court was required to consider
mulate an appropriate remedy once a consti-
the facts that the Detroit school system was
37,1 9
tutional violation has been shown. While a
already predominantly Negro and would like-
(1971
finding of state action is of course a prereq-
ly become all-Negro upon issuance of a De-
ing a
uisite to finding a violation, we have never
troit-only decree in framing an effective de-
ities
held that after unconstitutional state action
segregation remedy, regardless of state re-
has been shown, the District Court at the
sponsibility for this situation.
allips
418 U.S. 803
MILLIKEN V. BRADLEY
3155
Cite as 94 S.Ct. 3112 (1974)
short order, devolve into an all-Negro
gro and white children in fact go to
system. The net result would be a con-
school together. This is, in the final an-
tinuation of the all-Negro schools which
alysis, what desegregation of the public
were the hallmarks of Detroit's former
schools is all about.
dual system of one-race schools.
Because of the already high and rap-
idly increasing percentage of Negro stu-
Under our decisions, it was clearly
dents in the Detroit system, as well as
proper for the District Court to take
into account the so-called "white flight"
the prospect of white flight, a Detroit-
from the city schools which would be
only plan simply has no hope of achiev-
ing actual desegregation. Under such a
forthcoming from any Detroit-only de-
plan white and Negro students will not
cree. The court's prediction of white
go to school together. Instead, Negro
flight was well supported by expert tes-
children will continue to attend all-Ne-
timony based on past experience in other
cities undergoing desegregation relief.
gro schools. The very evil that Brown I
was aimed at will not be cured, but will
We ourselves took the possibility of
white flight into account in evaluating
be perpetuated for the future.
the effectiveness of a desegregation plan
Racially identifiable schools are one of
in Wright, supra, where we relied on the
the primary vestiges of state-imposed
District Court's finding that if the city
segregation which an effective desegre-
of Emporia were allowed to withdraw
gation decree must attempt to eliminate.
from the existing system, leaving a sys-
In Swann, supra, for example, we held
tem with a higher proportion of Ne-
that "[t]he district judge or school au-
groes, it " 'may be anticipated that the
thorities
will thus necessarily
1802 proportion of whites in county schools
be concerned with the elimination of one-
may drop as those who can register in
race schools." 402U.S., at 26, 91 S.Ct., 1803
private academies'
407 U.S.,
at 1281. There is "a presumption," we
at 464, 92 S.Ct., at 2204. One cannot ig-
stated, "against schools that are sub-
nore the white-flight problem, for where
stantially disproportionate in their ra-
legally imposed segregation has been es-
cial composition." Ibid. And in evalu-
tablished, the District Court has the re-
ating the effectiveness of desegregation
sponsibility to see to it not only that the
plans in prior cases, we ourselves have
dual system is terminated at once but
considered the extent to which they dis-
also that future events do not serve to
continued racially identifiable schools.
perpetuate or re-establish segregation.
See, e. g., Green v. County School Board
See Swann, 402 U.S. at 21, 91 S.Ct., at
of New Kent County, supra; Wright v.
1278. See also Green, 391 U.S., at 438
Council of the City of Emporia, supra.
n. 4, 88 S.Ct., at 1694; Monroe v. Board
For a principal end of any deseg-
of Comm'rs, 391 U.S. 450, 459, 88 S.Ct.
regation remedy is to ensure that
1700, 1705, 20 L.Ed.2d 733 (1968).
it is no longer "possible to identify
a 'white school' or a 'Negro school."
