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The original documents are located in Box 4, folder "Busing Background Book (4)" of the
White House Special Files Unit Files at the Gerald R. Ford Presidential Library.
Copyright Notice
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450
OCTOBER TERM, 1967.
MONRO
Syllabus.
391 U.S.
450
MONROE ET AL. v. BOARD OF COMMISSIONERS
OF THE CITY OF JACKSON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT.
No. 740. Argued April 3, 1968.-Decided May 27, 1968.
About one-third of the City of Jackson's population of 40,000 are
Negroes, the great majority of whom live in the city's central
area. The city school system has eight elementary, three junior
high, and two senior high schools for the 7,650 students, of whom
about 40% are Negroes. Tennessee law in 1954 required racial
segregation in schools; five elementary and two junior high
schools and one senior high school were operated as "white"
schools, and the remainder as "Negro" schools. After Brown V.
Board of Education, 347 U. S. 483 (1954), declared such dual
systems unconstitutional, Tennessee enacted a pupil placement
law, which gave local school boards exclusive authority to approve
assignments. No white students enrolled in any "Negro" school
and only seven applications were granted in two years permitting
Negro pupils to enroll in "white" schools. In March 1962 the
Court of Appeals held that law inadequate "as a plan to convert
a biracial system into a nonracial one." This action was brought
in January 1963, seeking a declaratory judgment that respondents
were operating a racially segregated system, injunctive relief
against maintenance of that system, an order directing admission
to named "white" schools of Negro plaintiffs, and an order requir-
ing the School Board to formulate and file a desegregation plan.
The District Court ordered the students enrolled and the filing
of a plan. A plan was filed, and with court-directed modifications,
was approved in August 1963, to be effective at once in the ele-
mentary schools and to be extended over a four-year period to
junior and senior high schools. The modified plan provides for
automatic assignment of pupils within attendance zones drawn
along geographic or "natural" boundaries, and "according to the
capacity and facilities" of the schools. However, the plan also
has a "free-transfer" provision by which a student may freely
transfer to a school of his choice if space is available, zone residents
having priority in case of overcrowding. No bus service is pro-
vided. After one year the Negro elementary schools remained
for
MONROE v. BOARD OF COMMISSIONERS 451
450
Syllabus.
all Negro, and 118 Negro pupils were scattered among four
formerly all-white schools. Petitioners moved for further relief
and the District Court held the plan had been administered
discriminatorily. In the same proceeding the Board filed its
proposed zones for the three junior high schools, to which peti-
tioners objected on the grounds that the zones were racially
gerrymandered and that the plan was inadequate to reorganize
the system on a nonracial basis. Petitioners urged that the
Board be required to use a "feeder system," whereby each junior
high would draw its students from specific elementary schools.
The District Court held that petitioners had not sustained the
allegations that the zones were gerrymandered and concluded that
"there is no constitutional requirement" that the "feeder system"
be adopted. The Court of Appeals affirmed, except on the issue
of faculty segregation. Three years later the Negro junior high,
which had over 80% of the Negro junior high students, had no
white students, one "white" junior high had seven Negroes out
of 819 students, and the other had 349 white and 135 Negro
pupils. Held:
1. The "free-transfer" plan clearly does not meet respondent
Board's "affirmative duty to take whatever steps might be neces-
sary to convert to a unitary system in which racial discrimination
would be eliminated root and branch," Green V. County School
Board, ante, at 437-438, "[r]ather than further the dismantling of
the dual system, the ["free-transfer"] plan has operated simply to
burden children and their parents with a responsibility
placed
squarely on the School Board." Id., at 441-442. P. 458.
2. Since it has not been shown that the "free-transfer" plan
will further rather than delay conversion to a unitary, nonracial
system, it is unacceptable, and the Board must formulate a new
plan which promises realistically to convert promptly to a unitary,
nondiscriminatory school system. Pp. 459-460.
380 F. 2d 955, vacated in part and remanded.
James M. Nabrit III and Jack Greenberg argued the
cause for petitioners. With them on the brief were
Michael Meltsner, Avon N. Williams, Jr., and Z. Alex-
ander Looby.
Russell Rice, Sr., argued the cause and filed a brief
for respondents.
298-002 o 69 32
452
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
Louis F. Claiborne argued the cause for the United
States, as amicus curiae. With him on the brief were
Solicitor General Griswold, Assistant Attorney General
Pollak, Lawrence G. Wallace, and Brian K. Landsberg.
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
This case was argued with No. 695, Green V. County
School Board of New Kent County, ante, p. 430, and
No. 805, Raney V. Board of Education of the Gould
School District, ante, p. 443. The question for decision
is similar to the question decided in those cases. Here,
however, the principal feature of a desegregation plan-
which calls in question its adequacy to effectuate a
transition to a racially nondiscriminatory system in com-
pliance with Brown V. Board of Education, 349 U.S. 294
(Brown II)-is not "freedom of choice" but a variant
commonly referred to as "free transfer."
The respondent Board of Commissioners is the School
Board for the City of Jackson, located in midwestern
Tennessee. The school district coincides with the city
limits. Some one-third of the city's population of 40,000
are Negroes, the great majority of whom live in the city's
central area. The school system has eight elementary
schools, three junior high schools, and two senior high
schools. There are 7,650 children enrolled in the system's
schools, about 40% of whom, over 3,200, are Negroes.
In 1954 Tennessee by law required racial segrega-
tion in its public schools. Accordingly, five elementary
schools, two junior high schools, and one senior high
school were operated as "white" schools, and three ele-
mentary schools, one junior high school, and one senior
high school were operated as "Negro" schools. Racial
segregation extended to all aspects of school life including
faculties and staffs.
MONROE v. BOARD OF COMMISSIONERS. 453
450
Opinion of the Court.
After Brown V. Board of Education, 347 U. S. 483
(Brown I), declared such state-imposed dual systems
unconstitutional, Tennessee enacted a pupil placement
law, Tenn. Code § 49-1741 et seq. (1966). That law
continued previously enrolled pupils in their assigned
schools and vested local school boards with the exclusive
authority to approve assignment and transfer requests.
No white children enrolled in any "Negro" school under
the statute and the respondent Board granted only seven
applications of Negro children to enroll in "white"
schools, three in 1961 and four in 1962. In March 1962
the Court of Appeals for the Sixth Circuit held that the
pupil placement law was inadequate "as a plan to con-
vert a biracial system into a nonracial one." Northcross
V. Board of Education of City of Memphis, 302 F. 2d
818, 821.
In January 1963 petitioners brought this action in the
District Court for the Western District of Tennessee.
The complaint sought a declaratory judgment that re-
spondent was operating a compulsory racially segregated
school system, injunctive relief against the continued
maintenance of that system, an order directing the ad-
mission to named "white" schools of the plaintiff Negro
school children, and an order requiring respondent Board
to formulate a desegregation plan. The District Court
ordered the Board to enroll the children in the schools
in question and directed the Board to formulate and file
a desegregation plan. A plan was duly filed and, after
modifications directed by the court were incorporated,
the plan was approved in August 1963 to be effective
immediately in the elementary schools and to be grad-
ually extended over a four-year period to the junior high
schools and senior high schools. 221 F. Supp. 968.
The modified plan provides for the automatic assign-
ment of pupils living within attendance zones drawn by
the Board or school officials along geographic or "natural"
454
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
boundaries and "according to the capacity and facilities
of the [school] buildings
within the zones. Id.,
at 974. However, the plan also has the "free-transfer"
provision which was ultimately to bring this case to this
Court: Any child, after he has complied with the require-
ment that he register annually in his assigned school in
his attendance zone, may freely transfer to another school
of his choice if space is available, zone residents having
priority in cases of overcrowding. Students must pro-
vide their own transportation; the school system does not
operate school buses.
By its terms the "free-transfer" plan was first applied
in the elementary schools. After one year of operation
petitioners, joined by 27 other Negro school children,
moved in September 1964 for further relief in the District
Court, alleging respondent had administered the plan in
a racially discriminatory manner. At that time, the
three Negro elementary schools remained all Negro; and
118 Negro pupils were scattered among four of the five
formerly all-white elementary schools. After hearing
evidence, the District Court found that in two respects
the Board had indeed administered the plan in a dis-
criminatory fashion. First, it had systematically denied
Negro children-specifically the 27 intervenors-the right
to transfer from their all-Negro zone schools to schools
where white students were in the majority, although
white students seeking transfers from Negro schools to
white schools had been allowed to transfer. The court
held this to be a constitutional violation, see Goss V.
Board of Education, 373 U. S. 683, as well as a violation
of the terms of the plan itself. 244 F. Supp. 353, 359.
Second, the court found that the Board, in drawing the
lines of the geographic attendance zones, had gerry-
mandered three elementary school zones to exclude Negro
residential areas from white school zones and to include
MONROE v. BOARD OF COMMISSIONERS. 455
450
Opinion of the Court.
those areas in zones of Negro schools located farther
away. Id., at 361-362.
In the same 1964 proceeding the Board filed with the
court its proposed zones for the three junior high schools,
Jackson and Tigrett, the "white" junior high schools,
and Merry, the "Negro" junior high school. As of the
1964 school year the three schools retained their racial
identities, although Jackson did have one Negro child
among its otherwise all-white student body. The facul-
ties and staffs of the respective schools were also segre-
gated. Petitioners objected to the proposed zones on
two grounds, arguing first that they were racially gerry-
mandered because SO drawn as to assign Negro children
to the "Negro" Merry school and white children to the
"white" Jackson and Tigrett schools, and alternatively
that the plan was in any event inadequate to reorganize
the system on a nonracial basis. Petitioners, through
expert witnesses, urged that the Board be required to
adopt a "feeder system," a commonly used method of
assigning students whereby each junior high school would
draw its students from specified elementary schools.
The groupings could be made SO as to assure racially inte-
grated student bodies in all three junior high schools,
with due regard for educational and administrative con-
siderations such as building capacity and proximity of
students to the schools.
The District Court held that petitioners had not sus-
tained their allegations that the proposed junior high
school attendance zones were gerrymandered, saying
"Tigrett [white] is located in the western section,
Merry [Negro] is located in the central section and
Jackson [white] is located in the eastern section.
The zones proposed by the defendants would, gen-
erally, allocate the western section to Tigrett, the
central section to Merry, and the eastern section to
456
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
Jackson. The boundaries follow major streets or
highways and railroads. According to the school
population maps, there are a considerable number of
Negro pupils in the southern part of the Tigrett
zone, a considerable number of white pupils in the
middle and northern parts of the Merry zone, and
a considerable number of Negro pupils in the south-
ern part of the Jackson zone. The location of the
three schools in an approximate east-west line makes
it inevitable that the three zones divide the city in
three parts from north to south. While it appears
that proximity of pupils and natural boundaries are
not as important in zoning for junior highs as in
zoning for elementary schools, it does not appear
that Negro pupils will be discriminated against."
244 F. Supp., at 362.
As for the recommended "feeder system," the District
Court concluded simply that "there is no constitutional
requirement that this particular system be adopted."
Ibid. The Court of Appeals for the Sixth Circuit
affirmed except on an issue of faculty desegregation, as
to which the case was remanded for further proceedings.
380 F. 2d 955. We granted certiorari, 389 U. S. 1033,
and set the case for oral argument immediately following
Green V. County School Board, supra. Although the case
presented by the petition for certiorari concerns only the
junior high schools, the plan in its application to ele-
mentary and senior high schools is also necessarily im-
plicated since the right of "free transfer" extends to
pupils at all levels.
The principles governing determination of the ade-
quacy of the plan as compliance with the Board's re-
sponsibility to effectuate a transition to a racially non-
discriminatory system are those announced today in
Green V. County School Board, supra. Tested by those
MONROE v. BOARD OF COMMISSIONERS. 457
450
Opinion of the Court.
principles the plan is clearly inadequate. Three school
years have followed the District Court's approval of the
attendance zones for the junior high schools. Yet Merry
Junior High School was still completely a "Negro" school
in the 1967-1968 school year, enrolling some 640 Negro
pupils, or over 80% of the system's Negro junior high
school students. Not one of the "considerable number
of white pupils in the middle and northern parts of the
Merry zone" assigned there under the attendance zone
aspect of the plan chose to stay at Merry. Every one
exercised his option to transfer out of the "Negro" school.
The "white" Tigrett school seemingly had the same ex-
perience in reverse. Of the "considerable number of
Negro pupils in the southern part of the Tigrett zone"
mentioned by the District Court, only seven are enrolled
in the student body of 819; apparently all other Negro
children assigned to Tigrett chose to go elsewhere. Only
the "white" Jackson school presents a different picture;
there, 349 white children and 135 Negro children com-
pose the student body. How many of the Negro chil-
dren transferred in from the "white" Tigrett school does
not appear. The experience in the junior high schools
mirrors that of the elementary schools. Thus the three
elementary schools that were operated as Negro schools
in 1954 and continued as such until 1963 are still at-
tended only by Negroes. The five "white" schools all
have some Negro children enrolled, from as few as three
(in a student body of 781) to as many as 160 (in a stu-
dent body of 682).
This experience with "free transfer" was accurately
predicted by the District Court as early as 1963:
"In terms of numbers
the ratio of Negro to
white pupils is approximately 40-60. This figure
is, however, somewhat misleading as a measure of
the extent to which integration will actually occur
458
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
under the proposed plan. Because the homes of
Negro children are concentrated in certain areas of
the city, a plan of unitary zoning, even if prepared
without consideration of race, will result in a con-
centration of Negro children in the zones of here-
tofore 'Negro' schools and white children in the
zones of heretofore 'white' schools. Moreover, this
tendency of concentration in schools will be further
accentuated by the exercise of choice of schools
"
221 F. Supp., at 971. (Emphasis supplied.)
Plainly, the plan does not meet respondent's "affirma-
tive duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination
would be eliminated root and branch." Green V. County
School Board, supra, at 437-438. Only by dismantling the
state-imposed dual system can that end be achieved.
And manifestly, that end has not been achieved here
nor does the plan approved by the lower courts for the
junior high schools promise meaningful progress toward
doing so. "Rather than further the dismantling of the
dual system, the ["free transfer"] plan has operated
simply to burden children and their parents with a
responsibility which Brown II placed squarely on the
School Board." Green V. County School Board, supra, at
441-442. That the Board has chosen to adopt a method
achieving minimal disruption of the old pattern is evident
from its long delay in making any effort whatsoever to
desegregate, and the deliberately discriminatory manner
in which the Board administered the plan until checked
by the District Court.
The District Court approved the junior high school
attendance-zone lines in the view that as drawn they
assigned students to the three schools in a way that
was capable of producing meaningful desegregation of
all three schools. But the "free-transfer" option has
MONROE v. BOARD OF COMMISSIONERS. 459
450
Opinion of the Court.
permitted the "considerable number" of white or Negro
students in at least two of the zones to return, at the
implicit invitation of the Board, to the comfortable
security of the old, established discriminatory pattern.
Like the transfer provisions held invalid in Goss v. Board
of Education, 373 U.S. 683, 686, "[i]t is readily apparent
that the transfer [provision] lends itself to perpetuation
of segregation." While we there indicated that "free-
transfer" plans under some circumstances might be valid,
we explicitly stated that "no official transfer plan or pro-
vision of which racial segregation is the inevitable conse-
quence may stand under the Fourteenth Amendment."
Id., at 689. So it is here; no attempt has been made
to justify the transfer provision as a device designed
to meet "legitimate local problems," ibid.; rather it pat-
ently operates as a device to allow resegregation of the
races to the extent desegregation would be achieved by
geographically drawn zones. Respondent's argument in
this Court reveals its purpose. We are frankly told in
the Brief that without the transfer option it is appre-
hended that white students will flee the school system
altogether. "But it should go without saying that the
vitality of these constitutional principles cannot be al-
lowed to yield simply because of disagreement with
them." Brown II, at 300.
We do not hold that "free transfer" can have no place
in a desegregation plan. But like "freedom of choice,"
if it cannot be shown that such a plan will further rather
than delay conversion to a unitary, nonracial, nondis-
criminatory school system, it must be held unacceptable.
See Green V. County School Board, supra, at 439-441.
We conclude, therefore, that the Board "must be re-
quired to formulate a new plan and, in light of other
courses which appear open to the Board,
fashion
steps which promise realistically to convert promptly to a
460
OCTOBER TERM, 1967.
Opinion of the Court.
391 U.S.
system without a 'white' school and a 'Negro' school, but
just schools." Id., at 442.*
The judgment of the Court of Appeals is vacated inso-
far as it affirmed the District Court's approval of the
plan in its application to the junior high schools, and
the case is remanded for further proceedings consistent
with this opinion and with our opinion in Green V. County
School Board, supra.
It is so ordered.
*We imply no agreement with the District Court's conclusion
that under the proposed attendance zones for junior high schools
"it does not appear that Negro pupils will be discriminated against."
We note also that on the record as it now stands, it appears that
petitioners' recommended "feeder system," the feasibility of which
respondent did not challenge in the District Court, is an effective
alternative reasonably available to respondent to abolish the dual
system in the junior high schools.
ALEXANDER v. BOARD OF EDUCATION 19
Syllabus
ALEXANDER ET AL. v. HOLMES COUNTY BOARD
OF EDUCATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 632. Argued October 23, 1969-Decided October 29, 1969
Continued operation of racially segregated schools under the standard
of "all deliberate speed" is no longer constitutionally permissible.
School districts must immediately terminate dual school systems
based on race and operate only unitary school systems. The Court
of Appeals' order of August 28, 1969, delaying that court's earlier
mandate for desegregation in certain Mississippi school districts
is therefore vacated and that court is directed to enter an order,
effective immediately, that the schools in those districts be
operated on a unitary basis. While the schools are being thus
operated, the District Court may consider any amendments of the
order which may be proposed, but such amendments may become
effective only with the Court of Appeals' approval.
Vacated and remanded.
Jack Greenberg argued the cause for petitioners. With
him on the brief were James M. Nabrit III, Norman C.
Amaker, Melvyn Zarr, and Charles L. Black, Jr.
Assistant Attorney General Leonard argued the cause
for the United States. With him on the memorandum
was Solicitor General Griswold. A. F. Summer, Attorney
General of Mississippi, and John C. Satterfield argued
the cause and filed a brief for respondents other than
the United States.
Louis F. Oberdorfer argued the cause for the Lawyers'
Committee for Civil Rights Under Law as amicus curiae
urging reversal. With him on the brief were John W.
Douglas, Bethuel M. Webster, Cyrus R. Vance, Asa
Sokolow, John Schafer, John Doar, Richard C. Dinkel-
spiel, Arthur H. Dean, Lloyd N. Cutler, Bruce Bromley,
Berl I. Bernhard, Timothy B. Dyk, and Michael R.
Klein.
20
OCTOBER TERM, 1969
Per Curiam
396 U.S.
Richard B. Sobol and David Rubin filed a brief for the
National Education Association as amicus curiae urging
reversal. The Tennessee Federation for Constitutional
Government filed a brief as amicus curiae.
PER CURIAM.
This case comes to the Court on a petition for cer-
tiorari to the Court of Appeals for the Fifth Circuit.
The petition was granted on October 9, 1969, and the
case set down for early argument. The question pre-
sented is one of paramount importance, involving as it
does the denial of fundamental rights to many thousands
of school children, who are presently attending Missis-
sippi schools under segregated conditions contrary to
the applicable decisions of this Court. Against this back-
ground the Court of Appeals should have denied all mo-
tions for additional time because continued operation of
segregated schools under a standard of allowing "all
deliberate speed" for desegregation is no longer constitu-
tionally permissible. Under explicit holdings of this
Court the obligation of every school district is to ter-
minate dual school systems at once and to operate now
and hereafter only unitary schools. Griffin V. School
Board, 377 U.S. 218, 234 (1964) ; Green V. County School
Board of New Kent County, 391 U.S. 430, 438-439, 442
(1968). Accordingly,
It is hereby adjudged, ordered, and decreed:
1. The Court of Appeals' order of August 28, 1969, is
vacated, and the case is remanded to that court to
issue its decree and order, effective immediately, declaring
that each of the school districts here involved may no
longer operate a dual school system based on race or
color, and directing that they begin immediately to
operate as unitary school systems within which no person
is to be effectively excluded from any school because of
race or color.
ALEXANDER v. BOARD OF EDUCATION 21
19
Per Curiam
2. The Court of Appeals may in its discretion direct
the schools here involved to accept all or any part of
the August 11, 1969, recommendations of the Depart-
ment of Health, Education, and Welfare, with any modi-
fications which that court deems proper insofar as those
recommendations insure a totally unitary school system
for all eligible pupils without regard to race or color.
The Court of Appeals may make its determination and
enter its order without further arguments or submissions.
3. While each of these school systems is being operated
as a unitary system under the order of the Court of
Appeals, the District Court may hear and consider objec-
tions thereto or proposed amendments thereof, provided,
however, that the Court of Appeals' order shall be com-
plied with in all respects while the District Court con-
siders such objections or amendments, if any are made.
No amendment shall become effective before being passed
upon by the Court of Appeals.
4. The Court of Appeals shall retain jurisdiction to
insure prompt and faithful compliance with its order,
and may modify or amend the same as may be deemed
necessary or desirable for the operation of a unitary
school system.
5. The order of the Court of Appeals dated August 28,
1969, having been vacated and the case remanded for
proceedings in conformity with this order, the judgment
shall issue forthwith and the Court of Appeals is re-
quested to give priority to the execution of this judgment
as far as possible and necessary.
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1970
SWANN ET AL. v. CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 281. Argued October 12, 1970-Decided April 20, 1971*
The Charlotte-Mecklenburg school system, which includes the city of
Charlotte, North Carolina, had more than 84,000 students in 107
schools in the 1968-1969 school year. Approximately 29%
(24,000) of the pupils were Negro, about 14,000 of whom attended
21 schools that were at least 99% Negro. This resulted from
a desegregation plan approved by the District Court in 1965, at
the commencement of this litigation. In 1968 petitioner Swann
moved for further relief based on Green V. County School Board,
391 U.S. 430, which required school boards to "come forward with
a plan that promises realistically to work
now
until it
is clear that state-imposed segregation has been completely re-
moved." The District Court ordered the school board in April
1969 to provide a plan for faculty and student desegregation.
Finding the board's submission unsatisfactory, the District Court
appointed an expert to submit a desegregation plan. In February
1970, the expert and the board presented plans, and the court
adopted the board's plan, as modified, for the junior and senior
high schools, and the expert's proposed plan for the elementary
schools. The Court of Appeals affirmed the District Court's
order as to faculty desegregation and the secondary school plans,
*Together with No. 349, Charlotte-Mecklenburg Board of Educa-
tion et al. V. Swann et al., also on certiorari to the same court.
1
2
OCTOBER TERM, 1970
Syllabus
402 U.S.
but vacated the order respecting elementary schools, fearing that
the provisions for pairing and grouping of elementary schools
would unreasonably burden the pupils and the board. The case
(1)
was remanded to the District Court for reconsideration and sub-
gate
schools
mission of further plans. This Court granted certiorari and di-
must
rected reinstatement of the District Court's order pending further
whole
proceedings in that court. On remand the District Court received
two new plans, and ordered the board to adopt a plan, or the
in
expert's plan would remain in effect. After the board "acquiesced"
22-25
in the expert's plan, the District Court directed that it remain in
(2)
effect. Held:
Tof
1. Today's objective is to eliminate from the public schools all
vestiges of state-imposed segregation that was held violative of
equal protection guarantees by Brown V. Board of Education, 347
the
court
U.S. 483, in 1954. P. 15.
or
put
2. In default by the school authorities of their affirmative obli-
gation to proffer acceptable remedies, the district courts have
broad power to fashion remedies that will assure unitary school
be effective
systems. P. 16.
dent true
3. Title IV of the Civil Rights Act of 1964 does not restrict or
be
withdraw from the federal courts their historic equitable remedial
powers. The proviso in 42 U.S. C. § 2000c-6 was designed simply
to foreclose any interpretation of the Act as expanding the existing
powers of the federal courts to enforce the Equal Protection Clause.
Pp. 16-18.
4. Policy and practice with regard to faculty, staff, transporta-
tion, extracurricular activities, and facilities are among the most
important indicia of a segregated system, and the first remedial
responsibility of school authorities is to eliminate invidious racial
distinctions in those respects. Normal administrative practice
should then produce schools of like quality, facilities, and staffs.
Pp. 18-19.
5. The Constitution does not prohibit district courts from using
their equity power to order assignment of teachers to achieve a
particular degree of faculty desegregation. United States V. Mont-
gomery County Board of Education, 395 U. S. 225, was properly
followed by the lower courts in this case. Pp. 19-20.
6. In devising remedies to eliminate legally imposed segregation,
local authorities and district courts must see to it that future
of
ame
school construction and abandonment are not used and do not
serve to perpetuate or re-establish a dual system. Pp. 20-21.
FORD
-
SWANN v. BOARD OF EDUCATION
3
1
Syllabus
7. Four problem areas exist on the issue of student assignment:
(1) Racial quotas. The constitutional command to desegre-
gate schools does not mean that every school in the community
must always reflect the racial composition of the system as a
whole; here the District Court's very limited use of the racial
ratio-not as an inflexible requirement, but as a starting point
in shaping a remedy-was within its equitable discretion. Pp.
22-25.
(2) One-race schools. While the existence of a small number
of one-race, or virtually one-race, schools does not in itself denote
a system that still practices segregation by law, the court should
scrutinize such schools and require the school authorities to satisfy
the court that the racial composition does not result from present
or past discriminatory action on their part. Pp. 25-26.
An optional majority-to-minority transfer provision has long
been recognized as a useful part of a desegregation plan, and to
be effective such arrangement must provide the transferring stu-
dent free transportation and available space in the school to which
he desires to move. Pp. 26-27.
(3) Attendance zones. The remedial altering of attendance
zones is not, as an interim corrective measure, beyond the remedial
powers of a district court. A student assignment plan is not
acceptable merely because it appears to be neutral, for such a
plan may fail to counteract the continuing effects of past school
segregation. The pairing and grouping of noncontiguous zones is
a permissible tool; judicial steps going beyond contiguous zones
should be examined in light of the objectives to be sought. No
rigid rules can be laid down to govern conditions in different
localities. Pp. 27-29.
(4) Transportation. The District Court's conclusion that
assignment of children to the school nearest their home serving
their grade would not effectively dismantle the dual school system
is supported by the record, and the remedial technique of requiring
bus transportation as a tool of school desegregation was within
that court's power to provide equitable relief. An objection to
transportation of students may have validity when the time or
distance of travel is so great as to risk either the health of the
children or significantly impinge on the educational process: limits
on travel time will vary with many factors, but probably with
none more than the age of the students. Pp. 29-31.