We held in Swann, supra, that where
Swann, supra, 402 U.S., at 18, 91 S.Ct.,
de jure segregation is shown, school au-
at 1277. The evil to be remedied in the
thorities must make "every effort to
dismantling of a dual system is the
achieve the greatest possible degree of
"[r]acial identification of the system's
actual desegregation." 402 U.S., at 26, 91
schools." Green, supra, 391 U.S., at 435,
S.Ct., at 1281. This is the operative stan-
88 S.Ct., at 1693. The goal is a system
GERALD
dard re-emphasized in Davis v. School
without white schools or Negro schools
Comm'rs of Mobile County, 402 U.S. 33,
-a system with "just schools." Id., at
37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577
442, 88 S.Ct., at 1696. A school authori-
(1971). If these words have any mean-
ty's remedial plan or a district court's
ing at all, surely it is that school author-
remedial decree is to be judged by its
ities must, to the extent possible, take
effectiveness in achieving this end. See
all practicable steps to ensure that Ne-
Swann, 402 U.S., at 25, 91 S.Ct., at 1280;
3156
94 SUPREME COURT REPORTER
418 U.S. 803
418
Davis, supra, 402 U.S., at 37, 91 S.Ct., at
The Federal Government has classified
1292; Green, supra, 391 U.S., at 439, 88
the tri-county area as a Standard Metro-
S.Ct., at 1694.
politan Statistical Area, indicating that
it is an area of "economic and social in-
We cautioned in Swann, of course,
tegration." United States V. Connecti-
that the dismantling of a segregated
cut National Bank, 418 U.S. 656, 670, 94
school system does not mandate any par-
S.Ct. 2788, 2797, 41 L.Ed.2d 1016 (1974).
ticular racial balance. 402 U.S., at 24,
91 S.Ct., at 1280. We also concluded
Under a Detroit-only decree, Detroit's
that a remedy under which there would
schools will clearly remain racially iden-
remain a small number of racially iden-
tifiable in comparison with neighboring
tifiable schools was only presumptively
schools in the metropolitan community.
inadequate and might be justified. Id.,
Schools with 65% and more Negro stu-
at 26, 91 S.Ct., at 1281. But this is a
dents will stand in sharp and obvious
totally different case. The flaw of a
of
contrast to schools in neighboring dis-
Detroit-only decree is not that it does
tricts with less than 2% Negro enroll-
not reach some ideal degree of racial
ment. Negro students will continue to
sto
bei
balance or mixing. It simply does not
perceive their schools as segregated edu-
me
promise to achieve actual desegregation
cational facilities and this perception
at all. It is one thing to have a system
will only be increased when whites react
where a small number of students re-
to a Detroit-only decree by fleeing to the
main in racially identifiable schools. It
suburbs to avoid integration. School
1805
is something else entirely to have a sys-
district lines, however innocently drawn,
die
em where all students continue to attend
will surely be perceived as fences to sep-
such schools.
arate the races when, under a Detroit-
20
only decree, white parents withdraw
The continued racial identifiability of
Sex:
their children from the Detroit city 1805
the Detroit schools under a Detroit-only
schools and move to the suburbs in order
at
remedy is not simply a reflection of
to continue them in all-white schools.
tial)
their high percentage of Negro students.
The message of this action will not es-
segn
1804 What is or is not a racially identifiable
at 11
cape the Negro children in the city of
vestige of de jure segregation must nec-
Detroit. See Wright, 407 U.S., at
exce
essarily depend on several factors. Cf.
466, 92 S.Ct., at 2205. It will be of
spre
Keyes, 413 U.S., at 196, 93 S.Ct.,
borb
scant significance to Negro children who
at 2691. Foremost among these should
See
have for years been confined by de jure
be the relationship between the schools
2695
acts of segregation to a growing core of
in question and the neighboring commu-
all-Negro schools surrounded by a ring
T
nity. For these purposes the city of De-
of all-white schools that the new divid-
blan
troit and its surrounding suburbs must
ing line between the races is the school
urby
be viewed as a single community. De-
district boundary.
Dels
troit is closely connected to its suburbs
such
in many ways, and the metropolitan area
Nor can it be said that the State is
ated
is viewed as a single cohesive unit by its
free from any responsibility for the dis-
wen
residents. About 40% of the residents
parity between the racial makeup of De-
they
of the two suburban counties included in
troit and its surrounding suburbs. The
lear
the desegregation plan work in Wayne
State's creation, through de jure acts of
ble
County; in which Detroit is situated.
segregation, of a growing core of all-Ne-
reat
Many residents of the city work in the
gro schools inevitably acted as a magnet
gate
suburbs. The three counties participate
to attract Negroes to the areas served
the
in a wide variety of cooperative govern-
by such schools and to deter them from
Dist
mental ventures on a metropolitan-wide
settling either in other areas of the city
and
basis, including a metropolitan transit
or in the suburbs. By the same token,
to 3
system, park authority, water and sewer
the growing core of all-Negro schools in-
State
system, and council of governments.
evitably helped drive whites to other
to s
418 U.S. 807
MILLIKEN V. BRADLEY
3157
Cite as 94 S.Ct. 3112 (1974)
areas of the city or to the suburbs. As aration of the races it achieved in the
we recognized in Swann:
past by purposeful state action.
"People gravitate toward school facili-
The majority asserts, however, that
ties, just as schools are located in re-
involvement of outlying districts would
sponse to the needs of people. The lo-
do violence to the accepted principle that
cation of schools may thus influence
"the nature of the violation determines
the patterns of residential develop-
the scope of the remedy." Swann, supra,
ment of a metropolitan area and have
402 U.S., at 16, 91 S.Ct., at 1276. See
important impact on composition of
ante, at 3127. Not only is the majority's
inner-city neighborhoods.
attempt to find in this single phrase the
[Action taken] to maintain the sepa-
answer to the complex and difficult ques-
ration of the races with a minimum
tions presented in this case hopelessly
departure from the formal principles
simplistic, but more important, the Court
of 'neighborhood zoning'
reads these words in a manner which
does more than simply influence the
perverts their obvious meaning. The
short-run composition of the student
nature of a violation determines the
body
It may well pro-
scope of the remedy simply because the
mote segregated residential patterns
function of any remedy is to cure the vi-
which, when combined with 'neighbor-
olation to which it is addressed. In
hood zoning,' further lock the school
school segregation[cases, as in other eq- 1807
system into the mold of separation of
uitable causes, a remedy which effective-
1805 the races. Upon a proper|showing a
ly cures the violation is what is re-
district court may consider this in
quired. See Green, 391 U.S., at 439, 88
fashioning a remedy." 402 U.S., at
S.Ct., at 1694; Davis, 402 U.S., at 37,
20-21, 91 S.Ct., at 1278.
91 S.Ct., at 1292. No more is necessary,
See also Keyes, 413 U.S., at 202, 93 S.Ct.,
but we can tolerate no less. To read
at 2694. The rippling effects on residen-
this principle as barring a district
tial patterns caused by purposeful acts of
court from imposing the only ef-
segregation do not automatically subside
fective remedy for past segregation and
at the school district border. With rare
remitting the court to a patently inef-
exceptions, these effects naturally
fective alternative is, in my view, to
spread through all the residential neigh-
turn a simple commonsense rule into a
borhoods within a metropolitan area.
cruel and meaningless paradox. Ironi-
See id., at 202-203, 93 S.Ct., at 2694-
cally, by ruling out an interdistrict
2695.
remedy, the only relief which promises
The State must also bear part of the
to cure segregation in the Detroit public
blame for the white flight to the sub-
schools, the majority flouts the very
urbs which would be forthcoming from a
principle on which it purports to rely.
Detroit-only decree and would render
Nor should it be of any significance
such a remedy ineffective. Having cre-
that the suburban school districts were
ated a system where whites and Negroes
not shown to have themselves taken any
were intentionally kept apart so that
direct action to promote segregation of
they could not become accustomed to
the races. Given the State's broad pow-
learning together, the State is responsi-
ers over local school districts, it was well
ble for the fact that many whites will
within the State's powers to require
react to the dismantling of that segre-
those districts surrounding the Detroit
gated system by attempting to flee to
school district to participate in a metro-
the suburbs. Indeed, by limiting the
politan remedy. The State's duty should
District Court to a Detroit-only remedy
be no different here than in cases where
and allowing that flight to the suburbs
it is shown that certain of a State's vot-
to succeed, the Court today allows the
ing districts are malapportioned in vio-
State to profit from its own wrong and
lation of the Fourteenth Amendment.