4
OCTOBER TERM, 1970
SWANN V. I
Syllabus
402 U.S.
1
Opin
8. Neither school authorities nor district courts are constitu-
Jr., Charles R. Jonas,
tionally required to make year-by-year adjustments of the racial
Classroom Teachers
composition of student bodies once a unitary system has been
achieved. Pp. 31-32.
Mecklenburg School Sy
431 F. 2d 138, affirmed as to those parts in which it affirmed the
Jr., for Mrs. H. W. Cu
District Court's judgment. The District Court's order of Au-
of Education of the I
gust 7, 1970, is also affirmed.
trict; by Jack Petree
Memphis City Schools
BURGER, C. J., delivered the opinion for a unanimous Court.
Jackson Chamber of C
Julius LeVonne Chambers and James M. Nabrit III
J. Pollak, Benjamin W
argued the cause for petitioners in No. 281 and respond-
National Education As
ents in No. 349. With them on the briefs were Jack
Richard B. Sobol, and ,
Greenberg, Norman J. Chachkin, C. O. Pearson, and
Negro College Fund, I
Anthony G. Amsterdam.
Concerned Citizens A
Conley, Floyd B. Mch
William J. Wagonner and Benjamin S. Horack argued
the Congress of Racial
the cause and filed briefs for respondents in No. 281 and
eration for Constitution
petitioners in No. 349.
C. Cramer, pro se, and 4
Solicitor General Griswold argued the cause for the
W. Watson et al., for M
United States as amicus curiae in both cases. With him
Bennett, pro se, Jaman
on the brief was Assistant Attorney General Leonard.
Buckman for Charles E.
Briefs of amici curiae in No. 281 were filed by Earl
and M. T. Bohannon, J
Faircloth, Attorney General, Robert J. Kelly, Deputy
William B. Spong
Jr.,
Attorney General, Ronald W. Sabo, Assistant Attorney
MR. CHIEF Jearica
General, and Rivers Buford for the State of Florida; by
the Court.
Andrew P. Miller, Attorney General, William G. Broad-
dus and Theodore J. Markow, Assistant Attorneys Gen-
We granted certi
issues as to the dutine
eral, Lewis F. Powell, Jr., John W. Riely, and Guy K.
of powers of federal
Tower for the Commonwealth of Virginia; by Claude R.
to eliminate racially
Kirk, Jr., pro se, and Gerald Mager for Claude R. Kirk,
and maintained by
Jr., Governor of Florida; by W. F. Womble for the
Education, 347 L.
Winston-Salem/Forsyth County Board of Education; by
This case and Lime
Raymond B. Witt, Jr., and Eugene N. Collins for the
ing a long history of
Chattanooga Board of Education; by Kenneth W. Cleary
for the School Board of Manatee County, Florida; by
:
McDanici
-
W. Crosby Few and John M. Allison for the School
School
Board of Hillsborough County, Florida; by Sam J. Ervin,
Moore
r.
SWANN v. BOARD OF EDUCATION
5
1
Opinion of the Court
Jr., Charles R. Jonas, and Ernest F. Hollings for the
Classroom Teachers Association of the Charlotte-
Mecklenburg School System, Inc.; by Mark Wells White,
Jr., for Mrs. H. W. Cullen et al., members of the Board
of Education of the Houston Independent School Dis-
trict; by Jack Petree for the Board of Education of
Memphis City Schools; by Sherwood W. Wise for the
Jackson Chamber of Commerce, Inc., et al.; by Stephen
J. Pollak, Benjamin W. Boley, and David Rubin for the
National Education Association; by William L. Taylor,
Richard B. Sobol, and Joseph L. Rauh, Jr., for the United
Negro College Fund, Inc., et al.; by Owen H. Page for
Concerned Citizens Association, Inc.; by Charles S.
Conley, Floyd B. McKissick, and Charles S. Scott for
the Congress of Racial Equality; by the Tennessee Fed-
eration for Constitutional Government et al.; by William
C. Cramer, pro se, and Richard B. Peet, joined by Albert
W. Watson et al., for William C. Cramer; by Charles E.
Bennett, pro se, James C. Rinaman, Jr., and Yardley D.
Buckman for Charles E. Bennett; by Calvin H. Childress
and M. T. Bohannon, Jr., for David E. Allgood et al.; by
William B. Spong, Jr., and by Newton Collier Estes.
MR. CHIEF JUSTICE BURGER delivered the opinion of
the Court.
We granted certiorari in this case to review important
issues as to the duties of school authorities and the scope
of powers of federal courts under this Court's mandates
to eliminate racially separate public schools established
and maintained by state action. Brown V. Board of
Education, 347 U. S. 483 (1954) (Brown I).
This case and those argued with it 1 arose in States hav-
ing a long history of maintaining two sets of schools in a
1 McDaniel V. Barresi, No. 420, post, p. 39; Davis V. Board of
School Commissioners of Mobile County, No. 436, post, p. 33;
Moore V. Charlotte-Mecklenburg Board of Education, No. 444, post,
6
OCTOBER TERM, 1970
SWANN
Opinion of the Court
402 U.S.
1
single school system deliberately operated to carry out a
June 1969 there
governmental policy to separate pupils in schools solely
dents in the syste
on the basis of race. That was what Brown V. Board of
within the city
Education was all about. These cases present us with
21,000-approxima
the problem of defining in more precise terms than here-
21 schools which W
tofore the scope of the duty of school authorities and
99% Negro
district courts in implementing Brown I and the man-
This situation: ca
date: to eliminate dual systems and establish unitary
approved by the
systems at once. Meanwhile district courts and courts
of the present lit
of appeals have struggled in hundreds of cases with a
(WDNC), aff'd, 36
multitude and variety of problems under this Court's
geographic zoning
general directive. Understandably, in an area of evolv-
present proceeding
ing remedies, those courts had to improvise and experi-
petitioner Swann's
ment without detailed or specific guidelines. This Court,
Green V: County S
in Brown I, appropriately dealt with the large consti-
its companion case:
tutional principles; other federal courts had to grapple
the system fell sh
with the flinty, intractable realities of day-to-day imple-
system that those
mentation of those constitutional commands. Their
The District Co
efforts, of necessity, embraced a process of "trial and
ceived voluminous
error," and our effort to formulate guidelines must take
tain actions of th.
into account their experience.
the court also four
and county resulte
I
government
The Charlotte-Mecklenburg school system, the 43d
School board actior
largest in the Nation, encompasses the city of Charlotte
by locating schools
and surrounding Mecklenburg County, North Carolina.
the size of the schs
The area is large-550 square miles-spanning roughly
mediate neighborhs
22 miles east-west and 36 miles north-south. During the
These findingsower
1968-1969 school year the system served more than 84,000
of Appeals. of
pupils in 107 schools. Approximately 71% of the
In April:1969
pupils were found to be white and 29% Negro. As of
board to come for
student desegregat
p. 47; North Carolina State Board of Education V. Swann, No. 498,
by the court in Jun
post, p. 43. For purposes of this opinion the cross-petitions in
Nos. 281 and 349 are treated as a single case and will be referred
2 Raney V. Board
to as "this case."
Monroe V. Board of (
SWANN v. BOARD OF EDUCATION
7
1
Opinion of the Court
June 1969 there were approximately 24,000 Negro stu-
dents in the system, of whom 21,000 attended schools
within the city of Charlotte. Two-thirds of those
21,000-approximately 14,000 Negro students-attended
21 schools which were either totally Negro or more than
99% Negro.
This situation came about under a desegregation plan
approved by the District Court at the commencement
of the present litigation in 1965, 243 F. Supp. 667
(WDNC), aff'd, 369 F. 2d 29 (CA4 1966), based upon
geographic zoning with a free-transfer provision. The
present proceedings were initiated in September 1968 by
petitioner Swann's motion for further relief based on
Green V: County School Board, 391 U. S. 430 (1968), and
its companion cases.2 All parties now agree that in 1969
the system fell short of achieving the unitary school
system that those cases require.
The District Court held numerous hearings and re-
ceived voluminous evidence. In addition to finding cer-
tain actions of the school board to be discriminatory,
the court also found that residential patterns in the city
and county resulted in part from federal, state, and local
government action other than school board decisions.
School board action based on these patterns, for example,
by locating schools in Negro residential areas and fixing
the size of the schools to accommodate the needs of im-
mediate neighborhoods, resulted in segregated education.
These findings were subsequently accepted by the Court
of Appeals.
In April 1969 the District Court ordered the school
board to come forward with a plan for both faculty and
student desegregation. Proposed plans were accepted
by the court in June and August 1969 on an interim basis
2 Raney V. Board of Education, 391 U. S. 443 (1968), and
Monroe V. Board of Commissioners, 391 U. S. 450 (1968).
8
OCTOBER TERM, 1970
SWA
Opinion of the Court
402 U.S.
1
only, and the board was ordered to file a third plan by
The board pl
November 1969. In November the board moved for an
lied entirely up
extension of time until February 1970, but when that
More than half
was denied the board submitted a partially completed
in nine schools
plan. In December 1969 the District Court held that
mately half of
the board's submission was unacceptable and appointed
signed to schoo
an expert in education administration, Dr. John Finger,
The Finger 1
to prepare a desegregation plan. Thereafter in Feb-
appointed expe
ruary 1970, the District Court was presented with two
zoning plan for
alternative pupil assignment plans-the finalized "board
it required the
plan" and the "Finger plan."
transported from
The Board Plan. As finally submitted, the school
to the nearly al
board plan closed seven schools and reassigned their
The Finger P
pupils. It restructured school attendance zones to
much of the re
achieve greater racial balance but maintained existing
the creation of
grade structures and rejected techniques such as pairing
lite plan, inner-
and clustering as part of a desegregation effort. The
tendance some
plan created a single athletic league, eliminated the pre-
junior high sch
viously racial basis of the school bus system, provided
every junior M
racially mixed faculties and administrative staffs, and
The Finger
modified its free-transfer plan into an optional majority-
in its handling
to-minority transfer system.
Rather than rul
The board plan proposed substantial assignment of
Finger
Negroes to nine of the system's 10 high schools, produc-
technique
ing 17% to 36% Negro population in each. The pro-
out the
jected Negro attendance at the 10th school, Independence,
The
was 2%. The proposed attendance zones for the high
schools were typically shaped like wedges of a pie, extend-
by
ing outward from the center of the city to the suburban
and rural areas of the county in order to afford residents
main
of the center city area access to outlying schools.
In
its
As for junior high schools, the board plan rezoned the
in
the
21 school areas SO that in 20 the Negro attendance would
stated:
range from 0% to 38%. The other school, located in
"Frod
the heart of the Negro residential area, was left with an
If
the
as
de
d
enrollment of 90% Negro.
SWANN v. BOARD OF EDUCATION
9
1
Opinion of the Court
The board plan with respect to elementary schools re-
lied entirely upon gerrymandering of geographic zones.
More than half of the Negro elementary pupils were left
in nine schools that were 86% to 100% Negro; approxi-
mately half of the white elementary pupils were as-
signed to schools 86% to 100% white.
The Finger Plan. The plan submitted by the court-
appointed expert, Dr. Finger, adopted the school board
zoning plan for senior high schools with one modification:
it required that an additional 300 Negro students be
transported from the Negro residential area of the city
to the nearly all-white Independence High School.
The Finger plan for the junior high schools employed
much of the rezoning plan of the board, combined with
the creation of nine "satellite" zones.³ Under the satel-
lite plan, inner-city Negro students were assigned by at-
tendance zones to nine outlying predominately white
junior high schools, thereby substantially desegregating
every junior high school in the system.
The Finger plan departed from the board plan chiefly
in its handling of the system's 76 elementary schools.
Rather than relying solely upon geographic zoning, Dr.
Finger proposed use of zoning, pairing, and grouping
techniques, with the result that student bodies through-
out the system would range from 9% to 38% Negro.4
The District Court described the plan thus:
"Like the board plan, the Finger plan does as much
by rezoning school attendance lines as can reasonably
3 A "satellite zone" is an area which is not contiguous with the
main attendance zone surrounding the school.
4 In its opinion and order of December 1, 1969, later incorporated
in the order appointing Dr. Finger as consultant, the District Court
stated:
"Fixed ratios of pupils in particular schools will not be set.
If the board in one of its three tries had presented a plan for
desegregation, the court would have sought ways to approve varia-
10
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
be accomplished. However, unlike the board plan,
it does not stop there. It goes further and desegre-
gates all the rest of the elementary schools by the
technique of grouping two or three outlying schools
with one black inner city school; by transporting
black students from grades one through four to the
outlying white schools; and by transporting white
students from the fifth and sixth grades from the
outlying white schools to the inner city black school."
Under the Finger plan, nine inner-city Negro schools
were grouped in this manner with 24 suburban white
schools.
On February 5, 1970, the District Court adopted the
board plan, as modified by Dr. Finger, for the junior and
senior high schools. The court rejected the board ele-
mentary school plan and adopted the Finger plan as
presented. Implementation was partially stayed by the
Court of Appeals for the Fourth Circuit on March 5, and
this Court declined to disturb the Fourth Circuit's order,
397 U. S. 978 (1970).
On appeal the Court of Appeals affirmed the District
Court's order as to faculty desegregation and the second-
ary school plans, but vacated the order respecting ele-
mentary schools. While agreeing that the District Court
properly disapproved the board plan concerning these
schools, the Court of Appeals feared that the pairing and
grouping of elementary schools would place an unrea-
sonable burden on the board and the system's pupils.
The case was remanded to the District Court for recon-
sideration and submission of further plans. 431 F. 2d
tions in pupil ratios. In default of any such plan from the school
board, the court will start with the thought
that efforts should
be made to reach a 71-29 ratio in the various schools SO that there
will be no basis for contending that one school is racially different
from the others, but to understand that variations from that norm
may be unavoidable." 306 F. Supp. 1299, 1312.
SWANN v. BOARD OF EDUCATION
11
1
Opinion of the Court
138. This Court granted certiorari, 399 U. S. 926, and
directed reinstatement of the District Court's order pend-
ing further proceedings in that court.
On remand the District Court received two new plans
for the elementary schools: a plan prepared by the
United States Department of Health, Education, and
Welfare (the HEW plan) based on contiguous grouping
and zoning of schools, and a plan prepared by four mem-
bers of the nine-member school board (the minority plan)
achieving substantially the same results as the Finger
plan but apparently with slightly less transportation. A
majority of the school board declined to amend its pro-
posal. After a lengthy evidentiary hearing the District
Court concluded that its own plan (the Finger plan), the
minority plan, and an earlier draft of the Finger plan
were all reasonable and acceptable. It directed the board
to adopt one of the three or in the alternative to come
forward with a new, equally effective plan of its own;
the court ordered that the Finger plan would remain in
effect in the event the school board declined to adopt a
new plan. On August 7, the board indicated it would
"acquiesce" in the Finger plan, reiterating its view that
the plan was unreasonable. The District Court, by order
dated August 7, 1970, directed that the Finger plan re-
main in effect.
II
Nearly 17 years ago this Court held, in explicit terms,
that state-imposed segregation by race in public schools
denies equal protection of the laws. At no time has the
Court deviated in the slightest degree from that holding
or its constitutional underpinnings. None of the parties
before us challenges the Court's decision of May 17, 1954,
that
"in the field of public education the doctrine of
'separate but equal' has no place. Separate educa-
tional facilities are inherently unequal. Therefore,
419-882 72 6
12
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
we hold that the plaintiffs and others similarly situ-
ated
are, by reason of the segregation com-
plained of, deprived of the equal protection of the
laws guaranteed by the Fourteenth Amendment.
"Because these are class actions, because of the
wide applicability of this decision, and because of
the great variety of local conditions, the formulation
of decrees in these cases presents problems of con-
siderable complexity." Brown V. Board of Educa-
tion, supra, at 495.
None of the parties before us questions the Court's
1955 holding in Brown II, that
"School authorities have the primary responsibility
for elucidating, assessing, and solving these prob-
lems; courts will have to consider whether the action
of school authorities constitutes good faith imple-
mentation of the governing constitutional principles.
Because of their proximity to local conditions and
the possible need for further hearings, the courts
which originally heard these cases can best perform
this judicial appraisal. Accordingly, we believe it
appropriate to remand the cases to those courts.
"In fashioning and effectuating the decrees, the
courts will be guided by equitable principles. Tra-
ditionally, equity has been characterized by a prac-
tical flexibility in shaping its remedies and by a
facility for adjusting and reconciling public and
private needs. These cases call for the exercise of
these traditional attributes of equity power. At
stake is the personal interest of the plaintiffs in ad-
mission to public schools as soon as practicable on a
nondiscriminatory basis. To effectuate this inter-
est may call for elimination of a variety of obstacles
in making the transition to school systems operated
in accordance with the constitutional principles set
forth in our May 17, 1954, decision. Courts of
SWANN v. BOARD OF EDUCATION
13
1
Opinion of the Court
equity may properly take into account the public
interest in the elimination of such obstacles in a
systematic and effective manner. But it should go
without saying that the vitality of these constitu-
tional principles cannot be allowed to yield simply
because of disagreement with them." Brown V.
Board of Education, 349 U. S. 294, 299-300 (1955).
Over the 16 years since Brown II, many difficulties
were encountered in implementation of the basic con-
stitutional requirement that the State not discriminate
between public school children on the basis of their race.
Nothing in our national experience prior to 1955 prepared
anyone for dealing with changes and adjustments of the
magnitude and complexity encountered since then. De-
liberate resistance of some to the Court's mandates has
impeded the good-faith efforts of others to bring school
systems into compliance. The detail and nature of these
dilatory tactics have been noted frequently by this Court
and other courts.
By the time the Court considered Green V. County
School Board, 391 U. S. 430, in 1968, very little prog-
ress had been made in many areas where dual school
systems had historically been maintained by operation
of state laws. In Green, the Court was confronted
with a record of a freedom-of-choice program that the
District Court had found to operate in fact to pre-
serve a dual system more than a decade after Brown II.
While acknowledging that a freedom-of-choice concept
could be a valid remedial measure in some circumstances,
its failure to be effective in Green required that:
"The burden on a school board today is to come for-
ward with a plan that promises realistically to
work
now
until it is clear that state-imposed
segregation has been completely removed." Green,
supra, at 439.
14
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
This was plain language, yet the 1969 Term of Court
brought fresh evidence of the dilatory tactics of many
school authorities. Alexander V. Holmes County Board
of Education, 396 U. S. 19, restated the basic obligation
asserted in Griffin V. School Board, 377 U. S. 218, 234
(1964), and Green, supra, that the remedy must be im-
plemented forthwith.
The problems encountered by the district courts and
courts of appeals make plain that we should now try to
amplify guidelines, however incomplete and imperfect,
for the assistance of school authorities and courts.5 The
failure of local authorities to meet their constitutional
obligations aggravated the massive problem of convert-
ing from the state-enforced discrimination of racially
separate school systems. This process has been rendered
more difficult by changes since 1954 in the structure and
patterns of communities, the growth of student popula-
tion,⁶ movement of families, and other changes, some
of which had marked impact on school planning, some-
times neutralizing or negating remedial action before it
was fully implemented. Rural areas accustomed for
half a century to the consolidated school systems imple-
mented by bus transportation could make adjustments
more readily than metropolitan areas with dense and
shifting population, numerous schools, congested and
complex traffic patterns.
5 The necessity for this is suggested by the situation in the Fifth
Circuit where 166 appeals in school desegregation cases were heard
between December 2, 1969, and September 24, 1970.
6 Elementary public school population (grades 1-6) grew from
17,447,000 in 1954 to 23,103,000 in 1969; secondary school popula-
tion (beyond grade 6) grew from 11,183,000 in 1954 to 20,775,000 in
1969. Digest of Educational Statistics, Table 3, Office of Education
Pub. 10024-64; Digest of Educational Statistics, Table 28, Office of
Education Pub. 10024-70.
SWANN v. BOARD OF EDUCATION
15
1
Opinion of the Court
III
The objective today remains to eliminate from the
public schools all vestiges of state-imposed segregation.
Segregation was the evil struck down by Brown I as
contrary to the equal protection, guarantees of the Con-
stitution. That was the violation sought to be corrected
by the remedial measures of Brown II. That was the
basis for the holding in Green that school authorities
are "clearly charged with the affirmative duty to take
whatever steps might be necessary to convert to a unitary
system in which racial discrimination would be eliminated
root and branch." 391 U.S., at 437-438.
If school authorities fail in their affirmative obligations
under these holdings, judicial authority may be invoked.
Once a right and a violation have been shown, the scope
of a district court's equitable powers to remedy past
wrongs is broad, for breadth and flexibility are inherent
in equitable remedies.
"The essence of equity jurisdiction has been the
power of the Chancellor to do equity and to mould
each decree to the necessities of the particular case.
Flexibility rather than rigidity has distinguished it.
The qualities of mercy and practicality have made
equity the instrument for nice adjustment and recon-
ciliation between the public interest and private
needs as well as between competing private claims."
Hecht Co. V. Bowles, 321 U. S. 321, 329-330 (1944),
cited in Brown II, supra, at 300.
This allocation of responsibility once made, the Court
attempted from time to time to provide some guidelines
for the exercise of the district judge's discretion and
for the reviewing function of the courts of appeals. How-
ever, a school desegregation case does not differ funda-
mentally from other cases involving the framing of
16
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
1
equitable remedies to repair the denial of a constitutional
tutes
right. The task is to correct, by a balancing of the in-
efforts,
dividual and collective interests, the condition that of-
transition
fends the Constitution.
Attorney
In seeking to define even in broad and general terms
federal
how far this remedial power extends it is important to
"desegre
remember that judicial powers may be exercised only on
the basis of a constitutional violation. Remedial judi-
cial authority does not put judges automatically in the
shoes of school authorities whose powers are plenary.
but
Judicial authority enters only when local authority
defaults.
School authorities are traditionally charged with broad
Section
power to formulate and implement educational policy
stitute
and might well conclude, for example, that in order
to prepare students to live in a pluralistic society
each school should have a prescribed ratio of Negro to
white students reflecting the proportion for the district
as a whole. To do this as an educational policy is within
the broad discretionary powers of school authorities; ab-
sent a finding of a constitutional violation, however, that
would not be within the authority of a federal court.
As with any equity case, the nature of the violation de-
termines the scope of the remedy. In default by the
0
school authorities of their obligation to proffer acceptable
sur
remedies, a district court has broad power to fashion a
Actor
remedy that will assure a unitary school system.
The school authorities argue that the equity powers of
federal district courts have been limited by Title IV of
the Civil Rights Act of 1964, 42 U.S. C. § 2000c. The
language and the history of Title IV show that it was
enacted not to limit but to define the role of the Federal
Government in the implementation of the Brown I de-
cision. It authorizes the Commissioner of Education to
Four
provide technical assistance to local boards in the prepara-
tion of desegregation plans, to arrange "training insti-
FORD
SWANN v. BOARD OF EDUCATION
17
1
Opinion of the Court
tutes" for school personnel involved in desegregation
efforts, and to make grants directly to schools to ease the
transition to unitary systems. It also authorizes the
Attorney General, in specified circumstances, to initiate
federal desegregation suits. Section 2000c (b) defines
"desegregation" as it is used in Title IV:
"Desegregation" means the assignment of students
to public schools and within such schools without
regard to their race, color, religion, or national origin,
but 'desegregation' shall not mean the assignment of
students to public schools in order to overcome racial
imbalance."
Section 2000c-6, authorizing the Attorney General to in-
stitute federal suits, contains the following proviso:
"nothing herein shall empower any official or court
of the United States to issue any order seeking to
achieve a racial balance in any school by requiring
the transportation of pupils or students from one
school to another or one school district to another
in order to achieve such racial balance, or otherwise
enlarge the existing power of the court to insure
compliance with constitutional standards."
On their face, the sections quoted purport only to in-
sure that the provisions of Title IV of the Civil Rights
Act of 1964 will not be read as granting new powers. The
proviso in § 2000c-6 is in terms designed to foreclose any
interpretation of the Act as expanding the existing powers
of federal courts to enforce the Equal Protection Clause.
There is no suggestion of an intention to restrict those
powers or withdraw from courts their historic equitable
remedial powers. The legislative history of Title IV
indicates that Congress was concerned that the Act
might be read as creating a right of action under the
Fourteenth Amendment in the situation of so-called "de
facto segregation," where racial imbalance exists in the
18
OCTOBER TERM, 1970
SWANN
Opinion of the Court
402 U.S.
1 If COM
schools but with no showing that this was brought about
tive practice
by discriminatory action of state authorities. In short,
facilitie
and
there is nothing in the Act that provides us material
however
assistance in answering the question of remedy for state-
construct
imposed segregation in violation of Brown I. The basis
In the
of our decision must be the prohibition of the Fourteenth
school-board
that
Amendment that no State shall "deny to any person
teachers
within its jurisdiction the equal protection of the laws."
argues that
using their
IV
to
We
We turn now to the problem of defining with more
In Unite
particularity the responsibilities of school authorities in
Educatio
desegregating a state-enforced dual school system in light
as
a
of the Equal Protection Clause. Although the several
a
ratio
of
related cases before us are primarily. concerned with prob-
the
same
lems of student assignment, it may be helpful to begin
cated on
with a brief discussion of other aspects of the process.
In Green, we pointed out that existing policy and prac-
tive
tice with regard to faculty, staff, transportation, extra-
curricular activities, and facilities were among the most
important indicia of a segregated system. 391 U.S., at
435. Independent of student assignment, where it is
possible to identify a "white school" or a "Negro school"
simply by reference to the racial composition of teachers
and staff, the quality of school buildings and equipment,
or the organization of sports activities, a prima facie case
of violation of substantive constitutional rights under
the Equal Protection Clause is shown.
Court 0
When a system has been dual in these respects, the
it
first remedial responsibility of school authorities is to
sub
eliminate invidious racial distinctions. With respect to
such matters as transportation, supporting personnel, and
extracurricular activities, no more than this may be nec-
ratio
essary. Similar corrective action must be taken with
not
be
regard to the maintenance of buildings and the distribu-
portions. 14.
tion of equipment. In these areas, normal administra-
SWANN v. BOARD OF EDUCATION
19
1
Opinion of the Court
tive practice should produce schools of like quality,
facilities, and staffs. Something more must be said,
however, as to faculty assignment and new school
construction.