to perpetuate for years to come the sep-
See Reynolds V. Sims, 377 U.S. 533, 84
3158
94 SUPREME COURT REPORTER
418 U.S. 807
418 U.S
S.Ct. 1362, 12 L.Ed.2d 506 (1964). Ov-
educational facilities are inherently un-
Judge+i
errepresented electoral districts are re-
equal and of Swann's unequivocal man-
to these
quired to participate in reapportionment
date that. the answer to de jure segrega-
dication
although their only "participation" in
tion is the greatest possible degree of
to do so
the violation was to do nothing about it.
actual desegregation.
tion&th
Similarly, electoral districts which them-
submit
selves meet representation standards
III
The sta
must frequently be redrawn as part of a
to subn
remedy for other over- and under-inclu-
One final set of problems remains to
extendi
sive districts. No finding of fault on
be considered. We recognized in Brown
As the
the part of each electoral district and no
II, and have re-emphasized ever since,
defenda
finding of a discriminatory effect on
that in fashioning relief in desegrega-
burden
each district is a prerequisite to its in-
tion cases, "the courts will be guided by
posal th
volvement in the constitutionally re-
equitable principles. Traditionally, equi-
defenda
quired remedy. By the same logic, no
ty has been characterized by a practical
flexibility in shaping its remedies and
1810
howeve
finding of fault on the part of the sub-
plete pl
1808 urban school districts in this case |and
by a facility for adjusting and reconcil- 1809
submitt
no finding of a discriminatory effect on
ing public and private needs." Brown
was in
each district should be a prerequisite to
II, 349 U.S., at 300, 75 S.Ct., at 756. See
was onl
their involvement in the constitutionally
also Swann, supra.
trict. C
required remedy.
Though not resting its holding on this
op its i
point, the majority suggests that various
Court
It is the State, after all, which bears
the responsibility under Brown of af-
equitable considerations militate against
ticipati
fording a nondiscriminatory system of
interdistrict relief. The Court, for ex-
senting
education. The State, of course, is ordi-
ample, refers to financing and adminis-
to dev
narily free to choose any decentralized
trative problems, the logistical problems
Furthe
the sta
framework for education it wishes, so
attending large-scale transportation of
long as it fulfills that Fourteenth
students, and the prospect of the Dis-
bility
Amendment obligation. But the State
trict Court's becoming a "de facto 'legis-
final
should no more be allowed to hide be-
lative authority" and "'school super-
rangem
intendent' for the entire area." Ante,
relief
hind its delegation and compartmental-
ization, of school districts to avoid its
at 3127. The entangling web of problems
Appeal
constitutional obligations to its children
woven by the Court, however, appears
of loca
than it could hide behind its political
on further consideration to be construct-
that t
ed of the flimsiest of threads.
could
subdivisions to avoid its obligations to
its voters. Reynolds v. Sims, at 575,
ings t
I deal first with the last of the prob-
84 S.Ct., at 1388. See also Gomillion v.
lems posed by the Court-the specter of
Thes
Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5
the District Court qua "school superin-
to run
L.Ed.2d 110 (1960).
tendent" and "legislative authority"-
tion pl
It is a hollow remedy indeed where
for analysis of this problem helps put
of exp
"after supposed 'desegregation' the
the other issues in proper perspective.
Distric
schools remained segregated in fact."
Our cases, of course, make clear that the
detail
Hobson v. Hansen, 269 F.Supp. 401, 495
initial responsibility for devising an ad-
ported
(D.D.C. 1967). We must do better than
equate desegregation plan belongs with
and w
"substitute
one segregated
school authorities, not with the District
they W
school system for another segregated
Court. The court's primary role is to
20. In
school system." Wright, 407 U.S., at
review the adequacy of the school au-
this (
456, 92 S.Ct., at 2200. To suggest, as
thorities' efforts and to substitute its
rights
does the majority, that a Detroit-
own plan only if and to the extent they
court
only plan somehow remedies the ef-
default. See Swann, 402 U.S., at 16,
rights
trusio
fects of de jure segregation of the races
91 S.Ct., at 1276; Green, 391 U.S., at
ble.