In the companion Davis case, post, p. 33, the Mobile
school board has argued that the Constitution requires
that teachers be assigned on a "color blind" basis. It also
argues that the Constitution prohibits district courts from
using their equity power to order assignment of teachers
to achieve a particular degree of faculty desegregation.
We reject that contention.
In United States V. Montgomery County Board of
Education, 395 U. S. 225 (1969), the District Court set
as a goal a plan of faculty assignment in each school with
a ratio of white to Negro faculty members substantially
the same throughout the system. This order was predi-
cated on the District Court finding that:
"The evidence does not reflect any real administra-
tive problems involved in immediately desegregating
the substitute teachers, the student teachers, the
night school faculties, and in the evolvement of a
really legally adequate program for the substantial
desegregation of the faculties of all schools in the
system commencing with the school year 1968-69."
Quoted at 395 U. S., at 232.
The District Court in Montgomery then proceeded to
set an initial ratio for the whole system of at least two
Negro teachers out of each 12 in any given school. The
Court of Appeals modified the order by eliminating what
it regarded as "fixed mathematical" ratios of faculty and
substituted an initial requirement of "substantially or
approximately" a five-to-one ratio. With respect to the
future, the Court of Appeals held that the numerical
ratio should be eliminated and that compliance should
not be tested solely by the achievement of specified pro-
portions. Id., at 234.
20
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
1
We reversed the Court of Appeals and restored the
the
District Court's order in its entirety, holding that the
are
order of the District Judge
city
"was adopted in the spirit of this Court's opinion in
Green
in that his plan 'promises realistically to
work, and promises realistically to work now.' The
modifications ordered by the panel of the Court
of Appeals, while of course not intended to do so,
would, we think, take from the order some of its
capacity to expedite, by means of specific commands,
the day when a completely unified, unitary, nondis-
criminatory school system becomes a reality instead
by
of a hope.
We also believe that under all the
circumstances of this case we follow the original plan
outlined in Brown II
by accepting the more
specific and expeditious order of [District] Judge
borl
Johnson
395 U. S., at 235-236 (emphasis
in original).
of
The principles of Montgomery have been properly fol-
dent
lowed by the District Court and the Court of Appeals
hoo
in this case.
The construction of new schools and the closing of old
ones are two of the most important functions of local
school authorities and also two of the most complex.
They must decide questions of location and capacity in
light of population growth, finances, land values, site
availability, through an almost endless list of factors to
be considered. The result of this will be a decision
which, when combined with one technique or another
of student assignment, will determine the racial composi-
do
tion of the student body in each school in the system.
Over the long run, the consequences of the choices will
be far reaching. People gravitate toward school facili-
ties, just as schools are located in response to the needs
of people. The location of schools may thus influence
SWANN v. BOARD OF EDUCATION
21
1
Opinion of the Court
the patterns of residential development of a metropolitan
area and have important impact on composition of inner-
city neighborhoods.
In the past, choices in this respect have been used as
a potent weapon for creating or maintaining a state-
segregated school system. In addition to the classic
pattern of building schools specifically intended for Negro
or white students, school authorities have sometimes,
since Brown, closed schools which appeared likely to
become racially mixed through changes in neighborhood
residential patterns. This was sometimes accompanied
by building new schools in the areas of white suburban
expansion farthest from Negro population centers in
order to maintain the separation of the races with a
minimum departure from the formal principles of "neigh-
borhood zoning." Such a policy does more than simply
influence the short-run composition of the student body
of a new school. It may well promote segregated resi-
dential patterns which, when combined with "neighbor-
hood zoning," further lock the school system into the
mold of separation of the races. Upon a proper showing
a district court may consider this in fashioning a remedy.
In ascertaining the existence of legally imposed school
segregation, the existence of a pattern of school construc-
tion and abandonment is thus a factor of great weight.
In devising remedies where legally imposed segregation
has been established, it is the responsibility of local
authorities and district courts to see to it that future
school construction and abandonment are not used and
do not serve to perpetuate or re-establish the dual sys-
tem. When necessary, district courts should retain
jurisdiction to assure that these responsibilities are
carried out. Cf. United States V. Board of Public In-
struction, 395 F. 2d 66 (CA5 1968); Brewer V. School
Board, 397 F. 2d 37 (CA4 1968).
22
OCTOBER TERM, 1970
SWANN
of
to
Opinion of the Court
402 U.S.
1
impact on other
V
reach in this case the
The central issue in this case is that of student assign-
school: segregation is
ment, and there are essentially four problem areas:
state action, without
(1) to what extent racial balance or racial quotas may
school authorities is
be used as an implement in a remedial order to correct
remedial action by
a previously segregated system;
case does not present
(2) whether every all-Negro and all-white school must
not decide it
be eliminated as an indispensable part of a remedial
Our objective in
process of desegregation;
these cases is to are
(3) what the limits are, if any, on the rearrangement
pupil of is racial
of school districts and attendance zones, as a remedial
indirectly, on
measure; and
embrace all the proble
(4) what the limits are, if any, on the use of transpor-
those problems contri
tation facilities to correct state-enforced racial school
centrations in some
segregation.
In this case it
(1) Racial Balances or Racial Quotas.
imposed a racial
The constant theme and thrust of every holding from
individual schools.
Brown I to date is that state-enforced separation of races
actually achieved
in public schools is discrimination that violates the Equal
tends to blunt that
Protection Clause. The remedy commanded was to dis-
of the District Cours of
mantle dual school systems.
court directing
We are concerned in these cases with the elimination
"that éfforts
of the discrimination inherent in the dual school systems,
in the varior
not with myriad factors of human existence which can
for contend
cause discrimination in a multitude of ways on racial,
from the
religious, or ethnic grounds. The target of the cases
operated
from Brown I to the present was the dual school system.
student
The elimination of racial discrimination in public schools
[should
be
is a large task and one that should not be retarded by
as practin
efforts to achieve broader purposes lying beyond the
levels have
jurisdiction of school authorities. One vehicle can carry
white
only a limited amount of baggage. It would not serve
The District
the important objective of Brown I to seek to use school
tion "from that
desegregation cases for purposes beyond their scope, al-
tains
intimations
though desegregation of schools ultimately will have
SWANN v. BOARD OF EDUCATION
23
1
Opinion of the Court
impact on other forms of discrimination. We do not
reach in this case the question whether a showing that
school segregation is a consequence of other types of
state action, without any discriminatory action by the
school authorities, is a constitutional violation requiring
remedial action by a school desegregation decree. This
case does not present that question and we therefore do
not decide it.
Our objective in dealing with the issues presented by
these cases is to see that school authorities exclude no
pupil of a racial minority from any school, directly or
indirectly, on account of race; it does not and cannot
embrace all the problems of racial prejudice, even when
those problems contribute to disproportionate racial con-
centrations in some schools.
In this case it is urged that the District Court has
imposed a racial balance requirement of 71%-29% on
individual schools. The fact that no such objective was
actually achieved-and would appear to be impossible-
tends to blunt that claim, yet in the opinion and order
of the District Court of December 1, 1969, we find that
court directing
"that éfforts should be made to reach a 71-29 ratio
in the various schools SO that there will be no basis
for contending that one school is racially different
from the others
,
[t]hat no school [should] be
operated with an all-black or predominantly black
student body, [and] [t]hat pupils of all grades
[should] be assigned in such a way that as nearly
as practicable the various schools at various grade
levels have about the same proportion of black and
white students."
The District Judge went on to acknowledge that varia-
tion "from that norm may be unavoidable." This con-
tains intimations that the "norm" is a fixed mathematical
24
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
racial balance reflecting the pupil constituency of the
system. If we were to read the holding of the District
Court to require, as a matter of substantive constitu-
tional right, any particular degree of racial balance or
mixing, that approach would be disapproved and we
would be obliged to reverse. The constitutional com-
mand to desegregate schools does not mean that every
school in every community must always reflect the racial
composition of the school system as a whole.
As the voluminous record in this case shows,' the
predicate for the District Court's use of the 71%-29%
ratio was twofold: first, its express finding, approved by
the Court of Appeals and not challenged here, that a
dual school system had been maintained by the school
authorities at least until 1969; second, its finding, also
approved by the Court of Appeals, that the school board
had totally defaulted in its acknowledged duty to come
forward with an acceptable plan of its own, notwith-
standing the patient efforts of the District Judge who, on
at least three occasions, urged the board to submit plans.8
As the statement of facts shows, these findings are abun-
7 It must be remembered that the District Court entered nearly
a score of orders and numerous sets of findings, and for the most part
each was accompanied by a memorandum opinion. Considering
the pressure under which the court was obliged to operate we
would not expect that all inconsistencies and apparent inconsistencies
could be avoided. Our review, of course, is on the orders of Febru-
ary 5, 1970, as amended, and August 7, 1970.
8 The final board plan left 10 schools 86% to 100% Negro and
yet categorically rejected the techniques of pairing and clustering
as part of the desegregation effort. As discussed below, the Char-
lotte board was under an obligation to exercise every reasonable
effort to remedy the violation, once it was identified, and the
suggested techniques are permissible remedial devices. Additionally,
as noted by the District Court and Court of Appeals, the board plan
did not assign white students to any school unless the student
population of that school was at least 60% white. This was an
arbitrary limitation negating reasonable remedial steps.
SWANN v. BOARD OF EDUCATION
25
1
Opinion of the Court
dantly supported by the record. It was because of this
total failure of the school board that the District Court
was obliged to turn to other qualified sources, and Dr.
Finger was designated to assist the District Court to do
what the board should have done.
We see therefore that the use made of mathematical
ratios was no more than a starting point in the process
of shaping a remedy, rather than an inflexible require-
ment. From that starting point the District Court pro-
ceeded to frame a decree that was within its discretionary
powers, as an equitable remedy for the particular circum-
stances.9 As we said in Green, a school authority's
remedial plan or a district court's remedial decree is to
be judged by its effectiveness. Awareness of the racial
composition of the whole school system is likely to be a
useful starting point in shaping a remedy to correct past
constitutional violations. In sum, the very limited use
made of mathematical ratios was within the equitable
remedial discretion of the District Court.
(2) One-race Schools.
The record in this case reveals the familiar phenome-
non that in metropolitan areas minority groups are often
found concentrated in one part of the city. In some
circumstances certain schools may remain all or largely
of one race until new schools can be provided or neigh-
borhood patterns change. Schools all or predominately
9 In its August 3, 1970, memorandum holding that the District
Court plan was "reasonable" under the standard laid down by the
Fourth Circuit on appeal, the District Court explained the approach
taken as follows:
"This court has not ruled, and does not rule that 'racial balance'
is required under the Constitution; nor that all black schools in all
cities are unlawful; nor that all school boards must bus children or
violate the Constitution; nor that the particular order entered in
this case would be correct in other circumstances not before this
court." (Emphasis in original.)
26
OCTOBER TERM, 1970
SWANN BOA
Opinion of the Court
402 U.S.
1
of one race in a district of mixed population will require
the transferring ship
close scrutiny to determine that school assignments are
must be made availab
not part of state-enforced segregation.
to move. Cf. Elli
In light of the above, it should be clear that the
F. 2d 203, 206 (CA)
existence of some small number of one-race, or virtually
and the companie
one-race, schools within a district is not in and of itself
option
the mark of a system that still practices segregation
(3) Remedic
by law. The district judge or school authorities should
The maps
make every effort to achieve the greatest possible degree
strate that
of actual desegregation and will thus necessarily be con-
planners and
cerned with the elimination of one-race schools. No
tem has b
per se rúle can adequately embrace all the difficulties
mandering
of reconciling the competing interests involved; but in
additional
a system with a history of segregation the need for re-
of school
medial criteria of sufficient specificity to assure a school
to accom
authority's compliance with its constitutional duty war-
formerh
rants a presumption against schools that are substan-
student
tially disproportionate in their racial composition. Where
the school authority's proposed plan for conversion from
not
indee
a dual to a unitary system contemplates the continued
existence of some schools that are all or predominately
an
be
of one race, they have the burden of showing that such
school assignments are genuinely nondiscriminatory.
The court should scrutinize such schools, and the burden
upon the school authorities will be to satisfy the court
that their racial composition is not the result of present
or past discriminatory action on their part.
An optional majority-to-minority transfer provision
has long been recognized as a useful part of every desegre-
gation plan. Provision for optional transfer of those in
the majority racial group of a particular school to other
schools where they will be in the minority is an indis-
pensable remedy for those students willing to transfer
to other schools in order to lessen the impact on them
of the state-imposed stigma of segregation. In order
to be effective, such a transfer arrangement must grant
SWANN v. BOARD OF EDUCATION
27
1
Opinion of the Court
the transferring student free transportation and space
must be made available in the school to which he desires
to move. Cf. Ellis V. Board of Public Instruction, 423
F. 2d 203, 206 (CA5 1970). The court orders in this
and the companion Davis case now provide such an
option.
(3) Remedial Altering of Attendance Zones.
The maps submitted in these cases graphically demon-
strate that one of the principal tools employed by school
planners and by courts to break up the dual school sys-
tem has been a frank-and sometimes drastic-gerry-
mandering of school districts and attendance zones. An
additional step was pairing, "clustering," or "grouping"
of schools with attendance assignments made deliberately
to accomplish the transfer of Negro students out of
formerly segregated Negro schools and transfer of white
students to formerly all-Negro schools. More often than
not, these zones are neither compact 10 nor contiguous;
indeed they may be on opposite ends of the city. As
an interim corrective measure, this cannot be said to be
beyond the broad remedial powers of a court.
10 The reliance of school authorities on the reference to the "revi-
sion of
attendance areas into compact units," Brown II, at 300
(emphasis supplied), is misplaced. The enumeration in that opin-
ion of considerations to be taken into account by district courts was
patently intended to be suggestive rather than exhaustive. The deci-
sion in Brown II to remand the cases decided in Brown I to local
courts for the framing of specific decrees was premised on a recogni-
tion that this Court could not at that time foresee the particular
means which would be required to implement the constitutional prin-
ciples announced. We said in Green, supra, at 439:
"The obligation of the district courts, as it always has been, is
to assess the effectiveness of a proposed plan in achieving desegrega-
tion. There is no universal answer to complex problems of desegre-
gation; there is obviously no one plan that will do the job in every
case. The matter must be assessed in light of the circumstances
present and the options available in each instance."
419-882 O 72 - 7
28
OCTOBER TERM, 1970
Opinion of the Court
402 U.S.
1
Absent a constitutional violation there would be no
dicial 5
basis for judicially ordering assignment of students on a
nations
racial basis. All things being equal, with no history of
of what
discrimination, it might well be desirable to assign pupils
opinion
to schools nearest their homes. But all things are not
do not
equal in a system that has been deliberately constructed
zones n
of the c
and maintained to enforce racial segregation. The rem-
edy for such segregation may be administratively awk-
good hi
ward, inconvenient, and even bizarre in some situations
gether.
and may impose burdens on some; but all awkwardness
widely
all situs
and inconvenience cannot be avoided in the interim
(4) 2
period when remedial adjustments are being made to
The #
eliminate the dual school systems.
an imple
No fixed or even substantially fixed guidelines can be
by this
established as to how far a court can go, but it must be
cannot I
recognized that there are limits. The objective is to
to stude
dismantle the dual school system. "Racially neutral"
the infi
assignment plans proposed by school authorities to a
of situa
district court may be inadequate; such plans may fail to
part of
counteract the continuing effects of past school segre-
perhaps
gation resulting from discriminatory location of school
tion from
sites or distortion of school size in order to achieve or
school.
maintain an artificial racial separation. When school
children
authorities present a district court with a "loaded game
schools :
board," affirmative action in the form of remedial alter-
The is
ing of attendance zones is proper to achieve truly non-
accepted
discriminatory assignments. In short, an assignment
in this
plan is not acceptable simply because it appears to be
neutral.
12 Duris
In this area, we must of necessity rely to a large extent,
buses to n
of 31 mile
as this Court has for more than 16 years, on the informed
area were
judgment of the district courts in the first instance and
1 whole,
on courts of appeals.
approxims
We hold that the pairing and grouping of noncontigu-
trip of 13
ous school zones is a permissible tool and such action is
children *
longest for
to be considered in light of the objectives sought. Ju-
SWANN v. BOARD OF EDUCATION
29
1
Opinion of the Court
dicial steps in shaping such zones going beyond combi-
nations of contiguous areas should be examined in light
of what is said in subdivisions (1), (2), and (3) of this
opinion concerning the objectives to be sought. Maps
do not tell the whole story since noncontiguous school
zones may be more accessible to each other in terms
of the critical travel time, because of traffic patterns and
good highways, than schools geographically closer to-
gether. Conditions in different localities will vary so
widely that no rigid rules can be laid down to govern
all situations.
(4) Transportation of Students.
The scope of permissible transportation of students as
an implement of a remedial decree has never been defined
by this Court and by the very nature of the problem it
cannot be defined with precision. No rigid guidelines as
to student transportation can be given for application to
the infinite variety of problems presented in thousands
of situations. Bus transportation has been an integral
part of the public education system for years, and was
perhaps the single most important factor in the transi-
tion from the one-room schoolhouse to the consolidated
school. Eighteen million of the Nation's public school
children, approximately 39%, were transported to their
schools by bus in 1969-1970 in all parts of the country.
The importance of bus transportation as a normal and
accepted tool of educational policy is readily discernible
in this and the companion case, Davis, supra.11 The
11 During 1967-1968, for example, the Mobile board used 207
buses to transport 22,094 students daily for an average round trip
of 31 miles. During 1966-1967, 7,116 students in the metropolitan
area were bused daily. In Charlotte-Mecklenburg, the system as
a whole, without regard to desegregation plans, planned to bus
approximately 23,000 students this year, for an average daily round
trip of 15 miles. More elementary school children than high school
children were to be bused, and four- and five-year-olds travel the
longest routes in the system.
30
OCTOBER TERM, 1970
SWANN w
Opinion of the Court
402 U.S.
1
o
Charlotte school authorities did not purport to assign
students on the basis of geographically drawn zones until
impinge on the edues
1965 and then they allowed almost unlimited transfer
weigh the soundness
privileges. The District Court's conclusion that assign-
of what is mid in -
ment of children to the school nearest their home serving
It hardly needs Mati
their grade would not produce an effective dismantling
will vary with mas
of the dual system is supported by the record.
more than the age of
Thus the remedial techniques used in the District
competing values in
difficult tank with to
Court's order were within that court's power to provide
tally no more 10 the
equitable relief; implementation of the decree is well
have traditionally e
within the capacity of the school authority.
The decree provided that the buses used to implement
the plan would operate on direct routes. Students would
be picked up at schools near their homes and transported
The Court of Apr
the equitable remain
to the schools they were to attend. The trips for ele-
the term "reasonable
mentary school pupils average about seven miles and
used the term "fraud
the District Court found that they would take "not over
"effective," and "yes
35 minutes at the most." 12 This system compares favor-
plan that promisms gu
ably with the transportation plan previously operated
now." On the facts
in Charlotte under which each day 23,600 students on all
clude that the order
grade levels were transported an average of 15 miles one
able, feasible and
way for an average trip requiring over an hour. In these
define the scope of
circumstances, we find no basis for holding that the local
remedial power of
school authorities may not be required to employ bus
deal with here,
transportation as one tool of school desegregation. De-
sense of basic fairs
segregation plans cannot be limited to the walk-in school.
not semanties,
An objection to transportation of students may have
suggest the INSURER 6
validity when the time or distance of travel is SO great
appropriate scope
of
as to either risk the health of the children or significantly
At some point,
them should have
12 The District Court found that the school system would have
Court's decision in
to employ 138 more buses than it had previously operated. But
"unitary" in the -
105 of those buses were already available and the others could
and Mezander,
easily be obtained. Additionally, it should be noted that North
Carolina requires provision of transportation for all students who
It does but fullo
are assigned to schools more than one and one-half miles from their
such systems will
homes. N. C. Gen. Stat. § 115-186 (b) (1966).
in a growing
SWANN v. BOARD OF EDUCATION
31
1
Opinion of the Court
impinge on the educational process. District courts must
weigh the soundness of any transportation plan in light
of what is said in subdivisions (1), (2), and (3) above.
It hardly needs stating that the limits on time of travel
will vary with many factors, but probably with none
more than the age of the students. The reconciliation of
competing values in a desegregation case is, of course, a
difficult task with many sensitive facets but fundamen-
tally no more SO than remedial measures courts of equity
have traditionally employed.
VI
The Court of Appeals, searching for a term to define
the equitable remedial power of the district courts, used
the term "reasonableness." In Green, supra, this Court
used the term "feasible" and by implication, "workable,"
"effective," and "realistic" in the mandate to develop "a
plan that promises realistically to work, and
to work
now." On the facts of this case, we are unable to con-
clude that the order of the District Court is not reason-
able, feasible and workable. However, in seeking to
define the scope of remedial power or the limits on
remedial power of courts in an area as sensitive as we
deal with here, words are poor instruments to convey the
sense of basic fairness inherent in equity. Substance,
not semantics, must govern, and we have sought to
suggest the nature of limitations without frustrating the
appropriate scope of equity.
At some point, these school authorities and others like
them should have achieved full compliance with this
Court's decision in Brown I. The systems would then be
"unitary" in the sense required by our decisions in Green
and Alexander.
It does not follow that the communities served by
such systems will remain demographically stable, for
in a growing, mobile society, few will do SO. Neither
32
OCTOBER TERM, 1970
DAVIS v. SCHOOL (
Opinion of the Court
402 U.S.
school authorities nor district courts are constitution-
ally required to make year-by-year adjustments of the
DAVIS ET AL D. Be
racial composition of student bodies once the affirmative
SIONERS OF
duty to desegregate has been accomplished and racial
CERTIORARI TO THE 1
discrimination through official action is eliminated from
FOR r
the system. This does not mean that federal courts
are without power to deal with future problems; but
No. 436. Argued Octab
in the absence of a showing that either the school au-
East of the major highes
thorities or some other agency of the State has delib-
Mobile, Ala., live 94% of
erately attempted to fix or alter demographic patterns
there are 65% Negro w
to affect the racial composition of the schools, further
schools are 12% Negre
approved 1 designegatis
intervention by a district court should not be necessary.
plan, insolar M the at
For the reasons herein set forth, the judgment of the
section as involved from $
Court of Appeals is affirmed as to those parts in which it
and providing to tranque
affirmed the judgment of the District Court. The order
poses. Though name you
WAS achieved for the BIR
of the District Court, dated August 7, 1970, is also
in the custern section (s
affirmed.
school pupils in the starts
It is so ordered.
over half of the Xegre you
to all-Negro or
I
faculty and staff notice
Court of Approle
board to
whole district.
1. The Court of
staff ratio is
of Education,
2. The Court
metropolitan Makile
and in not
techniques to
gation. P.
430 F. 2d SK3 and
in part.
BURGER. C.I. Internet
Jack Greenburg angth
him on the bride un
2686
93 SUPREME COURT REPORTER
413 U.S. 122
Mr. Justice DOUGLAS would vacate
in favor of defendants on all but ONE
and remand for dismissal of the criminal
count of second claim, and at 313 F.
complaint under which petitioner was
Supp. 90, issued opinion on the remedy.
found guilty because "obscenity" as de-
and defendants appealed, and plaintiffs
fined by the California courts and by
cross-appealed. The Court of Appeals.
this Court is too vague to satisfy the re-
445 F.2d 990, affirmed in part, reversed
quirements of due process. See Miller
in part, and remanded, and certiorari
V. California, 413 U.S. 15, at 37, 93 S.Ct.
was granted. The Supreme Court, Mr.
2607, at 2622, 37 L.Ed.2d 419 (Douglas,
Justice Brennan, held that finding of in-
J., dissenting).
tentionally segregative school board ac-
tions in meaningful portion of school
Mr. Justice BRENNAN, with whom
system created prima facie case of un-
Mr. Justice STEWART and Mr. Justice
lawful segregated design on part of
MARSHALL join, dissenting.
school authorities, and shifted to those
I would reverse the judgment of the
authorities the burden of proving that
Appellate Department of the Superior
other segregated schools within system
Court of California and remand the case
were not the result of intentionally seg-
for further proceedings not inconsistent
regative actions even if it was deter-
with my dissenting opinion in Paris
mined that different areas of school dis-
Adult Theatre I V. Slaton, 413 U.S. 49, at
tricts should be viewed independently of
73, 93 S.Ct. 2628, at 2642, 37 L.Ed.2d
each other.
446. See my dissent in Miller V. Cali-
Modified and remanded to the Dis-
fornia, 413 U.S. 15, at 47, 93 S.Ct. 2607,
trict Court.
at 2627, 37 L.Ed.2d 419.
Mr. Justice Douglas filed separate
opinion.
KEY NUMBER SYSTEM
Mr. Chief Justice Burger concurred
in the result.
413 U.S. 189, 37 L.Ed.2d 548
Mr. Justice Powell filed opinion
Wilfred KEYES et al., Petitioners,
concurring in part and dissenting in
V.
part.
SCHOOL DISTRICT NO. 1, DENVER,
Mr. Justice Rehnquist filed dissent-
COLORADO, et al.
ing opinion.
No. 71-507.
Mr. Justice White took no part in
Argued Oct. 12, 1972.
decision of case.
Decided June 21, 1973.
1. Schools and School Districts @=13
Rehearing Denied Oct. 9, 1973.
What is or is not a segregated
See 414 U.S. 883, 94 S.Ct. 27.
school depends on facts of particular
case. U.S.C.A.Const. Amend. 14.
Suit wherein parents of children at-
tending public schools sued individually,
2. Schools and School Districts >13
and on behalf of their minor children,
In addition to racial and ethnic
and on behalf of class of persons simi-
composition of school's student body,
larly situated, to remedy alleged segre-
other factors to be considered in deter-
gated condition of certain schools and
mining whether school is segregated are
effects of that condition. The United
racial and ethnic composition of faculty
States District Court for the District of
and staff, and community and adminis-
Colorado, 303 F.Supp. 279 granted a
tration attitudes towards school. U.S.
preliminary injunction, and at 303 F.
C.A.Const. Amend. 14.
Supp. 289 made supplemental findings,
3. Schools and School Districts 0-13
and at 313 F.Supp. 61, entered judgment
For purposes of defining a "segre-
in favor of plaintiffs on first claim, and
gated" school, Negroes and Hispanos
413 U.S. 189 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2687
Cite as 93 S.Ct. 2686 (1973)
must be placed in same category. 9. Schools and School Districts -13
Const.Colo. art. 9, § 8; U.S.C.A.Const.
In discharging burden of showing
Amend. 14.
that segregated schooling is not result
of intentionally segregative acts, school
4. Schools and School Districts -13
authorities may not rely on some alleg-
In absence of showing that school
edly logical, racially neutral explanation
district is divided into clearly unrelated
for their actions but must adduce proof
units, proof of state-imposed segregation
sufficient to support finding that segre-
in substantial portion of district will
gative intent was not among factors that
suffice to support finding of existence
motivated their actions. U.S.G.A.Const.
of dual school system and imposes on
Amend. 14.
school authorities the affirmative duty
10. Schools and School Districts -13
to effectuate transition to racially non-
If actions of school authorities were
discriminatory school system. Const.
to any degree motivated by segregative
Colo. art. 9, § 8; U.S.C.A.Const. Amend.
intent and segregation resulting from
14.
those actions continues to exist, fact of
remoteness in time does not make those
5. Schools and School Districts -13
Finding of intentional segregation
actions any less intentional. U.S.C.A.
Const. Amend. 14.
on part of school board in one portion of
school system is highly relevant to issue
11. Schools and School Districts 13
of board's intent with respect to other
Prima facie case of existence of
segregated schools in system. Const.
dual school system which arises from ev-
Colo. art. 9, § 8; U.S.C.A.Const. Amend.
idence of school authorities' pursuit of
14.
intentional segregative policy in portion
of school district may be met by evi-
6. Schools and School Districts -13
dence supporting finding that lesser de-
Finding of intentionally segregative
gree of segregated schooling would not
school board actions in meaningful por-
have resulted even if school authorities
tion of school system created prima fa-
had not acted as they did. U.S.C.A.
cie case of unlawful segregated design
Const. Amend. 14.
on part of school authorities, and shifted
to those authorities the burden of prov-
12. Schools and School Districts -13
ing that other segregated schools within
Plaintiffs in school desegregation
system were not the result of intention-
case are not required to prove cause in
ally segregative actions even if it was
sense of nonattenuation.
determined that different areas of
13. Schools and School Districts -13
school districts should be viewed inde-
If school board cannot disprove seg-
pendently of each other. Const.Colo.
regative intent, it cannot rebut prima
art. 9, § 8; U.S.C.A.Const. Amend. 14.
facie case arising from pursuit of segre-
gative policy in portion of school district
7. Schools and School Districts -13
by showing that its past segregative
Differentiating factor between de
acts did not create or contribute to cur-
jure segregation and so-called de facto
rent segregated condition of schools.
segregation is purpose or intent to seg-
U.S.C.A.Const. Amend. 14.
regate. U.S.C.A.Const. Amend. 14.
14. Schools and School Districts 13
8. Schools and School Districts 141(5)
Where school authorities have prac-
In school system with history of
ticed de jure segregation in meaningful
segregation, discharge of disproportion-
portion of school system by techniques
ately large number of Negro teachers in-
indicating that "neighborhood school"
cident to desegregation thrusts on school
concept has not been maintained free of
board the burden of justifying its con-
manipulation, assertion that "neighbor-
duct by clear and convincing evidence.
hood school policy" was racially neutral
2688
93 SUPREME COURT REPORTER
413 U.S. 189
was not dispositive of claims asserted in
(a) Proof that the school authori-
school desegregation case.
ties have pursued an intentional segre-
gative policy in a substantial portion of
Syllabus*
the school district will support a finding
Petitioners sought desegregation of
by the trial court of the existence of a
the Park Hill area schools in Denver
dual system, absent a showing that the
and, upon securing an order of the Dis-
district is divided into clearly unrelated
trict Court directing that relief, expand-
units. Pp. 2694-2695.
ed their suit to secure desegregation of
(b) On remand the District Court
the remaining schools of the Denver
should decide initially whether respon-
school district, particularly those in the
dent School Board's deliberately segre-
core city area. The District Court de-
gative policy respecting the Park Hills
nied the further relief, holding that the
schools constitutes the whole Denver
deliberate racial segregation of the Park
school district a dual school system. Pp.
Hill schools did not prove a like segre-
2695-2696.
gation policy addressed specifically to
the core city schools and requiring peti-
(c) Where, as in this case, a policy
tioners to prove de jure segregation for
of intentional segregation has been
each area that they sought to have de-
proved with respect to a significant por-
segregated. That court nevertheless
tion of the school system, the burden is
found that the segregated core city
on the school authorities (regardless of
schools were educationally inferior to
claims that their "neighborhood school
"white" schools elsewhere in the district
policy" was racially neutral) to prove
and, relying on Plessy V. Ferguson, 163
that their actions as to other segregated
U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, or-
schools in the system were not likewise
dered the respondents to provide sub-
motivated by a segregative intent. Pp.
stantially equal facilities for those
2697-2700.
schools. This latter relief was reversed
by the Court of Appeals, which affirmed
10 Cir., 445 F.2d 990, modified and
the Park Hill ruling and agreed that
remanded.
Park Hill segregation, even though de-
liberate, proved nothing regarding an
overall policy of segregation. Held:
James M. Nabrit, III, New York City,
1. The District Court, for purposes
and Gorden C. Greiner, Denver, Colo.,
of defining a "segregated" core city
for petitioners.
school, erred in not placing Negroes and
Hispanos in the same category since
William K. Ris, Denver, Colo., for re-
both groups suffer the same educational
spondents:
inequities when compared with the
treatment afforded Anglo students. Pp.
Mr. Justice BRENNAN delivered the [19:
2691-2692.
opinion of the Court.
2. The courts below did not apply
This school desegregation case con-
the correct legal standard in dealing
cerns the Denver, Colorado, school sys-
with petitioners' contention that re-
tem. That system has never been oper-
spondent School Board had the policy of
ated under a constitutional or statutory
deliberately segregating the core city
provision that mandated or permitted
schools. Pp. 2692-2700.
racial segregation in public education.¹
*
The syllabus constitutes no part of the
200 U.S. 321, 337, 26 S.Ct. 282, 287, 50
opinion of the Court but has been pre-
L.Ed. 499.
pared by the Reporter of Decisions for the
convenience of the reader. See United
1. To the contrary, Art. IX, § 8, of the
States V. Detroit Timber & Lumber Co.,
Colorado Constitution expressly prohibits
U.S. 193 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2689
Cite as 93 S.Ct. 2686 (1973)
Rather, the gravamen of this action, middle of the Negro community west of
brought in June 1969 in the District
Park Hill, by the gerrymandering of
Court for the District of Colorado by
student attendance zones, by the use of
parents of Denver schoolchildren, is
so-called "optional zones," and by the ex-
that respondent School Board alone, by
cessive use of mobile classroom units,
use of various techniques such as the
among other things, the respondent
manipulation of student attendance
School Board had engaged over almost a
zones, schoolsite selection and a neigh-
decade after 1960 in an unconstitutional
borhood school policy, created or main-
policy of deliberate racial segregation
tained racially or ethnically (or both ra-
with respect to the Park Hill schools.3
cially and ethnically) segregated schools
The court therefore ordered the Board
throughout the school district, entitling
to desegregate those schools through the
petitioners to a decree directing desegre-
implementation of the three rescinded
gation of the entire school district.
resolutions. D.C., 303 F.Supp. 279
The boundaries of the school district
and 289 (1969).
are coterminous with the boundaries of
Segregation in Denver schools is not
the city and county of Denver. There
limited, however, to the schools in the
were in 1969, 119 schools 2 with 96,580
Park Hill area, and not satisfied with
pupils in the school system. In early
their success in obtaining relief for
1969, the respondent School Board
Park Hill, petitioners pressed their
adopted three resolutions, Resolutions
prayer that the District Court order de-
1520, 1524, and 1531, designed to deseg-
segregation of all segregated schools in
regate the schools in the Park Hill area
the city of Denver, particularly the
in the northeast portion of the city.
heavily segregated schools in the core
193
T wing an election which produced a
city area.⁴ But that court concluded
beard majority opposed to the resolu-
that its finding of a purposeful and sys-
tions, the resolutions were rescinded and
tematic program of racial segregation
replaced with a voluntary student trans-
affecting thousands of students in the
fer program. Petitioners then filed this
Park Hill area did not, in itself, impose
action, requesting an injunction against
on the School Board an affirmative duty
the rescission of the resolutions and an
to eliminate segregation throughout the
order directing that the respondent
school district. Instead, the court frac-
School Board desegregate and afford
tionated the district and held that peti-
equal educational opportunity "for the
tioners had to make a fresh showing of de
School District as a whole." App.
jure segregation in each area of the city
32a. The District Court found that by
for which they sought relief. Moreover,
the construction of a new, relatively
the District Court held that its finding
small elementary school, Barrett, in the
of intentional segregation in Park Hill
any "classification of pupils
on
3. The so-called "Park Hill schools" are
account of race or color." As early as
Barrett, Stedman, Hallett, Smith, Philips,
1927, the Colorado Supreme Court held
and Park Hill Elementary Schools; and
that a Denver practice of excluding black
Smiley Junior High School. East High
students from school programs at Manual
School serves the area but is located out-
High School and Morey Junior High
side of it. (See Appendix.)
School violated state law. Jones V.
Newlon, 81 Colo. 25, 253 P. 3S6.
4. The so-called "core city schools" which
are said to be segregated are Boulevard,
2. There were 92 elementary schools, 15
Bryant-Webster, Columbine. Crofton,
junior high schools, 2 junior-senior high
Ebert, Elmwood, Elyria, Fairmont, Fair-
schools, and 7 senior high schools. In
view, Garden Place, Gilpin. Greenlee,
addition, the Board operates an Opportu-
Harrington, Mitchell, Smedley. Swansea,
nity School, a Metropolitan Youth Educa-
Whittier, Wyatt, and Wyman Elementary
tion Center, and an Aircraft Training
Schools; Baker, Cole, and Morey Junior
'ity.
High Schools; and East, West. and Mau-
ual High Schools. (See Appendix.)
93 S.Ct.-169
2690
93 SUPREME COURT REPORTER
413 U.S. 193
was not in any sense material to the
F.Supp. 90, 96 (1970). The District
question of segregative intent in other
Court then formulated a varied remedial
areas of the city. Under this restrictive
plan to that end which was incorporated
approach, the District Court concluded
in the Final Decree.5
that petitioners' evidence of intentional-
Respondent School Board appealed,
ly discriminatory School Board action in
and petitioners cross-appealed, to the
areas of the district other than Park
Court of Appeals for the Tenth Circuit.
Hill was insufficient to "dictate the con-
That court sustained the District
clusion that this is de jure segregation
Court's finding that the Board had en-
which calls for an all-out effort to de-
gaged in an unconstitutional policy of de-
segregate. It is more like de facto seg-
liberate racial segregation with respect
regation, with respect to which the rule
to the Park Hill schools and affirmed the
is that the court cannot order desegrega-
Final Decree in that respect. As to the
tion in order to provide a better bal-
core city schools, however, the Court of
ance." D.C., 313 F.Supp. 61, 73 (1970).
Appeals reversed the legal determination
Nevertheless, the District Court went
of the District Court that those schools
195
on to hold that the proofs established
were maintained in violation of the
that the segregated core city schools
Fourteenth Amendment because of the
were educationally inferior to the pre-
unequal educational opportunity afford-
dominantly "white" or "Anglo" schools
ed, and therefore set aside SO much of
in other parts of the district-that is,
the Final Decree as required desegrega-
"separate facilities
unequal in
tion and educational improvement pro-
the quality of education provided." Id.,
grams for those schools. 445 F.2d 990
at 83. Thus, the court held that, under
(1971). In reaching that result, the
the doctrine of Plessy V. Ferguson, 163
Court of Appeals also disregarded re-
U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256
spondent School Board's deliberate racial
(1896), respondent School Board consti-
segregation policy respecting the Park
tutionally "must at a minimum
Hill schools and accepted the District
194 offer an equal educational opportunity,"
Court's finding that petitioners had not
313 F.Supp., at 83, and, therefore, al-
proved that respondent had a like policy
though all-out desegregation "could not
addressed specifically to the core city
be decreed,
the only feasible
schools.
and constitutionally acceptable program
We granted petitioners' petition for
-the only program which furnishes any-
certiorari to review the Court of Ap-
thing approaching substantial equality-
peals' judgment insofar as it reversed
is a system of desegregation and integra-
that part of the District Court's Final
tion which provides compensatory educa-
Decree as pertained to the core city
tion in an integrated environment." 313
schools. 404 U.S. 1036, 92 S.Ct. 707, 30
5. The first of the District Court's four
were not included within the scope of the
opinions, 303 F.Supp. 279, was filed
three 1969 Board resolutions. The Court
July 31, 1969, and granted petitioners' ap-
of Appeals filed five unreported opinions:
plication for a preliminary injunction.
on August 5, 1969, vacating preliminary
The second opinion, 303 F.Supp. 289, was
injunctions; on August 27, 1969, staying
filed August 14, 1969, and made supple-
preliminary injunction; on September 15,
mental findings and conclusions. The
1969, on motion to amend stay; on
third opinion, 313 F.Supp. 61, filed March
October 17, 1969, denying motions to
21, 1970, was the opinion on the merits.
dismiss; and on March 26, 1971, grant-
The fourth opinion, 313 F.Supp. 90, was
ing stay. Mr. Justice Brennan, on August
on remedy and was filed May 21, 1970.
29, 1969, filed an opinion reinstating the
The District Court filed an unreported
prelimin ary injunction, 396 U.S. 1215, 90
opinion on October 19, 1971, in which re-
S.Ct. 12, 24 L.Ed.2d 37, and on April 26,
lief was extended to Hallett and Sted-
1971, this Court entered a per
man Elementary Schools which were
curiam order vacating the Court of
found by the court in its July 31, 1969,
Appeals' stay, 402 U.S. 182, 91 S.Ct.
opinion to be purposefully segregated but
1399, 28 L.Ed.2d 710.
413 U.S. 197
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2691
Cite as 93 S.Ct. 2686 (1973)
L.Ed.2d 728 (1972). The judgment of The District Court used those figures to
the Court of Appeals in that respect is
signify educationally inferior schools,
modified to vacate instead of reverse the
and there is no suggestion in the record
Final Decree. The respondent School
that those same figures were or would be
Board has cross-petitioned for certiorari
used to define a "segregated" school in
to review the judgment of the Court of
the de jure context. What is or is not a
Appeals insofar as it affirmed that part
segregated school will necessarily depend
of the District Court's Final Decree as
on the facts of each particular case. In
pertained to the Park Hills schools.
addition to the racial and ethnic compo-
School District No. 1 V. Docket No. 71-
sition of a school's student body, other
572, Keyes. The cross-petition is denied.
factors, such as the racial and ethnic
composition of faculty and staff and
I
the community and administration atti-
tudes toward the school, must be taken
[1, 2] Before turning to the primary
into consideration. The District Court
question we decide today, a word must
95
has recognized these specific factors as
be said about the District Court's meth-
elements of the definition of a "segre-
od of defining a "segregated" school.
gated" school, id., at 74, and we may
Denver is a tri-ethnic, as distinguished
therefore infer that the court will con-
from a bi-racial, community. The over-
sider them again on remand.
all racial and ethnic composition of the
Denver public schools is 66 Anglo, 14%
[3] We conclude, however, that the
197
Negro, and 20% Hispano.⁶ The Dis-
District Court erred in separating Ne-
trict Court in assessing the question of
groes and Hispanos for purposes of de-
196 de jure segregation in the core city
fining a "segregated" school. We have
schools, preliminarily resolved that Ne-
held that Hispanos constitute an identi-
groes and Hispanos should not be placed
fiable class for purposes of the Four-
in the same category to establish the
teenth Amendment. Hernandez V. Tex-
segregated character of a school. 313
as, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed.
F.Supp., at 69. Later, in determining
866 (1954). See also United States V.
the schools that were likely to produce
Texas Education Agency, 467 F.2d 848
an inferior educational opportunity, the
(CA5 1972) (en banc) Cisneros V. Cor-
court concluded that a school would be
pus Christi Independent School District,
467 F.2d 142 (CA5 1972) (en banc)
considered inferior only if it had "a con-
Alvarado V. El Paso Independent School
centration of either Negro or Hispano
District, 445 F.2d 1011 (CA5) 1971)
students in the general area of 70 to 75
Soria V. Oxnard School District, 328 F.
percent." Id., at 77. We intimate no
Supp. 155 (CD Cal.1971) ; Romero V.
opinion whether the District Court's
Weakley, 226 F.2d 399 (CA9 1955). In-
70%-to-75% requirement was correct.
deed the District Court recognized this
6. The parties have used the terms "Anglo," "Negro," and "Hispano" through-
out the record. We shall therefore use those terms.
"Hispano" is the term used by the Colorado Department of Education to refer
to a person of Spanish, Mexican, or Cuban heritage. Colorado Department of
Education, Human Relations in Colorado, A Historical Record 203 (1968). In
the Southwest, the "Hispanos" are more commonly referred to as "Chicanos" or
"Mexican-Americans."
The more specific racial and ethnic composition of the Denver public schools
is as follows:
Anglo
Negro
Hispano
Pupils
No.
%
No.
%
No.
%
Elementary
33,719
61.8
8,297
15.2
12,570
23.0
Junior High
14,848
68.7
2,893
13.4
3,858
17.9
Senior High
14,852
72.8
2,442
12.0
3,101
15.2
Total
63,419
65.7
13,632
14.1
19,529
20.2
2692
93 SUPREME COURT REPORTER
413 U.S. 197
in classifying predominantly Hispano
gal standard in addressing petitioners'
schools as "segregated" schools in their
contention that respondent School Board
own right. But there is also much evi-
engaged in an unconstitutional policy of
dence that in the Southwest Hispanos
deliberate segregation in the core city
and Negroes have a great many things
schools. Our conclusion is that those
in common. The United States Com-
courts did not apply the correct standard
mission on Civil Rights has recently
in addressing that contention.9
published two Reports on Hispano edu-
cation in the Southwest.⁷ Focusing on
Petitioners apparently concede for the
students in the States of Arizona, Cal-
purposes of this case that in the case of
ifornia, Colorado, New Mexico, and Tex-
a school system like Denver's, where no
as, the Commission concluded that His-
statutory dual system has ever existed,
panos suffer from the same educational
plaintiffs must prove not only that seg-
inequities as Negroes and American In-
regated schooling exists but also that it
dians.⁸ In fact, the District Court it-
was brought about or maintained by in-
self recognized that "[o]ne of the things
tentional state action. Petitioners
which the Hispano has in common with
proved that for almost a decade after
the Negro is economic and cultural dep-
1960 respondent School Board had en-
gaged in an unconstitutional policy of
198 rivation I and discrimination." 313 F.
deliberate racial segregation in the Park
Supp., at 69. This is agreement that,
Hill schools. Indeed, the District Court
though of different origins Negroes
and Hispanos in Denver suffer identical
found that "[b]etween 1960 and 1969
discrimination in treatment when com-
the Board's policies|with respect to these
199
northeast Denver schools show an unde-
pared with the treatment afforded An-
glo students. In that circumstance, we
viating purpose to isolate Negro stu-
think petitioners are entitled to have
dents" in segregated schools "while pre-
schools with a combined predominance
serving the Anglo character of [other]
of Negroes and Hispanos included in the
schools." 303 F.Supp., at 294. This
finding did not relate to an insubstantial
category of "segregated" schools.
or trivial fragment of the school system.
On the contrary, respondent School
II
Board was found guilty of following a
In our view, the only other question
deliberate segregation policy at schools
that requires our decision at this time is
attended, in 1969, by 37.69% of Den-
that subsumed in Question 2 of the ques-
ver's total Negro school population, in-
tions presented by petitioners, namely
cluding one-fourth of the Negro elemen-
whether the District Court and the
tary pupils, over two-thirds of the Ne-
Court of Appeals applied an incorrect le-
gro junior high pupils, and over two-
7. United States Commission on Civil
public education at a rate equal to that of
Rights, Mexican American Education
their Auglo classmates."
Study, Report 1, Ethnic Isolation of Mex-
ican Americans in the Public Schools of
9. Our Brother REHNQUIST argues in
the Southwest (Apr. 1971); United States
dissent that the Court somehow trans-
Commission on Civil Rights, Mexican
gresses the "two-court" rule. Infra, at
American Educational Series, Report 2,
2724. But at this stage, we have no
The Unfinished Education (October
occasion to review the factual findings
1971).
concurred in by the two courts below.
Cf. Neil V. Biggers, 409 U.S. 188, 93 S.Ct.
8. The Commission's second Report, on p.
375. 34 L.Ed.2d 401 (1972). We address
41, summarizes its findings:
only the question whether those courts ap-
"The basic finding of this report is that
plied the correct legal standard in de-
minority students in the Southwest-
ciding the case as it affects the core city
Mexican Americans, blacks, American
schools.
FORD
Indians-do not obtain the benefits of
GERALD
LIBRARY
413 U.S. 200
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2693
Cite as 93 S.Ct. 2686 (1973)
fifths of the Negro high school pupils.¹⁰
plaintiffs prove that a current condition
1200 In addition, there was uncontroverted
of segregated schooling exists within a
evidence that teachers and staff had for
school district where a dual system was
years been assigned on the basis of a
compelled or authorized by statute at the
minority teacher to a minority school
time of our decision in Brown V. Board
throughout the school system. Respond-
of Education, 347 U.S. 483, 74 S.Ct. 686,
ent argues, however, that a finding of
98 L.Ed. 873 (1954) (Brown I), the
state-imposed segregation as to a sub-
State automatically assumes an affirma-
stantial portion of the school system can
tive duty "to effectuate a transition to a
be viewed in isolation from the rest of
racially nondiscriminatory school sys-
the district, and that even if state-im-
tem," Brown V. Board of Education, 349
posed segregation does exist in a sub-
U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed.
stantial part of the Denver school system,
1083 (1955) (Brown II), see also
it does not follow that the District Court
Green V. County School Board, 391 U.S.
could predicate on that fact a finding that
430, 437-438, 88 S.Ct. 1689, 1693-1694,
the entire school system is a dual system.
20 L.Ed.2d 716 (1968), that is, to elimi-
We do not agree. We have never sug-
nate from the public schools within their
gested that plaintiffs in school desegre-
school system "all vestiges of state-im-
gation cases must bear the burden of
proving the elements of de jure segrega-
posed segregation." Swann V. Char-
tion as to each and every school or each
lotte-Meckleburg Board of Education,
and every student within the school sys-
402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.
tem. Rather, we have held that where
Ed.2d 554 (1971) 11
10. The Board was found guilty of intentionally segregative acts of one kind or
another with respect to the schools listed below. (As to Cole and East, the con-
clusion rests on the rescission of the resolutions.)
PUPILS 1968-1969
Anglo
Negro
Hispano
Total
Barrett
1
410
12
423
Stedman
27
634
25
686
Hallett
76
634
41
751
Park Hill
684
223
56
963
Philips
307
203
45
555
Smiley Jr. High
360
1,112
74
1,546
Cole Jr. High
46
884
289
1,219
East High
1,409
1,039
175
2,623
Subtotal Elementary
1,095
2,104
179
3,378
Subtotal Jr. High
406
1,996
363
2,765
Subtotal Sr. High
1,409
1,039
175
2,623
Total
2,910
5,139
717
8,766
The total Negro school enrollment in 1968 was:
Elementary
8,297
Junior High
2,893
Senior High
2,442
Thus, the above-mentioned schools included:
Elementary
25.36% of all Negro elementary pupils
Junior High
68.99% of all Negro junior high pupils
Senior High
42.55% of all Negro senior high pupils
Total
37.69% of all Negro pupils
11. Our Brother REIINQUIST argues in
integrate" the schools of a dual school
dissent that Brown V. Board of Education
system but was only a "prohibition
did not impose an "affirmative duty to
against discrimination" "in the sense that
2694
93 SUPREME COURT REPORTER
413 U.S. 201
201
This is not a case, however, where a
and this, in turn, together with the ele-
statutory dual system has ever existed.
ments of student assignment and school
Nevertheless, where plaintiffs prove
construction, may have a profound recip-
that the school authorities have carried
rocal effect on the racial composition of
out a systematic program of segregation
residential neighborhoods within a met-
affecting a substantial portion of the
ropolitan area, thereby causing further
students, schools, teachers, and facilities
racial concentration within the schools.
within the school system, it is only com-
We recognized this in Swann when we
mon sense to conclude that there exists a
said:
predicate for a finding of the existence
of a dual school system. Several consid-
"They [school authorities] must de-
erations support this conclusion. First,
cide questions of location and capacity
it is obvious that a practice of concen-
in light of population growth, fi-
trating Negroes in certain schools by
nances, land values, site availability,
structuring attendance zones or desig-
through an almost endless list of fac-
tors to be considered. The result of
nating "feeder" schools on the basis of
race has the reciprocal effect of keeping
this will be a decision which, when
other nearby schools predominantly
combined with one technique or anoth-
white.12 Similarly, the practice of
er of student assignment, will deter-
building a school-such as the Barrett
mine the racial composition of the stu-
Elementary School in this case-to a
dent body in each school in the sys-
certain size and in a certain location,
tem. Over the long run, the conse-
"with conscious knowledge that it would
quences of the choices will be far
202 be a segregated school," 303 F.Supp., at
reaching. People gravitate toward
285, has a substantial reciprocal effect
school facilities, just as schools are lo-
on the racial composition of other near-
cated in response to the needs of peo-
by schools. So also, the use of mobile
ple. The location of schools may thus
classrooms, the drafting of student trans-
influence the patterns of residential
fer policies, the transportation of stu-
development of a metropolitan area
dents, and the assignment of faculty and
and have important impact on compo-
staff, on racially identifiable bases, have
sition of inner-city neighborhoods.
the clear effect of earmarking schools
"In the past, choices in this respect
according to their racial composition,
have been used as a potent weapon for
the assignment of a child to a particular
L.Ed.2d 19 (1969) ; Swann V. Charlotte-
school is not made to depend on his race
Mecklenburg Board of Education, 402
"
Infra, at 2722. That is the
U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.
interpretation of Brown expressed 18
2d 554 (1971). See also Kelley V. Metro-
years ago by a three-judge court in Briggs
politan County Board of Education, 317
V. Elliott, 132 F.Supp. 776, 777 (D.C.
F.Supp. 980, 984 (D.C.1970).
1955) : "The Constitution, in other
words, does not require integration. It
12. As a former School Board President
merely forbids discrimination." But
who testified for the respondents put it
Green V. County School Board, 391 U.S.