is, in my view, to make a solemn mock-
439, 88 S.Ct., at 1294. Contrary to the
the n
ery of Brown I's holding that separate
majority's suggestions, the District
in wi
418 U.S. 811
MILLIKEN V. BRADLEY
3159
Cite as 94 S.Ct. 3112 (1974)
Judge in this case consistently adhered
dations have yet been submitted by the
to these procedures and there is every in-
state defendants on financial and admin-
dication that he would have continued
istrative arrangements. In sum, the
to do SO. After finding de jure segrega-
practicality of a final metropolitan plan
tion the court ordered the parties to
is simply not before us at the present
submit proposed Detroit-only plans.
time. Since the State and the panel of
The state defendants were also ordered
experts have not yet had an opportunity
to submit a proposed metropolitan plan
to come up with a workable remedy,
extending beyond Detroit's boundaries.
there is no foundation for the majority's
As the District Court stated, "the State
suggestion of the impracticality of in-
defendants
bear the initial
terdistrict relief. Furthermore, there
burden of coming forward with a pro-
is no basis whatever for assuming that
posal that promises to work." The state
the District Court will inevitably be
defendants defaulted in this obligation,
forced to assume the role of legislature
[810 however. Rather than submit a com-
or school superintendent. 20 Were we to 811
plete plan, the State Board of Education
hold that it was its constitutional duty
submitted six proposals, none of which
to do so, there is every indication that
was in fact a desegregation plan. It
the State of Michigan would fulfill its
was only upon this default that the Dis-
obligation and develop a plan which is
trict Court began to take steps to devel-
workable, administrable, financially
op its own plan. Even then the District
sound, and, most important, in the best
Court maximized school authority par-
interest of quality education for all of
ticipation by appointing a panel repre-
the children in the Detroit metropolitan
senting both plaintiffs and defendants
area.
to develop a plan. Pet. App. 99a-100a.
Furthermore, the District Court still left
Since the Court chooses, however, to
the state defendants the initial responsi-
speculate on the feasibility of a metro-
bility for developing both interim and
politan plan, I feel constrained to com-
final financial and administrative ar-
ment on the problem areas it has target-
rangements to implement interdistrict
ed. To begin with, the majority's ques-
relief. Id., at 104a-105a. The Court of
tions concerning the practicality of con-
solidation of school districts need not
Appeals further protected the interests
of local school authorities by ensuring
give us pause. The State clearly has the
that the outlying suburban districts
power, under existing law, to effect a
could fully participate in the proceed-
consolidation if it is ultimately deter-
ings to develop a metropolitan remedy.
mined that this offers the best prospect
for a workable and stable desegregation
These processes have not been allowed
plan. See supra, at 3152. And given the
to run their course. No final desegrega-
1,000 or so consolidations of school dis-
tion plan has been proposed by the panel
of experts, let alone approved by the
tricts which have taken place in the
District Court. We do not know in any
past, it is hard to believe that the State
detail how many students will be trans-
has not already devised means of solving
ported to effect a metropolitan remedy,
most, if not all, of the practical problems
and we do not know how long or how far
which the Court suggests consolidation
they will have to travel. No recommen-
would entail.
20. In fact, the District Court remarked "that
operate now and hereafter in a racially uni-
this court's task is to enforce constitutional
fied, non-discriminatory fashion. Within
rights not to act as a schoolmaster ; the
that framework the body politic, educators.
court's task is to protect the constitutional
parents, and most particularly the children
rights here found violated with as little in-
must be given the maximum opportunity to
trusion into the education process as possi-
experiment and secure a high quality, and
ble. The court's objective is to establish
equal, educational opportunity." Pet.App.
the minimum constitutional framework with-
82a.