"Once you change the boundary of any
430, 437-438, 88 S.Ct. 1689, 1694, 20 L.
one school, it is affecting all the schools
Ed.2d 716 (1968), rejected that interpre-
Testimony of Mrs. Lois Heath
tation insofar as Green expressly held
Johnson on cross-examination. App.
that "School boards
operating state-
951a-952a.
compelled dual systems were nevertheless
Similarly, Judge Wisdom has recently
clearly charged [by Brown II] with the
stated:
affirmative duty to take whatever steps
"Infection at one school infects all
might be necessary to convert to a unitary
schools. To take the most simple
system in which racial discrimination
example, in a two school system, all
would be eliminated root and branch."
blacks at one school means all or almost
Green remains the governing principle.
all whites at the other." United States V.
Alexander V. Holmes County Board of
Texas Education Agency, 467 F.2d 848,
Education, 396 U.S. 19, 90 S.Ct. 29, 24
888 (CA5 1972).
413 U.S. 205 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2695
Cite as 93 S.Ct. 26S6 (1973)
creating or maintaining a state-segre-
tive duty "to effectuate a transition to a
gated school system. In addition to
racially nondiscriminatory school sys-
the classic pattern of building schools
tem." Brown 11, supra, 394 U.S., at 301,
specifically intended for Negro or
75 S.Ct. at 756.
white students, school authorities have
On remand, therefore, the District 204
sometimes, since Brown, closed schools
Court should decide in the first instance
203
which appeared likely to become ra-
whether respondent School Board's de-
cially mixed through changes in
liberate racial segregation policy with
neighborhood residential patterns.
respect to the Park Hill schools consti-
This was sometimes accompanied by
tutes the entire Denver school system a
building new schools in the areas of
dual school system. We observe that on
white suburban expansion farthest
the record now before us there is indica-
from Negro population centers in or-
tion that Denver is not a school district
der to maintain the separation of the
which might be divided into separate,
races with a minimum departure from
identifiable and unrelated units. The
the formal principles of 'neighborhood
District Court stated, in its summary of
zoning.' Such a policy does more than
findings as to the Park Hill schools, that
simply influence the short-run compo-
there was "a high degree of interrela-
sition of the student body of a new
tionship among these schools, SO that
school. It may well promote segregat-
any action by the Board affecting the
ed residential patterns which, when
racial composition of one would almost
combined with 'neighborhood zoning,'
certainly have an effect on the others."
further lock the school system into the
303 F.Supp., at 294. And there was co-
mold of separation of the races. Upon
gent evidence that the ultimate effect of
a proper showing a district court may
the Board's actions in Park Hill was not
consider this in fashioning a remedy."
limited to that area: the three 1969 res-
402 U.S., at 20-21, 91 S.Ct. at 1278.
olutions designed to desegregate the
[4] In short, common sense dictates
Park Hill schools changed the attend-
the conclusion that racially inspired
ance patterns of at least 29 schools at-
school board actions have an impact be-
tended by almost one-third of the pupils
yond the particular schools that are the
in the Denver school system. 13 This
subjects of those actions. This is not to
suggests that the official segregation in
say, of course, that there can never
Park Hill affected the racial composition
be a case in which the geographical struc-
of schools throughout the district.
ture of, or the natural boundaries with-
On the other hand, although the Dis-
in, a school district may have the ef-
trict Court did not state this, or indeed
fect of dividing the district into sep-
any, reason why the Park Hill finding
arate, identifiable and unrelated units.
was disregarded when attention was
Such a determination is essentially a
turned to the core city schools-beyond
question of fact to be resolved by the
saying that the Park Hill and core city
trial court in the first instance, but
areas were in its view "different"-
such cases must be rare. In the ab-
the areas, although adjacent to each
sence of such a determination, proof of
other, are separated by Colorado Boule-
state-imposed segregation in a substan-
vard, a six-lane highway. From the
tial portion of the district will suffice to
record, it is difficult to assess the actual
support a finding by the trial court of
significance of Colorado Boulevard to
the existence of a dual system. Of
the Denver school system. The Boule-
course, where that finding is made, as in
vard runs the length of the school dis-
cases involving statutory dual systems,
trict, but at least two elementary 205
the school authorities have an affirma-
schools, Teller and Steck, have attend-
13. See the chart in 445 F.2d, at 1008-1009,
attended the schools affected by the resolu-
which indicates that 31,767 pupils
tions.
2696
93 SUPREME COURT REPORTER
413 U.S. 205
ance zones which cross the Boulevard.
III
Moreover, the District Court, although
referring to the Boulevard as "a natural
The District Court proceeded on the
dividing line," 303 F.Supp., at 282, did
premise that the finding as to the Park
not feel constrained to limit its consid-
Hill schools was irrelevant to the consid-
eration of de jure segregation in the
eration of the rest of the district, and
Park Hill area to those schools east of
began its examination of the core city
the Boulevard. The court found that by
schools by requiring that petitioners
building Barrett Elementary School west
prove all of the essential elements of de
of the Boulevard and by establishing
jure segregation-that is, stated simply,
the Boulevard as the eastern boundary
a current condition of segregation re-
of the Barrett attendance zone, the
sulting from intentional state action di-
206
Board was able to maintain for a num-
rected specifically to the core city
ber of years the Anglo character of
schools. 14 The segregated character of
the Park Hill schools. This suggests
the core city schools could not be and
that Colorado Boulevard is not to be re-
is not denied. Petitioners' proof showed
garded as the type of barrier that of it-
that at the time of trial 22 of the
self could confine the impact of the
schools in the core city area were less
Board's actions to an identifiable area
than 30% in Anglo enrollment and 11
of the school district, perhaps because a
of the schools were less than 10%
major highway is generally not such an
Anglo. 15 Petitioners also introduced
effective buffer between adjoining
substantial evidence demonstrating the
areas. Cf. Davis V. Board of School
existence of a disproportionate racial
Commissioners of Mobile County, 402
and ethnic composition of faculty and
U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577,
staff at these schools.
(1971). But this is a factual question
On the question of segregative intent,
for resolution by the District Court on
petitioners presented evidence tending to
remand. In any event, inquiry whether
show that the Board, through its actions
the District Court and the Court of Ap-
over a period of years, intentionally cre-
peals applied the correct legal standards
ated and maintained the segregated
in addressing petitioners' contention of
character of the core city schools. Re-
deliberate segregation in the core city
spondents countered this evidence by
schools is not at an end even if it be true
arguing that the segregation in these
that Park Hill may be separated from the
schools is the result of a racially neutral
"neighborhood school policy" and that
rest of the Denver school district as a
207
the acts of which petitioners complain
separate, identifiable, and unrelated unit.
are explicable within the bounds of that
14. Our Brother REHNQUIST argues in
dissent that the District Court did take
this opinion, we discussed the building of
Barrett, boundary changes and the use of
the Park Hill finding into account in
mobile units as they relate to the purpose
addressing the question of alleged de jure
for the rescission of Resolutions 1520,
segregation of the core city schools.
1524 and 1531." Obviously, the District
Infra, at 2724. He cites the following
Court was carefully limiting the comment
excerpt from a footnote to the Dis-
to the consideration being given past dis-
trict Court's opinion of March 21, 1970,
criminatory acts affecting the Park Hill
313 F.Supp., at 74-75, n. 18: "Although
schools in assessing the causes of current
past discriminatory acts may not be a
segregation of those schools.
substantial factor contributing to present
segregation, they may nevertheless be
15. In addition to these 22 schools, see 313
probative on the issue of the segregative
F.Supp., at 78, two more schools, Elyria
purpose of other discriminatory acts
and Smedley Elementary Schools, became
which are in fact a substantial factor in
less than 30% Anglo after the District
causing a present segregated situation."
Court's decision on the merits. These two
But our, Brother REHNQUIST omits the
schools were thus included in the list of
rest of the footnote: "Thus, in part I of
segregated schools. 313 F.Supp., at 92.
13 U.S. 205
413 U.S. 209 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2697
Cite as 93 S.Ct. 2686 (1973)
policy. Accepting the School Board's ex-
ples are equally as applicable to civil
planation, the District Court and the
cases as to criminal cases
eded on the
Court of Appeals agreed that a finding
Id., at 300. See also C. McCormick, Evi-
to the Park
of de jure segregation as to the core city
dence 329 (1954).
) the consid-
schools was not permissible since peti-
district, and
tioners had failed to prove "(1) a racial-
[6, 7] Applying these principles in
he core city
ly discriminatory purpose and (2) a
the special context of school desegrega-
petitioners
causal relationship between the acts
tion cases, we hold that a finding of in-
ments of de
complained of and the racial imbalance
tentionally segregative school board ac-
tated simply,
admittedly existing in those schools."
tions in a meaningful portion of a school
regation re-
445 F.2d at 1006. This assessment of
system, as in this case, creates a pre-
te action1di-
206
petitioners' proof was clearly incorrect.
sumption that other segregated school-
core city
ing within the system is not adventi-
character of
[5] Although petitioners had already
tious. It establishes, in other words, a
not be and
proved the existence of intentional
prima facie case of unlawful segregative
proof showed
school segregation in the Park Hill
design on the part of school authorities,
22 of the
schools, this crucial finding was totally
and shifts to those authorities the bur-
ea were less
ignored when attention turned to the
den of proving that other segregated
ment and 11
core city schools. Plainly, a finding of
schools within the system are not also
than 10%
intentional segregation as to a portion
the result of intentionally segregative
introduced
of a school system is not devoid of pro-
actions. This is true even if it is deter-
istrating the
bative value in assessing the school au-
mined that different areas of the school
ionate racial
thorities' intent with respect to other
district should be viewed independently
faculty and
parts of the same school system. On the
of each other because, even in that situ-
contrary where, as here, the case in-
ation, there is high probability that
volves one shcool board, a finding of in-
where school authorities have effectuat-
gative intent,
tentional segregation on its part in one
ed an intentionally segregative policy in
ic
uding to
portion of a school system is highly rele-
a meaningful portion of the school sys-
gh its actions
vant to the issue of the board's intent
tem, similar impermissible considera-
entionally cre-
with respect to the other segregated
tions have motivated their actions in
e segregated
schools in the system. This is merely
other areas of the system. We empha-
schools. Re-
an application of the well-settled evi-
size that the differentiating factor be-
evidence by
dentiary principle that "the prior doing
tween de jure segregation and so-called
tion in these
of other similar acts, whether clearly
de facto segregation to which we re-
acially neutral
a part of a scheme or not, is useful
ferred in Swann 16 is purpose or intent
and that
207
as reducing the possibility that the
to segregate. Where school authorities
ners complain
act in question was done with innocent
have been found to have practiced pur-
ounds of that
intent." 2 J. Wigmore, Evidence 200 (3d
poseful segregation in part of a school
ed. 1940). "Evidence that similar and
system, they may be expected to oppose
he building of
related offenses were committed
system-wide desegrégation, as did the
and the use of
tend[s] to show a consistent
respondents in this case, on the ground
o the purpose
pattern of conduct highly relevant to the
that their purposefully segregative ac-
lutions 1520,
issue of intent." Nye & Nissen V. Unit-
tions were isolated and individual
the District
the comment
ed States, 336 U.S. 613, 618, 69 S.Ct.
events, thus leaving plaintiffs with the
iven past dis-
766, 769, 93 L.Ed. 919 (1949). Similar-
burden of proving otherwise. But at
the Park Hill
ly, a finding of illicit intent as to a
that point where an intentionally segre-
ses of current
meaningful portion of the item under
gative policy is practiced in a meaning- 209
consideration has substantial probative
ful or significant segment of a school
chools, see 313
value on the question of illicit intent
system, as in this case, the school au-
schools, Elyria
1208 as to the remainder. See, for example,
thorities cannot be heard to argue that
chools, became
the cases cited in 2 Wigmore, supra, at
plaintiffs have proved only "isolated and
r the District
ts. These two
301-302. And "[t]he foregoing princi-
individual" unlawfully segregative ac-
in the list of
Supn at 92.
16. 402 U.S. 1, 17-18, 91 S.Ct. 1267, 1276-1277, 28 L.Ed.2d 554 (1971).
93 S.Ct.-169½
2698
93 SUPREME COURT REPORTER
413 U.S. 209
tions. In that circumstance, it is both
600, 621 (S.D.Tex.1969). Nor is this
fair and reasonable to require that the
burden-shifting principle limited to
school authorities bear the burden of
former statutory dual systems. See, e.
showing that their actions as to other
g., Davis V. School District of City of
segregated schools within the system
Pontiac, 309 F.Supp. 734, 743, 744 (E.
were not also motivated by segregative
D.Mich.1970), aff'd, 443 F.2d 573 (CA6
intent.
1971) United States V. School District
No. 151, 301 F.Supp. 201, 228 (N.D.III.
[8] This burden-shifting principle is
1969), modified on other grounds, 432
not new or novel. There are no hard-
F.2d 1147 (CA7 1970). Indeed, to say
and-fast standards governing the alloca-
that a system has a "history of segrega-
tion of the burden of proof in every sit-
tion" is merely to say that a pattern of
uation. The issue, rather, "is merely a
intentional segregation has been estab-
question of policy and fairness based on
lished in the past. Thus, be it a statu-
experience in the different situations."
tory dual system or an allegedly unitary
9 J. Wigmore, Evidence § 2486, at 275
system where a meaningful portion of the
(3d ed. 1940). In the context of racial
system is found to be intentionally segre-
segregation in public education, the
gated, the existence of subsequent or
courts, including this Court, have recog-
other segregated schooling within the
nized a variety of situations in which
same system justifies a rule imposing on
"fairness" and "policy" require state au-
the school authorities the burden of
thorities to bear the burden of explaining
proving that this segregated schooling is
actions or conditions which appear to be
not also the result of intentionally segre-
racially motivated. Thus, in Swann, 402
gative acts.
U.S., at 18, 91 S.Ct. at 1277, we ob-
served that in a system with a "history
[9, 10] In discharging that burden,
of segregation," "where it is possible to
it is not enough, of course, that the
identify a 'white school' or a 'Negro
school authorities rely upon some alleg-
school' simply by reference to the racial
edly logical, racially neutral explanation
composition of teachers and staff, the
for their actions. Their burden is to ad-
quality of school buildings and equip-
duce proof sufficient to support a find-
ment, or the organization of sports activ-
ing that segregative intent was not
ities, a prima facie case of violation of
among the factors that motivated their
substantive constitutional rights under
actions. The courts below attributed
the Equal Protection Clause is shown."
much significance to the fact that many
Again, in a school system with a history
of the Board's actions in the core city
of segregation, the discharge of a dis-
area antedated our decision in Brown.
proportionately large number of Negro
We reject any suggestion that remote-
teachers incident to desegregation
ness in time has any relevance to the is-
"thrust[s] upon the School Board the
sue of intent. If the actions of school
burden of justifying its conduct by clear
authorities were to any degree motivat-
and convincing evidence." Chambers V.
ed by segregative intent and the segre-
Hendersonville City Board of Education,
gation resulting from those actions con-
364 F.2d 189, 192 (CA4 1966) (en
tinues to exist, the fact of remoteness in [211
banc). See also United States V. Jeffer-
time certainly does not make those ac-
son County Board of Education, 372 F.
tions any less "intentional."
|210 2d 836, 887-888 (CA5 1966), aff'd en
banc, 380 F.2d 385 (1967) ; North Caro-
[11-13] This is not to say, however,
lina Teachers Assn. V. Asheboro City
that the prima facie case may not be
Board of Education, 393 F.2d 736,
met by evidence supporting a finding
743 (CA4 1968) (en banc) ; Williams V.
that a lesser degree of segregated
Kimbrough, 295 F.Supp. 578, 585 (W.D.
schooling in the core city area would not
La.1969) ; Bonner V. Texas City Inde-
have resulted even if the Board had not
pendent School District, 305 F.Supp.
acted as it did. In Swann, we suggested
413 U.S. 213 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2699
Cite as 93 S.Ct. 2656 (1973)
that at some point in time the relation-
the school authorities have been found
ship between past segregative acts and
to have practiced de jure segregation in
present segregation may become so at-
a meaningful portion of the school sys-
tenuated as to be incapable of support-
tem by techniques that indicate that the
ing a finding of de jure segregation
"neighborhood school" concept has not
warranting judicial intervention. 402
been maintained free of manipulation.
U.S. at 31-32, 91 S.Ct., at 1283-1284.
Our observations in Swann, supra, at 28,
See also Hobson V. Hansen, 269 F.Supp.
91 S.Ct., at 1882, are particularly in-
401, 495 (D.C.1967), aff'd sub nom.
structive on this score:
Smuck V. Hobson, 132 U.S.App.D. 372,
"Absent a constitutional violation
408 F.2d 175 (1969).¹⁷ We made it
there would be no basis for judicially
clear, however, that a connection be-
ordering assignment of students on a
tween past segregative acts and present
racial basis. All things being equal,
segregation may be present even when
with no history of discrimination, it
not apparent and that close examination
might well be desirable to assign pu-
is required before concluding that the
pils to schools nearest their homes.
connection does not exist. Intentional
But all things are not equal in a sys-
school segregation in the past may have
tem that has been deliberately con-
been a factor in creating a natural envi-
structed and maintained to enforce ra-
ronment for the growth of further seg-
cial segregation.
regation. Thus, if respondent School
Board cannot disprove segregative in-
'Racially neutral' assign-
tent, it can rebut the prima facie case
ment plans proposed by school au-
only by showing that its past segrega-
thorities to a district court may be
tive acts did not create or contribute to
inadequate; such plans may fail to
the current segregated condition of the
counteract the continuing effects of
past school segregation resulting from
core city schools.
discriminatory location of school sites
or distortion of school size in order
[14] The respondent School Board
invoked at trial its "neighborhood school
to achieve or maintain an artificial
policy" as explaining racial and ethnic
racial separation. When school au-
concentrations within the core city
thorities present a district court
212 schools, arguing that since the core city
with a 'loaded game board,' affirm-
ative action in the form of reme-
area population had long been Negro and
Hispano, the concentrations were neces-
dial altering of attendance zones is
sarily the result of residential patterns
proper to achieve truly nondiscrimin-
atory assignments. In short, an as-
and not of purposefully segregative poli-
signment plan is not acceptable simply
cies. We have no occasion to consider in
because it appears to be neutral."
this case whether a "neighborhood
Thus, respondent School Board having
school policy" of itself will justify racial
213
been found to have practiced deliberate
or ethnic concentrations in the absence
racial segregation in schools attended by
of a finding that school authorities have
over one-third of the Negro school popu-
committed acts constituting de jure seg-
lation, that crucial finding establishes a
regation. It is enough that we hold that
prima facie case of intentional segrega-
the mere assertion of such a policy is
tion in the core city schools. In such
not dispositive where, as in this case,
case, respondent's neighborhood school
17. It may be that the District Court and
sense of "non-attenuation." That is a
Court of Appeals were applying this test
factor which becomes relevant only after
in holding that petitioners had failed to
past intentional actions resulting in
prove that the Board's actions "caused"
segregation have been established. At
the current condition of segregation in the
that stage. the burden becomes the school
core city schools. But, if so, certainly
authorities' to show that the current
plaintiffs in a school desegregation case
segregation is in no way the result of
are not required to prove "cause" in the
those past segregative actions.
2700
93 SUPREME COURT REPORTER
413 U.S. 213
policy is not to be determinative "simply
school" concept, either were not taken in
because it appears to be neutral."
effectuation of a policy to create or
maintain segregation in the core city
IV
schools, or, if unsuccessful in that ef-
fort, were not factors in causing the ex-
In summary, the District Court on re-
isting condition of segregation in these
mand, first, will afford respondent
schools. Considerations of "fairness"
School Board the opportunity to prove
and "policy" demand no less in light of
its contention that the Park Hill area is
the Board's intentionally segregative ac-
a separate, identifiable and unrelated
tions. If respondent Board fails to re-
section of the school district that should
but petitioners' prima facie case, the
be treated as isolated from the rest of
District Court must, as in the case of
the district. If respondent School Board
Park Hill, decree all-out desegregation of
fails to prove that contention, the Dis-
the core city schools.
trict Court, second, will determine
whether respondent School Board's con-
The judgment of the Court of Appeals
duct over almost a decade after 1960 in
is modified to vacate instead of reverse
carrying out a policy of deliberate racial
the parts of the Final Decree that con-
segregation in the Park Hill schools con-
cern the core city schools, and the case
stitutes the entire school system a dual
is remanded to the District Court for
school system. If the District Court de-
further proceedings consistent with this
termines that the Denver school system
opinion.¹
18
is a dual school system, respondent
Modified and remanded.
School Board has the affirmative duty
It is SO ordered.
to desegregate the entire system "root
and branch." Green V. County School
Mr. Chief Justice BURGER, concurs
Board, 391 U.S., at 438, 88 S.Ct. at
in the result.
1694. If the District Court deter-
mines, however, that the Denver school
Mr. Justice WHITE took no part in
system is not a dual school system by
the decision of this case.
reason of the Board's actions in Park
Hill, the court, third, will afford respon-
Mr. Justice DOUGLAS.
dent School Board the opportunity to re-
but petitioners' prima facie case of in-
While I join the opinion of the Court,
tentional segregation in the core city
I agree with my Brother POWELL that
schools raised by the finding of inten-
there is, for the purposes of the Equal [215
tional segregation in the Park Hill
Protection Clause of the Fourteenth
schools. There, the Board's burden is to
Amendment as applied to the school cas-
show that its policies and practices with
es, no difference between de facto and
respect to schoolsite location, school
de jure segregation. The school board
size, school renovations and additions,
is a state agency and the lines that it
student-attendance zones, student as-
draws, the locations it selects for school
signment and transfer options, mobile
sites, the allocation it makes of students,
classroom units, transportation of stu-
the budgets it prepares are state action
214 dents, assignment of faculty and staff,
for Fourteenth Amendment purposes.
etc., considered together and premised
As Judge Wisdom cogently stated in
on the Board's so-called "neighborhood
United States V. Texas Education Agen-
18. We therefore do not reach, and intimate
decreed
the only feasible and
no view upon, the merits of the holding
constitutionally acceptable program
of the District Court, premised upon its
is a system of desegregation and
erroneous finding that the situation "is
integration which provides compensatory
more like de facto segregation," 313 F.
education in an integrated environment."
Supp., at 73, that nevertheless, although
Id., at 96.
all-out desegregation "could not be
413 U.S. 217 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2701
Cite as 93 S.Ct. 2686 (1973)
cy, 467 F.2d 848, segregated schools are
the constitutional sense because the
often created, not by dual school systems
force of law is placed behind those cove-
decreed by the legislature, but by the
nants.
administration of school districts by
There is state action in the constitu-
school boards. Each is state action
tional sense when public funds are dis-
within the meaning of the Fourteenth
persed by urban development agencies to
Amendment. "Here school authorities
build racial ghettoes.
assigned students, faculty, and profes-
sional staff; employed faculty and staff;
Where the school district is racially
chose sites for schools; constructed new
mixed and the races are segregated in
schools and renovated old ones; and
separate schools, where black teachers
drew attendance zone lines. The natural
are assigned almost exclusively to black
and foreseeable consequence of these ac-
schools where the school board closed ex-
tions was segregation of Mexican-Ameri-
isting schools located in fringe areas and
cans. Affirmative action to the con-
built new schools in black areas and in
trary would have resulted in desegrega-
distant white areas, where the school
tion. When school authorities, by their
board continued the "neighborhood"
actions, contribute to segregation in ed-
school policy at the elementary level,
ucation, whether by causing additional
these actions constitute state action.
segregation or maintaining existing seg-
They are of a kind quite distinct from
regation, they deny to the students equal
the classical de jure type of school seg-
protection of the laws.
regation. Yet calling them de facto is a
misnomer, as they are only more subtle
"We need not define the quantity of
types of state action that create or
state participation which is a prerequi-
maintain a wholly or partially segregat-
site to a finding of constitutional viola-
ed school system. See Kelly V. Guinn, 9
tion. Like the legal concepts of 'the rea-
Cir., 456 F.2d 100.
sonable man', 'due care', 'causation', 'pre-
ponderance of the evidence', and 'beyond
When a State forces, aids, or abets, or
a reasonable doubt', the necessary de-
helps create a racial "neighborhood," it
gree of state involvement is incapable of
is a travesty of justice to treat that
precise definition and must be defined
neighborhood as sacrosanct in the sense
on a case-by-case basis. Suffice it to
that its creation is free from the taint
say that school authorities here played a
of state action.
significant role in causing or perpetu-
The Constitution and Bill of Rights
ating unequal educational opportunities
have described the design of a pluralis-
for Mexican-Americans, and did SO on a
tic society. The individual has thefright
1217
system-wide basis." Id., at 863-864
to seek such companions as he desires.
1216 These latter acts are often said to cre-
But a State is barred from creating by
ate de facto as contrasted with de jure
one device or another ghettoes that deter-
segregation. But, as Judge Wisdom ob-
mine the school one is compelled to at-
tend.
serves, each is but another form of de
jure segregation.
Mr. Justice POWELL concurring in
I think it is time to state that there is
part and dissenting in part.
no constitutional difference between de
jure and de facto segregation, for each
I concur in the remand of this case
is the product of state actions or poli-
for further proceedings in the District
cies. If a "neighborhood" or "geograph-
Court, but on grounds that differ from
ical" unit has been created along racial
those relied upon by the Court.
lines by reason of the play of restrictive
This is the first school desegregation
covenants that restrict certain areas to
case to reach this Court which involves a
"the elite," leaving the "undesirables" to
major city outside the South. It comes
move elsewhere, there is state action in
from Denver, Colorado, a city and a
2702
93 SUPREME COURT REPORTER
413 U.S. 217
State which have not operated public
where the Anglo population largely re-
schools under constitutional or statutory
sides, the schools are predominantly
provisions which mandated or permitted
Anglo, if not entirely so.
racial segregation.1 Nor has it been
The situation in Denver is generally
argued that any other legislative actions
comparable to that in other large cities
(such as zoning and housing laws) con-
across the country in which there is a
tributed to the segregation which is at
substantial minority population and
issue.2 The Court has inquired only to
where desegregation has not been or-
what extent the Denver public school au-
dered by the federal courts. There is
thorities may have contributed to the
segregation in the schools of many of
school segregation which is acknowl-
these cities fully as pervasive as that in
edged to exist in Denver.
southern cities prior to the desegrega-
The predominantly minority schools
tion decrees of the past decade and a
are located in two areas of the city re-
half. The focus of the school desegrega-
ferred to as Park Hill and the core city
tion problem has now shifted from the
area. The District Court considered
South to the country as a whole. Un-
[218 that a school with a concentration of
willing and footdragging as the process
70% to 75% "Negro or Hispano stu-
was in most places, substantial progress
dents" was identifiable as a segregated
toward achieving integration has been
school. 313 F.Supp. 61, 77. Wherever
made in Southern States.³ No compara-
one may draw this line, it is undisputed
ble progress has been made in many
that most of the schools in these two
nonsouthern cities with large minority
areas are in fact heavily segregated in
populations 4 primarily because of the de
the sense that their student bodies are
facto/de jure distinction nurtured by
1219
overwhelmingly composed of non-Anglo
the courts and accepted complacently by
children. The city-wide school mix in
many of the same voices which de-
Denver is 66% Anglo, 14% Negro, and
nounced the evils of segregated schools
20% Hispano. In areas of the city
in the South.5 But if our national con-
1. Article IX, § 8, of the Colorado Con-
4. The 1971 HEW Enrollment Survey
stitution has expressly prohibited any
dramatized the segregated character of
"classification of pupils
on ac-
public school systems in many non-
count of race or color."
southern cities. The percentage of Negro
pupils which attended schools more than
2. See, e. g., Swann V. Charlotte-Mecklen-
80% black was 91.3 in Cleveland, Ohio;
burg Board of Education, 402 U.S. 1,
97.8 in Compton, California; 78.1 in
23, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554
Dayton, Ohio; 78.6 in Detroit, Michigan
(1971) :
95.7 in Gary, Indiana; 86.4 in Kansas
"We do not reach
the question
City, Missouri; 86.6 in Los Angeles, Cali-
whether a showing that school segregation
fornia; 78.8 in Milwaukee, Wisconsin
is a consequence of other types of state
91.3 in Newark, New Jersey; 89.8 in St.
action, without any discriminatory action
Louis, Missouri. The full data from the
by the school authorities, is a constitu-
Enrollment Survey may be found in 118
tional violation requiring remedial action
Cong.Rec. 563-566 (1972).
by a school desegregation decree." The
term "state action," as used herein, thus
5. As Senator Ribicoff recognized:
refers to actions of the appropriate public
"For years we have fought the battle of
school authorities.
integration primarily in the South where
the problem was severe. It was a long,
3. According to the 1971 Department of
Health, Education, and Welfare (HEW)
arduous fight that deserved to be fought
estimate, 43.9% of Negro pupils attended
and needed to be won.
majority white schools in the South as
"Unfortunately, as the problem of racial
opposed to only 27.8% who attended such
isolation has moved north of the Mason-
schools in the North and West. Fifty-
Dixon line, many northerners have bid an
seven percent of all Negro pupils in the
evasive farewell to the 100-year struggle
North and West attend schools with over
for racial equality. Our motto seems to
80% minority population as opposed to
32.2% who do so in the South. 118 Cong.
Rec. 564 (1972).
413 U.S. 221
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2703
Cite as 93 S.Ct. 2686 (1973)
cern is for those who attend such
essentially negative: It was impermissi-
schools, rather than for perpetuating a
ble under the Constitution for the
legalism rooted in history rather than
States, or their instrumentalities to
present reality, we must recognize that
force children to attend segregated
the evil of operating separate schools is
schools. The forbidden action was de
no less in Denver than in Atlanta.
jure, and the opinion in Brown I was
construed-for some years and by many
I
courts-as requiring only state neutrali-
In my view we should abandon a dis-
ty, allowing "freedom of choice" as to
tinction which long since has outlived its
schools to be attended SO long as the
time, and formulate constitutional prin-
State itself assured that the choice was
ciples of national rather than merely re-
genuinely free of official restraint.⁶
gional application. When Brown V.
But the doctrine of Brown I, as ampli-
Board of Education, 347 U.S. 483, 74 S.
fied by Brown II, 349 U.S. 294, 75 S.Ct.
Ct. 686, 98 L.Ed. 873 (1954) (Brown I),
753, 99 L.Ed. 1083 (1955), did not re-
220 was decided, the distinction between de
tain its original meaning. In a series of
jure and de facto segregation was con-
decisions extending from 1954 to 1971
sistent with the limited constitutional
the concept of state neutrality was 221
rationale of that case. The situation
transformed into the present constitu-
confronting the Court, largely confined
tional doctrine requiring affirmative
to the Southern States, was officially im-
state action to desegregate school sys-
posed racial segregation in the schools
tems.⁷ The keystone case was Green
extending back for many years and usu-
V. County School Board, 391 U.S. 430,
ally embodied in constitutional and stat-
437-438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d
utory provisions.
716 (1968), where school boards were de-
The great contribution of Brown I
clared to have "the affirmative duty to
was its holding in unmistakable terms
take whatever steps might be necessary
that the Fourteenth Amendment forbids
to convert to a unitary system in which
state-compelled or state-authorized seg-
racial discrimination would be eliminat-
regation of public schools. 347 U.S., at
ed root and branch." The school system
488, 493-495, 74 S.Ct. at 688, 691-692.
before the Court in Green was operating
Although some of the language was more
in a rural and sparsely settled county
expansive, the holding in Brown I was
where there were no concentrations of
have been 'Do to southerners what you
tion is not against segregation as such.
do not want to do to yourself.'
A state or a school district offends
"Good reasons have always been offered,
no constitutional requirement when it
of course, for not moving vigorously ahead
grants to all students uniformly an unre-
in the North as well as the South.
stricted freedom of choice as to schools
"First, it was that the problem was
attended, SO that each pupil, in effect, as-
worse in the South. Then the facts began
signs himself to the school he wishes to
to show that that was no longer true.
attend." The case was later vacated
"We then began to hear the de facto-de
and remanded by this Court, which ex-
jure refrain.
pressed no view on the merits of the de-
"Somehow residential segregation in the
segregation plans submitted. 382 U.S.
North was accidental or de facto and that
103, 105, 86 S.Ct. 224, 225, 15 L.Ed.2d
made it better than the legally supported
187 (1965). See also Bell V. School City
de jure segregation of the South. It was
of Gary, Ind., 324 F.2d 209 (CA7 1963) ;
a hard distinction for black children in
Downs V. Board of Education, 336 F.2d
totally segregated schools in the North to
988 (CA10 1964); Deal V. Cincinnati
understand, but it allowed us to avoid the
Board of Education, 369 F.2d 55 (CA6
problem." 118 Cong.Rec. 5455 (1972).
1966).
6. See, e. g., Bradley V. School Board, 345
7. For a concise history and commentary on
F.2d 310, 316 (CA4, 1965) (en banc) :
the evolution, see generally A. Bickel,
"It has been held again and again
The Supreme Court and the Idea of
that the Fourteenth Amendment prohibi-
Progress 126-130 (1970).
2704
93 SUPREME COURT REPORTER
413 U.S. 221
white and black populations, no neigh-
Despite this recognition of a fundamen-
borhood school system (there were only
tally different problem from that in-
two schools in the county), and none of
volved in Green, the Court nevertheless
the problems of an urbanized school
held that the affirmative-duty rule of
district.8 The Court properly identified
Green was applicable, and prescribed for
the freedom-of-choice program there as
a metropolitan school system with 107
a subterfuge, and the language in Green
schools and some 84,000 pupils essential-
imposing an affirmative duty to convert
ly the same remedy-elimination of seg-
to a unitary system was appropriate on
regation "root and branch"-which had
the facts before the Court. There was
been formulated for the two schools and
however reason to question to what ex-
1,300 pupils of New Kent County.
tent this duty would apply in the vastly
different factual setting of a large city
In Swann, the Court further noted it
with extensive areas of residential seg-
was concerned only with States having
regation, presenting problems and call-
"a long history of officially imposed
ing for solutions quite different from
segregation and the duty of school au-
those in the rural setting of New Kent
thorities in those States to implement
County, Virginia.
Brown 1. 402 U.S., at 5-6, 91 S.Ct., at
1271. In SO doing, the Court refrained
But the doubt as to whether the af-
from even considering whether the evo-
firmative-duty concept would flower into
lution of constitutional doctrine from
a new constitutional principle of general
Brown I to Green/Swann undercut
application was laid to rest by Swann V.
whatever logic once supported the de
Charlotte-Mecklenburg Board of Educa-
facto/de jure distinction. In imposing
tión, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.
on metropolitan southern school districts
2d 554 (1971), in which the duty artic-
222 ulated in Green was applied to thefurban
an affirmative duty, entailing large-
scale transportation of pupils, to elimi-
school system of metropolitan Charlotte,
North Carolina. In describing the resi-
nate segregation in the schools, the
Court required these districts to alle-
dential patterns in Charlotte, the Court
noted the "familiar phenomenon" in the
viate conditions which in large part did
metropolitan areas of minority groups
not result from historic, state-imposed
being "concentrated in one part of the
de jure segregation. Rather, the famil-
city," 402 U.S., at 25, 91 S.Ct., at 1280,
iar root cause of segregated schools in
and acknowledged that:
all the biracial metropolitan areas of our
country is essentially the same: one of
[223
"Rural areas accustomed for half a
segregated residential and migratory
century to the consolidated school sys-
patterns the impact of which on the ra-
tems implemented by bus transporta-
cial composition of the schools was often
tion could make adjustments more
perpetuated and rarely ameliorated by
readily than metropolitan areas with
action of public school authorities. This
dense and shifting population, numer-
is a national, not a southern, phenome-
ous schools, congested and complex
non. And it is largely unrelated to
traffic patterns." 402 U.S., at 14, 91
whether a particular State had or did
S.Ct., at 1275.
not have segregative school laws.9
8. See also the companion cases in Raney
"No elaborate analysis is necessary to
V. Board of Education, 391 U.S. 443, 88
conclude from these figures that a high
S.Ct. 1697, 20 L.Ed.2d 727 (1968), and
degree of residential segregation based on
Monroe v. Board of Commissioners, 391
race is a universal characteristic of Amer-
U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733
ican cities. This segregation is found in
(1968), neither of which involved large
the cities of the North and West as well
urban or metropolitan areas.
as of the South; in large cities as well as
small in nonindustrial cities as well as
9. As Dr. Karl Taeuber states in his article,
industrial; in cities with hundreds of
Residential Segregation, 213 Scientific
thousands of Negro residents as well as
American 12, 14 (Aug. 1965) :
those with only a few thousand, and in
413
U.S. 225 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2705
Cite as 93 S.Ct. 2686 (1973)
Whereas Brown I rightly decreed the the duly constituted public authorities (I
elimination of state-imposed segregation
will usually refer to them collectively as
in that particular section of the country
the "school board") are sufficiently
where it did exist, Swann imposed obli-
responsible 10 to warrant imposing upon
gations on southern school districts to
them a nationally applicable burden to
eliminate conditions which are not re-
demonstrate they nevertheless are oper-
gionally unique but are similar both in
ating a genuinely integregated school
origin and effect to conditions in the
system.
rest of the country. As the remedial ob-
ligations of Swann extend far beyond
A
the elimination of the outgrowths of the
state-imposed segregation outlawed in
The principal reason for abandon-
Brown, the rationale of Swann points in-
ment of the de jure/de facto distinction
evitably toward a uniform, constitution-
is that, in view of the evolution of the
al approach to our national problem of
holding in Brown I into the affirmative-
school segregation.
duty doctrine, the distinction no longer
can be justified on a principled basis.
In decreeing remedial requirements for
II
the Charlotte/Mecklenburg school dis-
The Court's decision today, while ad-
trict, Swann dealt with a metropolitan,
hering to the de jure/de facto distinc-
urbanized area in which the basicicauses
225
1224 tion, will require the application of the
of segregation were generally similar to
Green/Swann doctrine of "affirmative
those in all sections of the country, and
duty" to the Denver School Board de-
also largely irrelevant to the existence of
spite the absence of any history of
historic, state-imposed segregation at
state-mandated school segregation. The
the time of the Brown decision. Fur-
only evidence of a constitutional viola-
ther, the extension of the affirmative-
tion was found in various decisions of
duty concept to include compulsory stu-
the School Board. I concur in the
dent transportation went well beyond
Court's position that the public school
the mere remedying of that portion of
authorities are the responsible agency of
school segregation for which former
the State, and that if the affirmative-
state segregation laws were ever respon-
duty doctrine is sound constitutional law
sible. Moreover, as the Court's opinion
for Charlotte, it is equally so for Den-
today abundantly demonstrates, the
ver. I would not, however, perpetuate
facts deemed necessary to establish de
the de jure/de facto distinction nor
jure discrimination present problems of
would I leave to petitioners the initial
subjective intent which the courts can-
tortuous effort of identifying "segrega-
not fairly resolve.
tive acts" and deducing "segregative in-
At the outset, one must try to identify
tent." I would hold, quite simply, that
the constitutional right which is being
where segregated public schools exist
enforced. This is not easy, as the
within a school district to a substantial
precedents have been far from explicit.
degree, there is a prima facie case that
In Brown I, after emphasizing the im-
cities that are progressive in their em-
a substantial degree in the schools of a
ployment practices and civil rights poli-
particular district. It is recognized, of
cies as well as those that are not."
course, that this term is relative and pro-
In his book, Negroes in Cities (1965), Dr.
vides no precise standards. But circum-
Taeuber stated that residential segrega-
stances, demographic and otherwise, vary
tion exists "regardless of the character
from district to district and hard-and-fast
of local laws and policies, and regardless
rules should not be formulated. The
of the extent of other forms of segrega-
existence of a substantial percentage of
tion or discrimination." Id., at 36.
schools populated by students from one
10. A prima facie case of constitutional vio-
race only or predominantly so populated,
lation exists when segregation is found to
should trigger the inquiry.
93 S.Ct.-170
2706
93 SUPREME COURT REPORTER
413 U.S. 225
portance of education, the Court said
stitutional standards if the responsible
that:
authorities had taken appropriate steps
"Such an opportunity, where the state
to (i) integrate faculties and adminis-
has undertaken to provide it, is a
tration; (ii) scrupulously assure equali-
right which must be made available to
ty of facilities, instruction, and curricu-
all on equal terms." 347 U.S., at 493,
lum opportunities throughout the dis-
74 S.Ct. at 691.
trict; (iii) utilize their authority to
draw attendance zones to promote inte-
In Brown II, the Court identified the
gration; and (iv) locate new schools,
"fundamental principle" enunciated in
close old ones, and determine the size
Brown I as being the unconstitutionality
and grade categories with this same ob-
of "racial discrimination in public edu-
jective in mind. Where school authori-
cation," 349 U.S., at 298, 75 S.Ct., at 755,
ties decide to undertake the transporta-
and spoke of "the personal interest of
tion of students, this also must be with
the plaintiffs in admission to public
integrative opportunities in mind.
schools as soon as practicable on a non-
The foregoing prescription is not in-
discriminatory basis." 349 U.S., at 300,
tended to be either definitive or all-in-
75 S.Ct., at 756. Although this and simi-
clusive, but rather an indication of the
lar language is ambiguous as to the spe-
contour characteristics of an integrated
cific constitutional right, it means-as a
school system in which all citizens and
minimum-that one has the right not to
pupils may justifiably be confident that
be compelled by state action to attend a
racial discrimination is neither practiced
segregated school system. In the evolu-
nor tolerated. An integrated school sys-
tionary process since 1954, decisions of
tem does not mean-and indeed could
this Court have added a significant gloss
227
not mean in view of the residential pat-
to this original right. Although no-
terns of most of our major metropolitan
where expressly articulated in these
areas-that every school must in fact be
terms, I would now define it as the
an integrated unit. A school which hap-
right, derived from the Equal Protection
pens to be all or predominantly white
Clause to expect that once the State has
or all or predominantly black is not a
226 assumed responsibility for education, lo-
"segregated" school in an unconstitu-
cal school boards will operate integrated
tional sense if the system itself is a gen-
school systems within their respective
uinely integrated one.
districts. 11 This means that school au-
thorities, consistent with the generally
Having school boards operate an inte-
accepted educational goal of attaining
grated school system provides the best
quality education for all pupils, must
assurance of meeting the constitutional
make and implement their customary de-
requirement that racial discrimination,
cisions with a view toward enhancing in-
subtle or otherwise, will find no place in
tegrated school opportunities.
the decisions of public school officials.
Courts judging past school board actions
The term "integrated school system"
with a view to their general integrative
presupposes, of course, a total absence
effect will be best able to assure an ab-
of any laws, regulations, or policies sup-
sence of such discrimination while
portive of the type of "legalized" segre-
avoiding the murky, subjective judg-
gation condemned in Brown. A system
ments inherent in the Court's search for
would be integrated in accord with con-
"segregative intent." Any test resting
11. See discussion in Part III, infra, of the
operate an integrated school system before
remedial action which is appropriate to
a court may order desegregative steps by
accomplish desegregation where a court
way of remedy. These are two distinct
finds that a school board has failed to
steps which recognize the necessity of
operate an integrated school system with-
proving the constitutional violation before
in its district. Plaintiffs must, however,
desegregative remedial action can be
establish the failure of a school board to
ordered.
413 U.S. 229 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2707
Cite as 93 S.Ct. 2686 (1973)
on so nebulous and elusive an element as
ative duty to desegregate solely in those
a school board's segregative "intent"
States with state-imposed segregation at
provides inadequate assurance that mi-
the time of the Brown decision. The
nority children will not be short-changed
history of state-imposed segregation is
in the decisions of those entrusted with
more widespread in our country than the
the nondiscriminatory operation of our
de jure/de facto distinction has tradi-
public schools.
tionally cared to recognize. 12 As one
commentator has noted:
Public schools are creatures of the
"[T]he three court of appeals deci-
State, and whether the segregation is
sions denying a constitutional duty to
state-created or state-assisted or merely
abolish de facto segregation all arose
state-perpetuated should be irrelevant to
in cities-Cincinnati, Gary, and Kan-
constitutional principle. The school
sas City, Kansas-where racial segre-
board exercises pervasive and continuing
gation in schools was formerly man-
responsibility over the long-range plan-
dated by state or local law. [Deal V.
ning as well as the daily operations of
Cincinnati Board of Education, 369 F.
the public school system. It sets policies
2d 55 (CA6 1966), cert. denied, 389
on attendance zones, faculty employment
U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114
and assignments, school construction,
(1967) Downs V. Board of Education,
closings and consolidations, and myriad
336 F.2d 988 (CA10 1964), cert. de-
other matters. School board decisions
nied, 380 U.S. 914, 85 S.Ct. 898, 13 L.
obviously are not the sole cause of segre-
Ed.2d 800 (1965) ; Bell v. School City
gated school conditions. But if, after
of Gary, Ind., 324 F.2d 209 (CA7
such detailed and complete public super-
1963), cert. denied, 377 U.S. 924, 84
vision, substantial school segregation
S.Ct. 1223, 12 L.Ed.2d 216 (1964).]
still persists, the presumption is strong
Ohio discarded its statute in 1887, In-
that the school board, by its acts or
diana in 1949, and Kansas City not
omissions, is in some part responsible.
until the advent of Brown. If Negro
Where state action and supervision are
and white parents in Mississippi are
229
228 so pervasive and where, after years of
required to bus their children to dis-
such action, segregated schools continue
tant schools on the theory that the
to exist within the district to a substan-
consequences of past de jure segrega-
tial degree, this Court is justified in
tion cannot otherwise be dissipated,
finding a prima facie case of a constitu-
should not the same reasoning apply
tional violation. The burden then must
in Gary, Indiana, where no more than
fall on the school board to demonstrate
five years before Brown the same
it is operating an "integrated school sys-
practice existed with presumably the
tem."
same effects?" Goodman, De Facto
School Segregation: A Constitutional
It makes little sense to find prima fa-
and Empirical Analysis, 60 Calif.L.
cie violations and the consequent affirm-
Rev. 275, 297 (1972). 13
12. Indeed, if one goes back far enough, it
nonexhaustive research that no discrim-
is probable that all racial segregation,
inatory laws appeared on the books
wherever occurring and whether or not
at one time or another." Id. at 1315.
confined to the schools, has at some time
been supported or maintained by govern-
13. The author continues:
ment action. In Beckett V. School Board,
"True, the earlier the policy of segrega-
308 F.Supp. 1274, 1311-1315 (ED Va.
tion was abandoned the less danger there
1969), Judge Hoffman compiled a sum-
is that it continues to operate covertly, is
mary of past public segregative action
significantly responsible for present day
which included examples from a great
patterns of residential segregation, or has
majority of States. He concluded that
contributed materially to present com-
"[o]nly as to the states of Maine, New
munity attitudes toward Negro schools.
Hampshire, Vermont, Washington, Neva-
But there is no reason to suppose that
da, and Hawaii does it appear from this
1954 is a universally appropriate dividing
2708
93 SUPREME COURT REPORTER
413 U.S. 229
Not only does the de jure/de facto
Board of Education, 380 F.2d 385, 397
distinction operate inequitably on com-
(CA5 1967) (Gewin, J., dissenting). 14
munities in different sections of the
The Court today does move for the
country, more importantly, it disadvan-
tages minority children as well. As the
first time toward breaking down past
Fifth Circuit stated:
sectional disparities, but it clings ten-
uously to its distinction. It searches for
"The Negro children in Cleveland,
de jure action in what the Denver
Chicago, Los Angeles, Boston, New
School Board has done or failed to do,
York, or any other area of the nation
and even here the Court does not rely
which the opinion classifies under de
upon the results or effects of the
facto segregation, would receive little
Board's conduct but feels compelled to
comfort from the assertion that the
find segregative intent: 15
racial make-up of their school system
does not violate their constitutional
"We emphasize that the differentiat-
rights because they were born into a
ing factor between de jure segrega-
de facto society, while the exact same
tion and so-called de factofsegregation
231
racial make-up of the school system in
to which we referred in Swann is pur-
the 17 Southern and border states vio-
pose or intent to segregate." Supra,
|230
lates the constitutional rights of their
at 2697 (emphasis is the Court's).
counterparts, or even their blood
The Court's insistence that the "dif-
brothers, because they were born into
ferentiating factor" between de jure and
a de jure society. All children every-
de facto segregation be "purpose or in-
where in the nation are protected by
tent" is difficult to reconcile with the
the Constitution, and treatment which
language in SO recent a case as Wright
violates their constitutional rights in
V. Council of City of Emporia, 407 U.S.
one area of the country, also violates
451, 92 S.Ct. 2196, 33 L.Ed.2d 51
such constitutional rights in another
(1972). In holding there that "motiva-
area." Cisneros V. Corpus Christi In-
tion" is irrelevant, the Court said:
dependent School District, 467 F.2d
"In addition, an inquiry into the 'dom-
142, 148 (CA5 1972) (en banc), quot-
inant' motivation of school authorities
ing United States V. Jefferson County
is as irrelevant as it is fruitless. The
line between de jure segregation that may
that if such an intent is found with
safely be assumed to have spent itself and
respect to some schools in a system, the
that which may not. For many remedial
burden-normally on the plaintiffs—
purposes, adoption of an arbitrary but
shifts to the defendant school authorities
easily administrable cutoff point might
to prove a negative: namely, that their
not be objectionable. But in a situation
purposes were benign, supra, at 2697-
such as school desegregation, where both
2698.
the rights asserted and the remedial
The Court has come a long way since
burdens imposed are of such magnitude,
Brown I. Starting from the unassailable
and where the resulting sectional dis-
de jure ground of the discriminatory con-
crimination is passionately resented, it
stitutional and statutory provisions of
is surely questionable whether such
some States, the new formulation-still
arbitrariness is either politically or
professing fidelity to the de jure doctrine
morally acceptable."
-is that desegregation will be ordered
14. See Bickel, supra, n. 7, at 119:
despite the absence of any segregative
"If a Negro child perceives his separa-
laws if: (i) segregated schools in fact
tion as discriminatory and invidious, he
exist; (ii) a court finds that they result
is not, in a society a hundred years re-
from some action taken with segregative
moved from slavery, going to make fine
intent by the school board; (iii) such
distinctions about the source of a par-
action relates to any "meaningful seg-
ticular separation."
ment" of the school system and (iv) the
school board cannot prove that its in-
15. The Court today does not require, how-
tentions with respect to the remainder of
ever, a segregative intent with respect to
the system were nonsegregative.
the entire school system, and indeed holds
413 U.S. 233
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2709
Cite as 93 S.Ct. 2686 (1973)
mandate of Brown II was to desegre-
thousand jurors called in the past 25
gate schools, and we have said that
years. The result bespeaks discrimi-
'[t]he measure of any desegregation
nation, whether or not it was a con-
plan is its effectiveness.' Davis V.
scious decision on the part of any in-
School Commissioners of Mobile Coun-
dividual jury commissioner." Her-
ty, 402 U.S. 33, 37 [91 S.Ct. 1289,
nandez V. Texas, 347 U.S. 475, 482, 74
1292, 28 L.Ed.2d 577]. Thus, we have
S.Ct. 667, 672, 98 L.Ed. 866 (1954).
focused upon the effect-not the pur-
(Emphasis added.)
pose or motivation-of a school
board's action in determining whether
B
it is a permissible method of disman-
There is thus no reason as a matter of
tling a dual system.
constitutional principle to adhere to the
Though the purpose of the
de jure/de facto distinction in school de-
new school districts was found to be
segregation cases. In addition, there
discriminatory in many of these cases,
are reasons of policy and prudent judi-
the courts' holdings rested not on mo-
cial administration which point strongly
tivation or purpose, but on the effect
toward the adoption of a uniform na-
of the action upon the dismantling of
tional rule. The litigation heretofore
the dual school systems involved. That
centered in the South already is surfac-
was the focus of the District Court in
ing in other regions. The decision of
this case, and we hold that its ap-
the Court today, emphasizing as it does
proach was proper." 407 U.S., at 462,
the elusive element of segregative in-
92 S.Ct., at 2203.
tent, will invite numerous desegregation
suits in which there can be little hope of
I can discern no basis in law or logic for
uniformity of result.
holding that the motivation of school
board action is irrelevant in Virginia
The issue in these cases will not be
and controlling in Colorado. It may be
whether segregated education exists.
argued, of course, that in Emporia a
This will be conceded in most of them.