in which the system of public schools may
3160
94 SUPREME COURT REPORTER
418 U.S. 811
418573
Furthermore, the majority ignores
statewide, 35%-40% of all students
required
long-established Michigan procedures
already arrive at school on a bus. In
feet
under which school districts may enter
those school districts in the tri-county
Th
into contractual agreements to educate
Detroit metropolitan area eligible for
hai
their pupils in other districts using state
state reimbursement of transportation
of
or local funds to finance nonresident
costs, 42%-52% of all students rode
ind
education.² Such agreements could
buses to school. In the tri-county areas
verif
[812 form anjeasily administrable framework
as a whole, approximately 300,000 pupils 1813
cre
for interdistrict relief short of outright
arrived at school on some type of bus,
int
consolidation of the school districts.
with about 60,000 of these apparently
fou
The District Court found that interdis-
using regular public transit. In compar-
1814
woul
trict procedures like these were fre-
ison, the desegregation plan, according
thir
quently used to provide special educa-
to its present rough outline, would in-
Oth
tional services for handicapped children,
volve the transportation of 310,000 stu-
dy
and extensive statutory provision is also
dents, about 40% of the population
pos
made for their use in vocational
within the desegregation area.
neal
education. Surely if school districts
whit
are willing to engage in interdistrict
With respect to distance and amount
pre
programs to help those unfortunate chil-
of time traveled, 17 of the outlying
dren crippled by physical or mental
school districts involved in the plan are
eviti
handicaps, school districts can be re-
contiguous to the Detroit district. The
decr
quired to participate in an inter-district
rest are all within 8 miles of the Detroit
distr
program to help those children in the
city limits. The trial court, in defining
we,
city of Detroit whose educations and
the desegregation area, placed a ceiling
very futures have been crippled by pur-
of 40 minutes one way on the amount of
poseful state segregation.
travel time, and many students will ob-
viously travel for far shorter periods.
Although the majority gives this last
As to distance, the average statewide
matter only fleeting reference, it is
bus trip is 8½ miles one way, and in
plain that one of the basic emotional and
some parts of the tri-county area, stu-
ml
legal issues underlying these cases con-
dents already travel for one and a quar-
cerns the propriety of transportation of
ter hours or more each way. In sum,
students to achieve desegregation.
with regard to both the number of stu-
While others may have retreated from
dents transported and the time and dis-
its standards, see, e. g., Keyes,
tances involved, the outlined desegrega-
413 U.S., at 217, 93 S.Ct., at 2701 (Pow-
tion plan "compares favorably with the
ell, J., concurring in part and dissenting
transportation plan previously operated
in part), I continue to adhere to the
Swann, 402 U.S., at 30, 91
guidelines set forth in Swann on this is-
S.Ct., at 1283.
sue. See 402 U.S., at 29-31, 91 S.Ct., at
1282-1283. And though no final deseg-
As far as economics are concerned, a
regation plan is presently before us, to
metropolitan remedy would actually be
the extent the outline of such a plan is
more sensible than a Detroit-only reme-
now visible, it is clear that the transpor-
dy. Because of prior transportation aid
tation it would entail will be fully con-
restrictions, see at 3150, Detroit largely
sistent with these guidelines.
relied on public transport, at stu-
First of all, the metropolitan plan
dent expense, for those students who
would not involve the busing of substan-
lived too far away to walk to school.
tially more students than already ride
Since no inventory of school buses exist-
buses. The District Court found that,
ed, a Detroit-only plan was estimated to
21. See, e. g., Mich.Comp.Laws §§ 340.69,
22. See id., §§ 340.330-340.330n.
340.121 (d), 340.359, 340.582, 340.582a, 340.-
590.