232 prior constitutional violation had already
The litigation will focus as a conse-
233
been proved and that this justifies the
quence of the Court's decision on wheth-
distinction. The net result of the
er segregation has resulted in any
Court's language, however, is the appli-
"meaningful or significant" portion of a
cation of an effect test to the actions of
school system from a school board's
southern school districts and an intent
"segregative intent." The intractable
test to those in other sections, at least
problems involved in litigating this issue
until an initial de jure finding for those
are obvious to any lawyer. The results
districts can be made. Rather than
of litigation-often arrived at subjec-
straining to perpetuate any such dual
tively by a court endeavoring to ascer-
standard, we should hold forthrightly
tain the subjective intent of school au-
that significant segregated school condi-
thorities with respect to action taken or
tions in any section of the country
not taken over many years-will be for-
are a prima facie violation of constitu-
tuitous, unpredictable and even capri-
tional rights. As the Court has noted
cious.
elsewhere:
The Denver situation is illustrative of
"Circumstances or chance may well
the problem. The court below found evi-
dictate that no persons in a certain
dence of de jure violations with respect
class will serve on a particular jury or
to the Park Hill schools and an absence
during some particular period. But it
of such violations with respect to the
taxes our credulity to say that mere
core city schools, despite the fact that
chance resulted in there being no mem-
actions taken by the shcool board with re-
bers of this class among the over six
gard to those two sections were not dis-
2710
93 SUPREME COURT REPORTER
413 U.S. 233
similar. It is, for example, quite possi-
of a school board and school administra-
ble to contend that both the construction
tion, and indeed every failure to act
of Manual High School in the core city
where affirmative action is indicated,
area and Barrett Elementary School in
must now be subject to scrutiny. The
the Park Hill area operated to serve their
most routine decisions with respect to
surrounding Negro communities and, in
the operation of schools, made almost
effect, to merge school attendance zones
daily, can affect in varying degrees the
with segregated residential patterns.
extent to which schools are initially seg-
See Brief for Petitioners 80-83. Yet
regated, remain in that condition, are
findings even on such similar acts will,
desegregated, or-for the long term fu-
under the de jure/de facto distinction,
ture-are likely to be one or the other.
continue to differ, especially since the
These decisions include action or nonac-
Court has never made clear what suf-
tion with respect to school building con-
fices to establish the requisite "segrega-
struction and location; the timing of
tive intent" for an initial constitutional
building new schools and their size; the
violation. Even if it were possible to
closing and consolidation of schools; the
clarify this question, wide and unpre-
drawing or gerrymandering of student 235
dictable differences of opinion among
attendance zones; the extent to which a
judges would be inevitable when dealing
neighborhood policy is enforced; the re-
with an issue as slippery as "intent" or
cruitment, promotion and assignment of
"purpose," especially when related to
faculty and supervisory personnel; poli-
hundreds of decisions made by school
cies with respect to transfers from one
authorities under varying conditions
school to another; whether, and to what
over many years.
extent, special schools will be provided,
This Court has recognized repeatedly
where they will be located, and who will
that it is "extremely difficult for a
qualify to attend them; the determina-
court to ascertain the motivation, or
tion of curriculum, including whether
collection of different motivations, that
there will be "tracks" that lead primari-
|234 lie behind a legislative enactment," Pal-
ly to college or to vocational training,
mer V. Thompson, 403 U.S. 217, 224, 91
and the routing of students into these
S.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971) ;
tracks; and even decisions as to social,
McGinnis V. Royster, 410 U.S. 263, 276-
recreational, and athletic policies.
277, 93 S.Ct. 1055, 1063, 35 L.Ed.2d 282
In Swann the Court did not have to
(1973); United States V. O'Brien, 391
probe into segregative intent and proxi-
U.S. 367, 381, 88 S.Ct. 1673, 1681, 20 L.
mate cause with respect to each of these
Ed.2d 672 (1968). Whatever difficul-
"endless" factors. The basis for its de
ties exist with regard to a single statute
jure finding there was rooted primarily
will be compounded in a judicial review
in the prior history of the desegregation
of years of administration of a large
suit. 402 U.S., at 5-6, 91 S.Ct., at 1271.
and complex school system. 16 Every act
But in a case of the present type, where
16. As one commentator has expressed it:
stituents, many of whom they knew to be
"If the courts are indeed prepared to
so? If such cases are classified as un-
inquire into motive, thorny questions will
constitutional de jure segregation, there
arise even if one assumes that racial
is little point in preserving the de jure-de
motivation is capable of being proven at
facto distinction at all. And it may well
trial. What of the case in which one or
be that the difference between any of
more members of a school board, but less
these situations and one in which racial
than a majority, are found to have acted
motivation is altogether lacking is too in-
on racial grounds? What if it appears
significant, from the standpoint of both
that the school board's action was
the moral culpability of the state officials
prompted by a mixture of motives, in-
and the impact upon the children in-
cluding constitutionally innocent ones
volved, to support a difference in con-
that alone would have prompted the board
stitutional treatment." Goodman, De
to act? What if the members of the
Facto School Segregation: A Constitu-
school board were not themselves racially
tional and Empirical Analysis, 60 Calif.L.
inspired but wished to please their con-
Rev. 275, 284-285 (1972).
413 U.S. 237 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2711
Cite as 93 S.Ct. 26S6 (1973)
no such history exists, a judicial exami- tion. It is this policy which must be
nation of these factors will be required
applied consistently on a national basis
under today's decision. This will lead
without regard to a doctrinal distinction
inevitably to uneven and unpredictable
which has outlived its time.
results, to protracted and inconclusive
litigation, to added burdens on the fed-
III
eral courts, and to serious disruption of
individual school systems. In the ab-
The preceding section addresses the
sence of national and objective stand-
constitutional obligation of public au-
ards, school boards and administrators
thorities in the school districts through-
will remain in a state of uncertainty and
out our country to operate integrated
disarray, speculating as to what is re-
school systems. When the schools of a
quired and when litigation will strike.
particular district are found to be sub-
stantially segregated, there is a prima
C
facie case that this obligation has not
been met. The burden then shifts to the
Rather than continue to prop up a dis-
school authorities to demonstrate that
tinction no longer grounded in principle,
they have in fact operated an integrated
and contributing to the consequences in-
system as this term is defined supra, at
dicated above, we should acknowledge
2706-2707. If there is a failure success-
that whenever public school segregation
fully to rebut the prima facie case, the
question then becomes what reasonable
exists to a substantial degree there is
affirmative desegregative steps district
prima facie evidence of a constitutional
courts may require to place the school
237
violation by the responsible school board.
system in compliance with the constitu-
It is true, of course, that segregated
tional standard. In short, what specifi-
schools-wherever located--are not sole-
cally is the nature and scope of the
236 ly the product of the action orginaction
remedy?
of public school authorities. Indeed, as
indicated earlier, there can be little
As the Court's opinion virtually com-
doubt that principal causes of the perva-
pels the finding on remand that Denver
sive school segregation found in the ma-
has a "dual school system," that city will
jor urban areas of this country, wheth-
then be under an "affirmative duty" to
er in the North, West, or South, are the
desegregate its entire system "root and
socio-economic influences which have
branch." Green V. County School Board,
concentrated our minority citizens in the
391 U.S., at 437-438, 88 S.Ct., at 1694.
inner cities while the more mobile white
Again, the critical question is, what
majority disperse to the suburbs. But
ought this constitutional duty to entail?
it is also true that public school boards
have continuing, detailed responsibility
A
for the public school system within their
district and, as Judge John Minor Wis-
The controlling case is Swann, supra,
dom has noted, "[w]hen the figures
and the question which will confront and
[showing segregation in the schools]
confound the District Court and Denver
speak so eloquently, a prima facie case
School Board is what, indeed, does
of discrimination is established." Unit-
Swann require? Swann purported to
ed States V. Texas Education Agency,
enunciate no new principles, relying
heavily on Brown I and II and on Green.
467 F.2d 848, 873 (CA5 1972) (en banc).
Yet it affirmed a district court order
Moreover, as foreshadowed in Swann
which had relied heavily on "racial ra-
and as implicitly held today, school
tios" and sanctioned transportation of
boards have a duty to minimize and ame-
elementary as well as secondary pupils.
liorate segregated conditions by pursu-
Lower federal courts have often read
ing an affirmative policy of desegrega-
Swann as requiring far-reaching trans-
2712
93 SUPREME COURT REPORTER
413 U.S. 237
portation decrees 17 "to achieve the
more readily to this task than those in
238 greatest possible degree of actualideseg-
metropolitan districts "with dense and
regation." 402 U.S., at 26, 91 S.Ct., at
shifting population, numerous schools,
1281. In the context of a large urban
congested and complex traffic patterns."
area, with heavy residential concentra-
Id., at 14, 91 S.Ct., at 1275. Although
tions of white and black citizens in dif-
the use of pupil transportation was ap-
ferent-and widely separated-sections
proved as a remedial device, transporta-
of the school district, extensive disper-
tion orders are suspect "when the time
sal and transportation of pupils is inev-
or distance of travel is SO greatias to ei-
1239
itable if Swann is read as expansively as
ther risk the health of the children or
many courts have been reading it to
significantly impinge on the educational
date.
process." Id., at 30-31, 91 S.Ct., at 1283.
To the extent that Swann may be
Finally, the age of the pupils to be
thought to require large-scale or long-
transported was recognized by the Court
distance transportation of students in
in Swann as one important limitation on
our metropolitan school districts, I
the time of student travel. Id., at 31,
record my profound misgivings. Noth-
91 S.Ct., at 1283.
ing in our Constitution commands or en-
These factors were supposed to help
courages any such court-compelled dis-
guide district courts in framing equita-
ruption of public education. It may be
ble remedies in school desegregation
more accurate to view Swann as having
cases. 18 And the Court further empha-
laid down a broad rule of reason under
sized that equitable decrees are inherent-
which desegregation remedies must re-
ly sensitive, not solely to the degree of
main flexible and other values and inter-
desegregation to be achieved, but to a
ests be considered. Thus the Court rec-
variety of other public and private inter-
ognized that school authorities, not the
ests:
federal judiciary, must be charged in
"[A] school desegregation case does
the first instance with the task of deseg-
not differ fundamentally from other
regating local school systems. Id., at
cases involving the framing of equi-
16, 91 S.Ct., at 1276. It noted that
table remedies to repair the denial of
school boards in rural areas can adjust
a constitutional right. The task is
17. See, e. g., Thompson V. School Board of
61,530 children respectively, for undeter-
Newport News, 465 F.2d 83, 87 (1972),
mined lengths of time. Id., at 895-986.
where the Fourth Circuit en banc upheld
Petitioners before this Court in Potts V.
a district court assignment plan where
Flax, cert. denied, 409 U.S. 1007, 93 S.Ct.
"travel time, varying from a minimum of
433, 34 L.Ed.2d 299 (1972), contended
forty minutes and a maximum of one
that the implementation of the Fifth Cir-
hour, each way, would be required for
cuit's directive in Flax V. Potts, 464 F.2d
busing black students out of the old City
865 (1972), would require bus rides of up
and white students into the old City in
to two hours and 20 minutes each day
order to achieve a racial balancing of the
and a round trip of up to 70 miles. Pet.
district." This transportation was decreed
for Cert. 14. While respondents contend-
for children from the third grade up, in-
ed these figures represent an "astounding
volving children as young as eight years
inflation," Brief in Opposition 7, trans-
of age.
portation of a significant magnitude
In Northeross V. Board of Education of
seems inevitable.
Memphis City Schools, 466 F.2d 890, 895
(1972), the Sixth Circuit affirmed a dis-
18. See United States V. Texas Education
trict court assignment plan which daily
Agency, 467 F.2d 848, 883 (CA5 1972)
transported 14,000 children with "the
(Bell, J., concurring in an opinion in
maximum time to be spent on the buses
which seven other judges joined)
by any child [being] 34 minutes
"In our view the remedy which the dis-
presumably each way. But as Judge
trict court is required to formulate should
Weick noted in dissent the Sixth Circuit
be formulated within the entire context
instructed the district judge to implement
of the opinion in Swann V. Charlotte-
yet further desegregation orders. Plans
Mecklenburg Board of Education
presently under consideration by that
(Emphasis added.)
court call for the busing of 39,085 and
413 U.S. 241
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2713
Cite as 93 S.Ct. 2686 (1973)
to correct, by a balancing of the indi-
en effectively without damaging state
vidual and collective interests, the con-
and parental interests in having children
dition that offends the Constitution.
attend schools within a resonable vicini-
Id., at 15-16, 91 S.Ct., at 1276.
ty of home. Where desegregative steps
Those words echoed a similar expres-
are possible within the framework of a
sion in Brown II, 349 U.S., at 300, 75 S.
system of "neighborhood education,"
Ct., at 756:
school authorities must pursue them.
For example, boundaries of neighbor-
"In fashioning and effectuating the
hood attendance zones should be drawn
decrees, the courts will be guided by
to integrate to the extent practicable,
equitable principles. Traditionally,
the school's student body. Construction
equity has been characterized by a
of new schools should be of such a size
practical flexibility in shaping its
241
and at such a location as to encourage
remedies and by a facility for adjust-
the likelihood of integration, Swann, su-
ing and reconciling public and private
pra, 402 U.S., at 21, 91 S.Ct., at 1278.
needs."
Faculty integration should be attained
Thus, in school desegration cases, as
throughout the school system, id., at 19,
elsewhere, equity counsels reason, flexi-
91 S.Ct. at 1277; United States V. Mont-
240 bility, and balance. See e. g. Lemon[v.
gomery County Board of Education, 395
Kurtzman, 411 U.S. 192, 93 S.Ct. 1463,
U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263
36 L.Ed.2d 151 (1973). I am aware, of
(1969). An optional majority-to-minori-
course, that reasonableness in any area
ty transfer program, with the State pro-
is a relative and subjective concept.
viding free transportation to desiring
But with school desegregation, reason-
students, is also a helpful adjunct to a
ableness would seem to embody a bal-
desegregated school system. Swann, su-
anced evaluation of the obligation of
pra, 402 U.S., at 26-27, 91 S.Ct., at 1281-
public school boards to promote desegre-
1282. It hardly need be repeated that
gation with other, equally important ed-
allocation of resources within the school
ucational interests which a community
district must be made with scrupulous
may legitimately assert. Neglect of ei-
fairness among all schools.
ther the obligation or the interests de-
stroys the even-handed spirit with which
The above examples are meant to be
equitable remedies must be approach-
illustrative, not exhaustive. The point
ed.¹⁹ Overzealousness in pursuit of any
is that the overall integrative impact of
such school board decisions must be as-
single goal is untrue to the tradition of
equity and to the "balance" and "flexi-
sessed by district courts in deciding
bility" which this Court has always re-
whether the duty to desegregate has
spected.
been met. For example, "neighborhood
school plans are constitutionally suspect
B
when attendance zones are superficially
Where school authorities have default-
imposed upon racially defined neighbor-
ed in their duty to operate an integrated
hoods, and when school construction pre-
school system, district courts must in-
serves rather than eliminates the racial
sure that affirmative desegregative
homogeny [sic] of given schools." 20
steps ensue. Many of these can be tak-
Keyes V. School District No. 1, Denver
19. The relevant inquiry is "whether the
education, or involves a genuiue element
costs of achieving desegregation in any
of danger to the safety of the child."
given situation outweigh the legal, moral,
Comment, School Desegregation After
and educational considerations favoring
Swann: A Theory of Government Re-
it.
It is clear
that
sponsibility, 39 U.Chi.L.Rec. 421, 422, 443
the Constitution should not be held to re-
(1972).
quire any transportation plan that keeps
children on a bus for a substantial part
20. A nseful study of the historical uses and
of the day, consumes significant portions
abuses of the neighborhood school concept
of funds otherwise spendable directly on
is M. Weinberg, Race & Place (1967).
S.Ct.-1701/2
2714
93 SUPREME COURT REPORTER
413 U.S. 241
Colorado, 445 F.2d 990, 1005 (CA10
important community aspirations and
1971). See United States V. Board of
personal rights. Such a requirement is
Education of Tulsa County, 429 F.2d
also likely to divert attention and re-
1253, 1258-1259 (CA10 1970). This
sources from the foremost goal of any
does not imply that decisions on faculty
school system: the best quality educa-
assignment, attendance zones, school con-
tion for all pupils. The Equal Protec-
struction, closing and consolidation, must
tion Clause does, indeed, command that
be made to the detriment of all neutral,
racial discrimination not be tolerated in
nonracial considerations. But these con-
the decisions of public school authori-
siderations can, with proper school board
ties. But it does not require that school
initiative, generally be met in a manner
authorities undertake widespread stu-
that will enhance the degree of school
dent transportation solely for the sake
desegregation.
of maximizing integration.
C
This obviously does not mean that bus
1243
transportation has no place in public
Defaulting school authorities would
school systems or is not a permissible
have, at a minimum, the obligation to
means in the desegregative process.
1242 take affirmative steps of the sort 1out-
The transporting of school children is as
lined in the above section. School
old as public education, and in rural and
boards would, of course, be free to devel-
some suburban settings it is as indispen-
op and initiate further plans to promote
sable as the providing of books. It is
school desegregation. In a pluralistic
presently estimated that approximately
society such as ours, it is essential that
half of all American children ride buses
no racial minority feel demeaned or dis-
to school for reasons unrelated to
criminated against and that students of
integration. At the secondary level in
all races learn to play, work, and cooper-
particular, where the schools are larger
ate with one another in their common
and serve a wider, more dispersed con-
pursuits and endeavors. Nothing in this
stituency than elementary schools, some
opinion is meant to discourage school
form of public or privately financ-
boards from exceeding minimal constitu-
ed transportation is often necessary.
tional standards in promoting the values
There is a significant difference, how-
of an integrated school experience.
ever, in transportation plans voluntarily
A constitutional requirement of exten-
initiated by local school boards for edu-
sive student transportation solely to
cational purposes and those imposed by
achieve integration presents a vastly
a federal court. The former usually
more complex problem. It promises, on
represent a necessary or convenient
the one hand, a greater degree of actual
means of access to the school nearest
desegregation, while it infringes on
home; the latter often require lengthy
what may fairly be regarded as other
trips for no purpose other than to fur-
21. In fact, due to racially separate resi-
ing of the environment involving economic
dential patterns that characterize our
and social policy on the broadest con-
major urban areas it is quite unrealistic
ceivable front might have an appreciable
to think of achieving in many cities sub-
impact." Bickel, supra, n. 7, at 132.
stantial integration throughout the school
district without a degree of student trans-
22. Estimates vary. Swann, 402 U.S., at
portation which would have the gravest
29, 91 S.Ct. at 1882, noted that "[e]ight-
economic and educational consequences.
een million of the Nation's public school
As Professor Bickel notes:
children, approximately 39%, were trans-
"In most of the larger urban areas,
ported to their schools by bus in 1969-
1970 in all parts of the country." Sen-
demographic conditions are such that no
ator Ribicoff, a thoughtful student of this
policy that a court can order, and a school
problem, stated that '[t]wo-thirds of all
board, a city, or even a state has the
American children today ride buses to
capability to put into effect, will in fact
schools for reasons unrelated to integra-
result in the foresecable future in racially
tion," 118 Cong.Rec. 5456 (1972).
balanced public schools. Only a reorder-
413 U.S. 245
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2715
Cite as 93 S.Ct. 2686 (1973)
1244
ther
integration.
Yet
the
Court
in
and disruptive transportation. The re-
Swann was unquestionably right in de-
fusal of the Court in Swann to require
scribing bus transportation as "one tool
racial balance in schools throughout the
of school desegregation." 402 U.S., at 30,
district or the arbitrary elimination of
91 S.Ct., at 1283.2 The crucial issue
all "one-race schools," id., at 26, 91
is when, under what circumstances, and
S.Ct., at 1281, is grounded in a recogni-
to what extent such transportation may
tion that[the State, parents, and children 1245
appropriately be ordered. The answer
all have at stake in school desegregation
to this turns-as it does SO often in the
decrees, legitimate and recognizable in-
law-upon a sound exercise of discretion
terests.
under the circumstances.
The personal interest might be charac-
Swann itself recognized limits to de-
terized as the desire that children attend
segregative obligations. It noted that a
community schools near home. Dr.
constitutional requirement of "any par-
James Coleman testified for petitioners
ticular degree of racial balance or mix-
at trial that "most school systems organ-
ing
would be disapproved
ize their schools in relation to the resi-
and sanctioned district court
dents by having fixed school districts
use of mathematical ratios as "no more
and some of these are very ethnically
than a starting point in the process of
homogeneous." App. 1549a. In Deal V.
shaping a remedy
Id.,
at
Cincinnati Board of Education, 369 F.2d,
24, 25, 91 S.Ct., at 1280, 1281. Thus,
at 60, the Sixth Circuit summarized the
particular schools may be all white or all
advantages of such a neighborhood sys-
black and still not infringe constitution-
tem of schools: 25
al rights if the system is genuinely inte-
grated and school authorities are pursu-
"Appellants, however, pose the ques-
ing integrative steps short of extensive
tion of whether the neighborhood sys-
23. Historically, distant transportation was
Board of Education of Memphis City
wrongly used to promote segregation.
Schools, 444 F.2d 1179, 1182-1183 (CA6
"Negro children were generally considered
1971); Davis v. Board of Education of
capable of traveling longer distances to
North Little Rock, 328 F.Supp. 1197,
school and without the aid of any vehicle.
1203 (ED Ark.1971). Where a school
What was too far for a white child
board is voluntarily engaged in transport-
became reasonably near for a Negro
ing students, a district court is, of course,
child," Weinberg, supra, n. 20, at 87.
obligated to insure that such transporta-
This deplorable history has led some to
tion is not undertaken with segregative
argue that integrative bus rides are justi-
effect. Where, also, voluntary transpor-
fied as atonement for past segregative
tation programs are already in progress,
trips and that neighborhood education is
there may be greater justification for
now but a code word for racial segrega-
court-ordered transportation of students
tion. But misuse of transportation in the
for a comparable time and distance to
past does not imply neighborhood school-
achieve greater integration.
ing has no valid nonsegregative uses for
the present. Nor would wrongful trans-
25. The term "neighborhood school" should
portation in the past justify detrimental
not be supposed to denote solely a walk-
transportation for the children of today.
in school or one which serves children
only in the surrounding blocks. The
24. Some communities had transportation
Court has noted, in a different context,
plans in effect at the time of court de-
that "[t]he word 'neighborhood' is quite
segregation orders. See Swann, supra, at
as susceptible of variation as the word
29 n. 11, 91 S.Ct. at 1282; Davis V.
'locality.' Both terms are elastic and,
Board of School Commissioners of Mobile
dependent upon circumstances, may be
County, 402 U.S. 33, 34-35, 91 S.Ct. 1289,
equally satisfied by areas measured by
1290-1291, 28 L.Ed.2d 577 (1971). Courts
rods or by miles." Connally V. General
have used the presence or absence of
Construction Co., 269 U.S. 385, 395, 46
existing transportation in a district as
S.Ct. 126, 129, 70 L.Ed. 322 (1926). In
one factor in framing and implementing
the school context, "neighborhood" refers
desegregation decrees. United States V.
to relative proximity, to a preference for
Watson Chapel School District, 440 F.2d
a school nearer to, rather than more dis-
933, 937 (CA8 1971) ; Northcross V.
tant from, home.
2716
93 SUPREME COURT REPORTER
413 U.S. 245
tem of pupil placement, fairly admin-
the name of constitutional law what may
istered without racial bias, comports
seem to many a dissolution in the tradi-
with the requirements of equal oppor-
tional, more personal fabric of their
tunity if it nevertheless results in the
public schools.
creation of schools with predominantly
Closely related to the concept of a
or even exclusively Negro pupils. The
community and neighborhood education,
neighborhood system is in wide use
are those rights and duties parents have
throughout the nation and has been
with respect to the education of their
for many years the basis of school ad-
children. The law has long recognized
ministration. This is so because it is
the parental duty to nurture, support,
acknowledged to have several valuable
and provide for the welfare of children,
aspects which are an aid to education,
including their education. In Pierce V. 247
such as minimization of safety haz-
Society of Sisters, 268 U.S. 510, 534-
ards to children in reaching school,
535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 a
economy of cost in reducing transpor-
unanimous Court held that:
246
tation needs, ease of pupil placement
and administration through the use of
"Under the doctrine of Meyer V. Ne-
neutral, easily determined standards,
braska, 262 U.S. 390 [43 S.Ct. 625, 67
and better home-school communica-
L.Ed. 1042], we think it entirely plain
tion."
that the Act of 1922 unreasonably in-
terferes with the liberty of parents
The neighborhood school does provide
and guardians to direct the upbring-
greater ease of parental and student ac-
ing and education of children under
cess and convenience, as well as greater
their control.
The child is
economy of public administration.
not the mere creature of the State;
These are obvious and distinct advan-
those who nurture him and direct his
tages, but the legitimacy of the neigh-
destiny have the right, coupled with
borhood concept rests on more basic
the high duty, to recognize and pre-
grounds.26
pare him for additional obligations."
Neighborhood school systems, neutral-
And in Griswold V. Connecticut, 381
ly administered, reflect the deeply felt
U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.
desire of citizens for a sense of commu-
Ed.2d 510 (1965), the Court noted that
nity in their public education. Public
in Pierce, "the right to educate one's
schools have been a traditional source of
children as one chooses is made applica-
strength to our Nation, and that
ble to the States by the force of the
strength may derive in part from the
First and Fourteenth Amendments." I
identification of many schools with the
do not believe recognition of this right
personal features of the surrounding
can be confined solely to a parent's
neighborhood. Community support, in-
choice to send a child to public or pri-
terest, and dedication to public schools
vate school. Most parents cannot afford
may well run higher with a neighbor-
the luxury of a private education for
hood attendance pattern: distance may
their children, and the dual obligation of
encourage disinterest. Many citizens
private tuitions and public taxes. Those
sense today a decline in the intimacy of
who may for numerous reasons seek
our institutions-home, church, and
public education for their children
school-which has caused a concomitant
should not be forced to forfeit all inter-
decline in the unity and communal spirit
est or voice in the school their child at-
of our people. I pass no judgment on
tends. It would, of course, be impracti-
this viewpoint, but I do believe that this
cal to allow the wishes of particular par-
Court should be wary of compelling in
ents to be controlling. Yet the interest
26. I do not imply that the neighborhood
chosen it, federal judges should accord it
concept must be embodied in every school
respect in framing remedial decrees.
system. But where a school board has
413 U.S. 249
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2717
Cite as 93 S.Ct. 2686 (1973)
of the parent in the enhanced parent-
composition. Some districts with little
school and parent-child communication
or no biracial population will experience
allowed by the neighborhood unit ought
little or no educational disruption, while
not to be suppressed by force of law.
others, notably in large, biracial metro-
In the commendable national concern
politan areas, must at considerable ex-
for alleviating public school segregation,
pense undertake extensive transportation
courts may have overlooked the fact that
to achieve the type of integration fre-
the rights and interests of children af-
quently being ordered by district
courts. At a time when public educa-
fected by a desegregation program also
are entitled to consideration. Any child,
tion generally is suffering serious finan-
white or black, who is compelled to leave
cial malnutrition, the economic burdens
his neighborhood and spend significant
of such transportation can be severe, re-
1248 time each day being transported to a
quiring both initial capital outlays and
distant school suffers an impairment of
annual operating costs in the millions of
dollars.29 And while constitutional re-
his liberty and his privacy. Not long
ago, James B. Conant wrote that "[a]t
quirements havejoften occasioned uneven
1249
the elementary school level the issue
burdens, never have they touched SO sen-
sitive a matter as wide differences in
seems clear. To send young children
day after day to distant schools by bus
the compulsory transportation require-
seems out of the question."²⁷ A commu-
ments for literally hundreds of thou-
sands of school children.
nity may well conclude that the portion
of a child's day spent on a bus might be
The argument for student transporta-
used more creatively in a classroom,
tion also overlooks the fact that the rem-
playground, or in some other extracur-
edy exceeds that which may be necessary
ricular school activity. Decisions such
to redress the constitutional evil. Let
as these, affecting the quality of a child's
us use Denver as an example. The Den-
daily life, should not lightly be held con-
ver School Board, by its action and non-
stitutionally errant.
action, may be legally responsible for
Up to this point I have focused mainly
some of the segregation that exists.
on the personal interests of parents and
But if one assumes a maximum dis-
children which a community may believe
charge of constitutional duty by the
to be best protected by a neighborhood
Denver Board over the past decades, the
system of schools. But broader consid-
fundamental problem of residential seg-
erations lead me to question just as seri-
regation would persist. 30 It is, indeed, a
ously any remedial requirement of ex-
novel application of equitable power-
tensive student transportation solely to
not to mention a dubious extension of
further integration. Any such require-
constitutional doctrine-to require SO
ment is certain to fall disproportionately
much greater a degree of forced school
on the school districts of our country,
integration than would have resulted
depending on their degree of urbaniza-
from purely natural and neutral non-
tion, financial resources, and their racial
state causes.