418 U.S. 815
MILLIKEN V. BRADLEY
3161
Cite as 94 S.Ct. 3112 (1974)
require the purchase of 900 buses to ef-
structed and maintained to enforce ra-
fectuate the necessary transportation.
cial segregation. The remedy for
The tri-county area, in contrast, already
such segregation may be administra-
has an inventory of 1,800 buses, many
tively awkward, inconvenient, and even
of which are now under-utilized. Since
bizarre in some situations and may
increased utilization of the existing in-
impose burdens on some; but all awk-
ventory can take up much of the in-
wardness and inconvenience cannot be
crease in transportation involved in the
avoided
"
402 U.S., at
interdistrict remedy, the District Court
28, 91 S.Ct., at 1282.
found that only 350 additional buses
would probably be needed, almost two-
Desegregation is not and was never
1814
thirds fewer than a Detroit-only remedy.
expected to be an easy task. Racial atti-
Other features of an interdistrict reme-
tudes ingrained in our Nation's child-
dy bespeak its practicality, such as the
hood and adolescence are not quickly
possibility of pairing up Negro schools
thrown aside in its middle years. But
near Detroit's boundary with nearby
just as the inconvenience of some cannot
white schools on the other side of the
be allowed to stand in the way of the
present school district line.
rights of others, SO public opposition, no
matter how strident, cannot be permit-
Some disruption, of course, is the in-
ted to divert this Court from the en-
evitable product of any desegregation
forcement of the constitutional princi-
decree, whether it operates within one
ples at issue in this case. Today's hold-
district or on an interdistrict basis. As
ing, I fear, is more a reflection of a per-
we said in Swann, however:
ceived public mood that we have gone
"Absent a constitutional violation
far enough in enforcing the Constitu-
there would be no basis for judicially
tion's guarantee of equal justice than it
ordering assignment of students on a
is the product of neutral principles of
racial basis. All things being equal,
law. In the short run, it may seem to 1815
with no history of discrimination, it
be the easier course to allow our great
might well be desirable to assign pu-
metropolitan areas to be divided up each
pils to schools nearest their homes.
into two cities-one white, the other
But all things are not equal in a sys-
black-but it is a course, I predict, our
tem that has been deliberately con-
people will ultimately regret. I dissent.
94 S.Ct.-33
June /
6 wonthy
FORD & LIBRARY
INFORMATION
THE WHITE HOUSE
WASHINGTON
June 12, 1976
MEMORANDUM FOR THE PRESIDENT
FROM:
JIM CANNON
SUBJECT:
U. S. Attitudes toward Desegregation and
Busing
The most recent data available indicating national
attitudes toward school busing is in a Harris poll
published last October 2 (attached).
In brief, this Harris Poll indicates that Americans
favor school desegregation by 56% to 35%; but they
oppose busing by 74% to 20%.
Attachment
FORD
The Harris Survey
For Release October 2, 1975
DESEGREGATION ? YES,
BUSING ? No.
By Louis Harris
Although the American people favor the desegregation of the public schools system by 56-35 per cent,
a lopsided 74-20 per cent majority opposes busing school children to achieve racial balance.
Better than two out of every three Americans also say they would be unwilling to see their own chil-
dren bused for racial purposes even if ordered by the court. These figures have scarcely changed since 1972.
When asked to cite their greatest concerns about busing school children to achieve racial balance,
the people did not give racial fears as their main reasons. Instead, a substantial 77 per cent of those who
objected offered the following explanations: "Children should attend schools in their own neighborhood"
(28 per cent); "Busing is expensive and a waste of money" (16 per cent); "Travel wastes too much time, makes
the day too long" (11 per cent) ; "Busing causes an inconvenience to children" (5 per cent); "Children should not
be separated from their friends" (3 per cent); "Busing uses gasoline unnecessarily" (-2 pér cent).
The 20 per cent of the public who did offer objections on racial grounds mentioned such factors as:
"Desegregation with blacks lowers the quality of educational standards" (10 per cent); "Oppose racial integration"
(4 per cent); "Will make race relations grow more tense" (4 per cent); "Psychologically degrading to children"
(2 per cent).
The Harris Survey asked a national cross section of 1,497 adults: "As a matter of principle, do you
favor or oppose desegregation of the public school system in the United States?"
DESEGREGATION OF PUBLIC SCHOOLS
Favor
Oppose
Not Sure
z
%
z
Nationwide
56
35
9
By Region
East
57
33
10
Midwest
48
41
11
South
58
32
10
West
64
32
4
By Politics
Conservative
53
39
8
Middle of the Road
55
36
9
Liberal
72
26
2
In every region of the country and among people of all political philosophies, a clear margin favors
desegregation of public education in principle.
The Harris Survey then asked: "Would you favor or oppose busing school children to achieve racial
balance?"
BUSING TO ACHIEVE RACIAL BALANCE
Favor
Oppose
Not Sure
%
%
%
1972
18
76
6
1975
20
74
6
By Region
East
20
70
10
Midwest
19
74
7
South
18
77
5
West
27
70
3
By Politics
LICENSE
Conservative
16
81
3
Middle of the Road
17
78
5
Liberal
31
63
6
Just as people of every region and position on the political spectrum favor desegregation of schools
in principle, they also oppose busing as a means of doing SO.
Although the American people may publicly say that inconvenience is the main reason for their dis-
approval of busing to desegregate schools, they would seem to have other, private reasons for their opposition.
-OVER-
-2-
The 47 per cent of the households in the survey that have children 18 years of age or younger
living at home were simply asked if the children were bused to school. A substantial 40 per cent said they
were. This group was then asked if they found the experience inconvenient. By 89-9 per cent, they did not.
They were then asked if they were satisfied or dissatisfied with busing their children to school. By 87-13
per cent, an overwhelming majority expressed satisfaction with busing.
By their own admission, parents find virtually no problems in having their children bused to school
for non-racial purposes. Thus, it may be concluded that it is the racial undertones of the current busing
question that have made it so rancorous. This is also the reason why the American people who say they are
in favor of school desegregation are so uptight about the issue. It may be clear that Americans do not view
busing as an acceptable means of desegregating the schools, but there is no guarantee that some other solution
leading to school integration would cause less pain and turmoil.
(c) Copyright 1975 by the Chicago Tribune.
600
H
n
THE WHITE HOUSE
WASHINGTON
April 9, 1976
MEMORANDUM FOR:
DICK CHELEY
FROM:
EDWARD SCHMULTS
SUBJECT:
Justice Department Involvement in
Private School Bias Litigation
You requested some background for the President on this morning's
news story concerning the position of the Justice Department in certain
litigation affecting the right of private schools to discriminate on the
basis of race. The material under "Background" and "Justice Depart-
ment Involvement" was furnished to Dick Parsons by the Solicitor
General.
BACKGROUND
The case in question was commenced by two private parties against
saveral private schools in Virginia which discriminated in their
administration policies on the basis of race. The contention of the
plaintiffs was that such discrimination violated Section 1981 of the
United States Code, which derives from the old Civil Rights Act of
1866. This law prohibits racial discrimination in the making of
private contracts. The defendants in this case argue that Section 1981
could not be applied to private schools and, in the alternative, that if
this section were applicable to private schools it was unconstitutional.
The lower court and the U. S. Court of Appeals (Fourth Circuit) held
for the plaintiffs. The case has been appealed to the Supreme Court
by the defendants.
JUSTICE DEPARTMENT INVOLVEMENT
When the constitutionality of a federal statute is challenged in litigation
before the Supreme Court, it is required that the Department of Justice
be notified of the litigation, the statute in question and the nature of the
constitutional challenge. As a general rule, the Department will defend,
amicus curiae, the constitutionality of the statute, unless a constitutional
prerogative of the President is being diminished.
FORD is LIBRARY GENALD
-2-
I have been advised by the Solicitor General that it is clear from
previous cases that Section 1981 is constitutional.
If the President is asked about this situation, I think he should respond
that:
(1) The Justice Department is participating in this case because of its
duty to defend the constitutionality of an act of Congress; the Department
believes its position is mandated by the statute and previous judicial
decisions;
(2) He has been advised that the Department's position is that the
statute applies only to most sweeping forms of segregation;
(3) According to the Department, the statute would not be applicable
to religious schools or those organized on some other right of
association; and
(4) We should bear in mind the case involves a statute which is within
the power of Congress to change.
FORD is LIBRARY 07V839