27. Slums and Suburbs 29 (1961).
district court will require initial capital
investments of $3,924,000 and annual
28. See n. 21, supra.
operating costs of $1,783,490. The most
drastic transportation plan before the dis-
29. In Memphis, for example, which has no
trict court requires estimated annual
history of busing students, the minimum
operating costs of from $2,354,220,
transportation plan ordered by the courts
$2,431,710, or $3,463,100 depending on
will require, in the School Board's
the Board's transportation, arrangements.
estimate, an initial capital expenditure of
Northcross V. Board of Education of
$1,664,192 for buses plus an annual
Memphis City Schools, 466 F.2d at 898
operating cost of $629,192. The Board
(Weick, J., dissenting).
estimates that a more extensive trans-
portation program to be considered by the
30. See n. 9, supra.
2718
93 SUPREME COURT REPORTER
413 U.S. 249
The compulsory transportation of stu-
other public authorities, and students of
dents carries a further infirmity as a
public education for nearly two decades.
constitutional remedy. With most con-
The problem, especially since it has fo-
stitutional violations, the major burden
cused on the "busing issue," has pro-
of remedial action falls on offending
foundly disquieted the public wherever
state officials. Public officials who act
extensive transportation has been or-
to infringe personal rights of speech,
dered. I make no pretense of knowing
voting, or religious exercise, for exam-
the best answers. Yet, the issue in this
ple, are obliged to cease the offending
and like cases comes to this Court as one
act or practice and, where necessary, in-
of constitutional law. As to this issue, I
stitute corrective measures. It is they
have no doubt whatever. There is noth-
who bear the brunt of remedial action,
ing in the Constitution, its history, or-
though other citizens will to varying de-
until recently-in the jurisprudence of
1250 grees feel its effects. School authorities
this Court that mandates the employ-
responsible for segregation must, at the
ment of forced transportation of young
very minimum, discontinue segregative
and teenage children to achieve a single
acts. But when the obligation further
interest, as important as that interest
251
extends to the transportation of stu-
may be. We have strayed, quite far as I
dents, the full burden of the affirmative
view it, from the rationale of Brown I
remedial action is borne by children and
and II, as reiterated in Swann, that
parents who did not participate in any
courts in fashioning remedies must be
constitutional violation.
"guided by equitable principles" which
include the "adjusting and reconciling
Finally, courts in requiring SO far-
[of] public and private needs," Brown
reaching a remedy as student transpor-
II, 349 U.S., at 300, 75 S.Ct., at 756.
tation solely to maximize integration,
risk setting in motion unpredictable and
I urge a return to this rationale.
unmanageable social consequences. No
This would result, as emphasized above,
one can estimate the extent to which dis-
in no prohibition on court-ordered stu-
mantling neighborhood education will
dent transportation in furtherance of
hasten an exodus to private schools,
desegregation. But it would require
leaving public school systems the pre-
that the legitimate community inter-
serve of the disadvantaged of both races.
ests in neighborhood school systems
Or guess how much impetus such dis-
be accorded far greater respect. In the
mantlement gives the movement from
balancing of interests so appropriate to
inner city to suburb, and the further geo-
a fair and just equitable decree, trans-
graphical separation of the races. Nor
portation orders should be applied with
do we know to what degree this remedy
special caution to any proposal as disrup-
may cause deterioration of community
tive of family life and interests-and ul-
and parental support of public schools,
timately of education itself-as extensive
or divert attention from the paramount
transportation of elementary-age chil-
goal of quality in education to a peren-
dren solely for desegregation purposes.
nially divisive debate over who is to be
As a minimum, this Court should not re-
transported where.
quire school boards to engage in the un-
necessary transportation away from
The problem addressed in this opinion
their neighborhoods of elementary age
has perplexed courts, school officials,
children. 31 It is at this age level that
31. There may well be advantages in com-
2706-2707. But in the balancing of all
mencing the integrative experiences at an
relevant interests, the advantages of an
early age, as young children may be less
early integrative experience must, and in
likely than older children and adults to
all fairness should, be weighed against
develop an inhibiting racial consciousness.
other relevant advantages and disadvan-
These advantages should be considered as
tages and in light of the demographic
school boards make the various decisions
characteristics of the particular commun-
with the view to achieving and preserving
ity.
an integrated school system. Supra, at
413 U.S. 253
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2719
Cite as 93 S.Ct. 26S6 (1973)
neighborhood education performs its
have not contributed in some/measure to 253
most vital role. It is with respect to
the degree of segregation which still
children of tender years that the great-
prevails. Instead of recognizing the
est concern exists for their physical and
reality of similar multiple segregative
psychological health. It is also here,
causes in school districts throughout the
252 at the elementary school, that the rights
country, the Court persists in a distinc-
of parents and children are most sharp-
tion whose duality operates unfairly on
ly implicated.³²
local communities in one section of the
country and on minority children in the
IV
others.
The existing state of law has failed to
The second issue relates to the ambi-
shed light and provide guidance on the
guities of Swann and the judicial disre-
two issues addressed in this opinion:
gard of legitimate community and indi-
(i) whether a constitutional rule of uni-
vidual interests in framing equitable de-
form, national application should be
crees. In the absence of a more flexible
adopted with respect to our national
and reasonable standard than that im-
problem of school desegregation and (ii),
posed by district courts after Swann,
if so, whether the ambiguities of Swann
the desegregation which will now be de-
construed to date almost uniformly in
creed in Denver and other major cities
favor of extensive transportation, should
may well involve even more extensive
be redefined to restore a more viable
transportation than has been witnessed
balance among the various interests
up to this time.
which are involved. With all deference,
It is well to remember that the course
it seems to me that the Court today has
we are running is a long one and the
addressed neither of these issues in a
goal sought in the end-so often over-
way that will afford adequate guidance
looked-is the best possible educational
to the courts below in this case or lead
opportunity for all children. Communi-
to a rational, coherent national policy.
ties deserve the freedom and the incen-
The Court has chosen, rather, to ad-
tive to turn their attention and energies
here to the de facto/de jure distinction
to this goal of quality education, free
under circumstances, and upon a ration-
from protracted and debilitating battles
ale, which can only lead to increased and
over court-ordered student transporta-
inconclusive litigation, and-especially
tion. The single most disruptive ele-
regrettable-to deferment of a national-
ment in education today is the wide-
ly consistent judicial position on this
spread use of compulsory transportation,
subject. There is, of course, state ac-
especially at elementary grade levels.
tion in every school district in the land.
This has risked distracting and divert-
The public schools always have been
ing attention from basic educational
funded and operated by States and their
ends, dividing and embittering communi-
local subdivisions. It is true that segre-
ties, and exacerbating, rather than amel-
gated schools, even in the cities of the
iorating, interracial friction and misun-
South, are in large- part the product of
derstanding. It is time to return to a
social and economic factors-and the re-
more balanced evaluation of the recog-
sulting residential patterns. But there
nized interests of our society in achiev-
is also not a school district in the United
ing desegregation with other educational
States, with any significant minority
and societal interests a community may
school population, in which the school
legitimately assert. This will help as-
authorities-in one way or the other—
sure that integrated school systems will
32. While greater transportation of
respect. It would ultimately be wisest,
secondary school students might be per-
where there is no absence of good faith,
mitted, even at this level the desire of a
to permit affected communities to decide
community for racially neutral neighbor-
this delicate issue of student transporta-
hood schools should command judicial
tion on their own.
2720
93 SUPREME COURT REPORTER
413 U.S. 253
be established and maintained by ration-
prived of their constitutional right to
al action, will be better understood and
equal protection of the laws just as sure-
supported by parents and children of
ly as were the plaintiffs in Brown V.
both races, and will promote the endur-
Board of Education by the statutorily
ing qualities of an integrated society SO
required segregation in that case. But
essential to its genuine success.
the fact that invidious racial discrimina-
255
tion is prohibited by the Constitution in
[254 Mr. Justice REHNQUIST, dissenting.
the North as well as the South must not
be allowed to obscure the equally impor-
I
tant fact that the consequences of ma-
The Court notes at the outset of its
nipulative drawing of attendance zones
opinion the differences between the
in a school district the size of Denver
claims made by the plaintiffs in this
does not necessarily result in denial of
case and the classical "de jure" type of
equal protection to all minority students
claims made by plaintiffs in cases such
within that district. There are signifi-
as Brown V. Board of Education, 347 U.
cant differences between the proof
S. 483, 74 S.Ct. 686, 98 L.Ed. 873
which would support a claim such as that
(1954), and its progeny. I think the
alleged by plaintiffs in this case, and the
similarities and differences, not only in
total segregation required by statute
the claims, but in the nature of the con-
which existed in Brown.
stitutional violation, deserve somewhat
The Court's opinion obscures these
more attention than the Court gives
factual differences between the situation
them.
shown by the record to have existed in
In Brown, the Court held unconstitu-
Denver and the situations dealt with in
tional statutes then prevalent in South-
earlier school desegregation opinions of
ern and border States mandating that
the Court. The Court states, supra, at
Negro children and white children at-
2693, that "[w]e have never suggested
tend separate schools. Under such a
that plaintiffs in school desegregation
statute, of course, every child in the
cases must bear the burden of proving
school system is segregated by race, and
the elements of de jure segregation as to
there is no racial mixing whatever in
each and every school or each and every
the population of any particular school.
student within the school system. Rath-
er, we have held that where plaintiffs
It is conceded that the State of Colo-
prove that a current condition of segre-
rado and the city of Denver have never
gated schooling exists within a school
had a statute or ordinance of that de-
district where a dual system was com-
scription. The claim made by these
pelled or authorized by statute at the
plaintiffs, as described in the Court's
time of our decision in Brown V. Board
opinion, is that the School Board by "use
of Education, 347 U.S. 483, 74 S.Ct. 686,
of various techniques such as the manip-
98 L.Ed. 873 (1954) (Brown I), the
ulation of student attendance zones,
State automatically assumes an affirma-
schoolsite selection and a neighborhood
tive duty 'to effectuate a transition to
school policy" took race into account in
a racially nondiscriminatory school sys-
making school assignments in such a
tem,' Brown V. Board of Education, 349
way as to lessen that mixing of races
U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed.
which would have resulted from a racial-
1083 (1955) (Brown II)
"
ly neutral policy of school assignment. If
such claims are proved, those minority
That statement is, of course, correct in
students who as a result of such manip-
the Brown context, but in the Brown
ulative techniques are forced to attend
cases and later ones that have come be-
schools other than those that they would
fore the Court the situation which had
have attended had attendance zones been
invariably obtained at one time was a
neutrally drawn are undoubtedly de-
"dual" school system mandated by law,
413 U.S. 257
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2721
Cite as 93 S.Ct. 2686 (1973)
by a law which prohibited Negroes and
racial mixing in the schools was forbid-
whites from attending the same schools.
den by law.
Since under Brown such a law deprived
Underlying the Court's entire opinion
257
each Negro child of the equal protection
is its apparent thesis that a district
of the laws, there was no need to prove
judge is at least permitted to find that
1256 the elements of de jure segregation as
if a single attendance zone between two
to each and every school," since the law
individual schools in the large metropoli-
itself had required just that sort of
tan district is found by him to have
segregation.
been "gerrymandered," the school dis-
But in a school district the size of
trict is guilty of operating a "dual"
Denver's, it is quite conceivable that the
school system, and is apparently a candi-
School Board might have engaged in the
date for what is in practice, a federal re-
racial gerrymandering of the attendance
ceivership. Not only the language of
boundary between two particular schools
the Court in the opinion, but its reliance
in order to keep one largely Negro and
on the case of Green V. County School
Hispano, and the other largely Anglo, as
Board, 391 U.S. 430, 437-438, 88 S.Ct.
the District Court found to have been
1689, 1693-1694, 20 L.Ed.2d 716 (1968),
the fact in this case. Such action would
indicates that such would be the case.
have deprived affected minority students
It would therefore presumably be open
who were the victims of such gerryman-
to the District Court to require, inter
dering of their constitutional right to
alia, that pupils be transported great
equal protection of the laws. But if the
distances throughout the district to and
school board had been evenhanded in its
from schools whose attendance zones
drawing of the attendance lines for oth-
have not been gerrymandered. Yet, un-
er schools in the district, minority stu-
less the Equal Protection Clause of the
dents required to attend other schools
Fourteenth Amendment now be held to
within the district would have suffered
embody a principle of "taint," found in
no such deprivation. It certainly would
some primitive legal systems but dis-
not reflect normal English usage to de-
carded centuries ago in ours, such a re-
scribe the entire district as "segregated"
sult can only be described as the product
on such a state of facts, and it would be
of judicial fiat.
a quite unprecedented application of
Green, supra, represented a marked
principles of equitable relief to deter-
mine that if the gerrymandering of one
extension of the principles of Brown V.
Board of Education, supra. The Court
attendance zone were proved, particular
in Green said:
racial mixtures could be required by a
federal district court for every school in
"It is of course true that for the time
the district.
immediately after Brown II [349 U.S.
It is quite possible, of course, that a
294 [75 S.Ct. 753, 99 L.Ed. 1083]] the
school district purporting to adopt ra-
concern was with making an initial
cially neutral boundary zones might,
break in a long-established pattern of
with respect to every such zone, invidi-
excluding Negro children from schools
ously discriminate against minorities, SO
attended by white children.
as to produce substantially the same re-
Under Brown II that immediate goal
sult as was produced by the statutorily
was only the first step, however. The
decreed segregation involved in Brown.
transition to a unitary, nonracial sys-
If that were the case, the consequences
tem of public education was and is the
would necessarily have to be the same as
ultimate end to be brought about
"
were the consequences in Brown. But,
391 U.S., at 435-436, 88
in the absence of a statute requiring
S.Ct., at 1693.
segregation, there must necessarily be
"Brown II was a call for the dis-
the sort of factual inquiry which was
mantling of well-entrenched dual sys-
unnecessary in those jurisdictions where
tems tempered by an awareness that
93 S.Ct.-171
2722
93 SUPREME COURT REPORTER
413 U.S. 257
complex and multifaceted problems
core area schools was the result of dis-
[258
would arise which would require time
criminatory action on the part of the
and flexibility for a successful resolu-
school board. The District Court is said
tion. School boards such as the re-
to have "fractionated" the district, supra,
spondent then operating state-com-
at 2689, and to have "held that its find-
pelled dual systems were nevertheless
ing of intentional segregation in Park
clearly charged with the affirmative
Hill was not in any sense material to the
duty to take whatever steps might be
question of segregative intent in other
necessary to convert to a unitary sys-
areas of the city," ibid. It is difficult
tem in which racial discrimination
to know what the Court means by the
would be eliminated root and branch."
first of these references, and even more
Id., at 437-438, 88 S.Ct., at 1694.
difficult to justify the second in the
The drastic extension of Brown which
light of the District Court's opinion.
Green represented was barely, if at all,
If by "fractionating" the district, the
explicated in the latter opinion. To re-
Court means that the District Court
quire that a genuinely "dual" system be
treated together events that occurred
disestablished, in the sense that the as-
during the same time period, and that it
signment of a child to a particular
treated those events separately from
school is not made to depend on his race
events that occurred during another
is one thing. To require that school
time span this is undoubtedly correct.
boards affirmatively undertake to
This is the approach followed by most
achieve racial mixing in schools where
experienced and careful finders of fact.
such mixing is not achieved in sufficient
degree by neutrally drawn boundary
In commencing that part of its com-
lines is quite obviously something else.
prehensive opinion which dealt with the
The Court's own language in Green
"core area" schools, the District Court
makes it unmistakably clear that this
observed:
significant extension of Brown's prohi-
"The evidentiary as well as the legal
bition against discrimination, and the
approach to the remaining schools is
conversion of that prohibition into an
quite different from that which has
affirmative duty to integrate, was made
been outlined above. For one thing,
in the context of a school system which
the concentrations of minorities oc-
had for a number of years rigidly ex-
curred at an earlier date and, in some
cluded Negroes from attending the same
instances, prior to the Brown decision
schools as were attended by whites.
by the Supreme Court. Community
Whatever may be the soundness of that
attitudes were different, including the
decision in the context of a genuinely
attitudes of the School Board mem-
"dual" school system, where segregation
bers. Furthermore, the transitions
of the races had once been mandated by
were much more gradual and less per-
law, I can see no constitutional justifica-
ceptible than they were in the Park
tion for it in a situation such as that
Hill schools. 313 F.Supp. 61, 69.
which the record shows to have obtained
(Emphasis supplied.)
in Denver.
The District Court noted, in its opin-
ion of July 31, 1969, 303 F.Supp. 279,
II
the differentiation that the plaintiffs
The Court's opinion gives lip service
themselves had made between the so-
to the notion that the inquiry as to
called "Park Hill" schools and I the 1260
whether or not the Denver school dis-
"core area" schools. The plaintiffs had
trict was "segregated" is a factual one,
sought a preliminary injunction prohib-
1259 though it refersin various critical lan-
iting the school board from rescinding
guage to the District Court's refusal to
three resolutions which had been adopt-
find that minority concentrations in the
ed by a differently composed school
413 U.S. 262 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2723
Cite as 93 S.Ct. 2686 (1973)
board earlier in 1969 and which would
The allegedly discriminatory acts with
have redrawn school boundary lines in
respect to the "core area" schools-New
the Park Hill area to achieve greater in-
Manual High School, Cole Junior High
tegration. In its opinion granting that
School, Morey Junior High School, and
injunction, the District Court said:
Boulevard and Columbine Elementary
Schools-took place between the years
"Attention at this hearing has fo-
1952 and 1961. They took place, as indi-
cused primarily on the schools in
cated by the references to the District
northeast Denver, and particularly on
Court's opinion noted above, not in a
the area which is commonly called
context of a rapidly expanding Negro
Park Hill. The alleged segregated
population, but in a context of a rela-
schools, elementary and junior high
tively fixed area of the city that had for
schools in this area, have acquired
an indefinite period of time been pre-
their character as such during the past
dominantly Negro.
ten years. The primary reason for
this has been the migration of the
Thus, quite contrary to the intimation
Negro community eastward from a
of virtual arbitrariness contained in the
confined community surrounding what
Court's opinion, the District Court's sep-
is commonly called 'Five Points.' Be-
arate treatment of the claims respecting
fore 1950 the Negroes all lived in a
these two separate areas was absolutely
community bounded roughly by 20th
necessary if a careful factual determi-
Avenue on the south, 20th Street on
nation, rather than a jumbled hash of
the west, York Street on the east, and
unrelated events, was to emerge from
38th Avenue on the north. The schools
the fact-finding process. The "intent"
in this area were, and are now, largely
with which a public body performs an
Negro schools. However, we are not
official act is difficult enough to ascer-
presently concerned with the validity
tain under the most favorable circum-
of this condition. During this period
stances. See Palmer V. Thompson, 403
the Negro population was relatively
U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438
small, and this condition had developed
(1971) ; McGinnis V. Royster, 410 U.S.
over a long period of time. However,
263, 93 S.Ct. 1055, 35 L.Ed.2d 282
by 1960 and, indeed, at the present
(1973). Far greater difficulty is en-
time this population is sizeable. As
countered if we are to assess the in-
the population has expanded the move
tentions with which official acts of
has been to the east, first to Colorado
a school board are performed over a pe-
Boulevard, a natural dividing line, and
riod of years. Not only does the board
later beyond Colorado Boulevard, but
consist of a number of members, but the
within a narrow corridor-more or
membership customarily turns over as a
less fixed north-south boundaries.
result of frequent periodic elections.
The migration caused these areas to
Indeed, it was as a result of the 1969
become substantially Negro and segre-
election for membership on the Denver
gated." 303 F.Supp. 279, 282.
School Board that the Board's policy
which had previously favored the
Further reference to the District
correction of racial imbalance by Timple- |262
1261 Court's several opinions shows that the
mentation of resolutions was reversed by
allegedly discriminatory acts of the
the election of new members to the
School Board in the Park Hill area oc-
Board.
curred between 1960 and 1969, in the
context of a steadily expanding Negro
These difficulties obviously do not
school population in the Park Hill area
mean that the inquiry must be aban-
doned, but they do suggest that the care
and heightened sensitivity on the part of
with which the District Court conducted
the community to the problems raised by
it in this case is an absolutely essential
integration and segregation.
ingredient to its successful conclusion.
2724
93 SUPREME COURT REPORTER
413 U.S. 262
The Court's bald statement that the
finders of fact, concluding as a part of
District Court "held that its finding of
the fact-finding process that intent with
intentional segregation in Park Hill was
respect to one act may support a conclu-
not in any sense material to the question
sion of a like intent with respect to an-
of segregative intent in other areas of
other. This is but a restatement of the
the city" is flatly belied by the following
principle of which the District Court
statement in the District Court's opin-
showed it was aware. And, obviously,
ion:
opinions of courts of appeals upholding
"Although past discriminatory acts
such findings of the District Court do
may not be a substantial factor con-
not themselves support any broader
tributing to present segregation, they
proposition than do the opinions of the
may nevertheless be probative on the
District Court in question.
issue of the segregative purpose of
other discriminatory acts which are in
Chambers V. Hendersonville City
fact a substantial factor in causing a
Board of Education, 364 F.2d 189 (CA4
present segregated situation." 313 F.
1966), and North Carolina Teachers
Supp., at 74-75, n. 18.
Assn. V. Asheboro City Board of Ed-
ucation, 393 F.2d 736 (CA4 1968), in-
Thus, it is apparent that the District
volved a background of segregation by a
Court was fully aware that it might take
law in the State of North Carolina and
into consideration the intention with
"the failure of the public school system
which it found the School Board to have
to desegregate in compliance with the
performed one act in assessing its inten-
mandate of Brown until forced to do so
tion in performing another act. This is
by litigation." 364 F.2d, at 192. The
the most that the references in the
courts held that the decimation in the
Court's opinion to evidentiary treatises
ranks of the Negro teachers while white
such as Wigmore and McCormick sup-
teachers were unaffected, raised an in-
port. And it should be noted that the
ference of discrimination which cast
cases cited by the Court, and by the au-
upon the school board the burden of
thors of the treatises, almost invariably
justifying such decimation. In each
deal with the intention of a particular
case, the school board had offered vir-
individual or individuals, and not with
tually no evidence supporting any non-
the "intention" of a public body whose
discriminatory basis for the result reach-
membership is constantly changing.
ed. The cases are thus wholly different
The Court's opinion totally confuses
in their factual background from the
the concept of a permissible inference in
case now before the Court.
such a situation, of which the District
Court indicated it was well aware, with
Also worthy of note is the fact that 1264
263 what the Court calls a "presumption,"
neither in Chambers nor in Asheboro
which apparently "shifts
did the Court of Appeals remand for a
the
burden of proving" to the defendant
further hearing, but in effect ordered
school authority. No case from this
judgments for the appellants on the is-
Court has ever gone further in this area
sues considered. This amounted to a de-
than to suggest that a finding of intent
termination that the factual finding of
in one factual situation may support a
the District Court on that issue was
finding of fact in another related factual
"clearly erroneous," and the statement
situation involving the same factor, a
as to presumption was a statement as to
principle with which, as indicated above,
the appellate court's method of evaluat-
the District Court was thoroughly fa-
ing the factual finding. This Court is
miliar.
in quite a different position in reviewing
this case, with the factual finding of the
The District Court cases cited by the
District Court having been affirmed by
Court represent almost entirely the opin-
the Court of Appeals for the Tenth Cir-
ions of judges who were themselves
cuit than was the Court of Appeals for
413 U.S. 265 KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2725
Cite as 93 S.Ct. 2686 (1973)
the Fourth Circuit in reviewing the fac-
ly sympathetic to the plaintiffs' claims
tual findings of the District Courts that
gave them the full evidentiary hearing
were before it in Chambers and in Ashe-
to which they were entitled and careful-
265
boro. Indeed, it would be contrary to
ly considered all of the evidence before
settled principles for this Court to upset
him. He showed full awareness of the
a factual finding sustained by the Court
evidentiary principle that he might infer
of Appeals. "A seasoned and wise rule
from the "segregative intent" with
of this Court makes concurrent findings
which he found the Board to have acted
of two courts below final here in the ab-
in the Park Hill area a like intent with
sence of very exceptional showing of er-
respect to the core area, but he deliber-
ror." Comstock V. Group of Institutional
ately declined to do SO. This was his
Investors, 335 U.S. 211, 214, 68 S.Ct.
prerogative as the finder of fact, and
1454, 1456, 92 L.Ed. 1911 (1948).
his conclusion upon its affirmance by
The Court, doubtless realizing the dif-
the Court of Appeals is binding upon us.
ficulty of justifying an outright rever-
III
sal, instead remands for further factual
determination under newly enunciated
The Court has taken a long leap in
standards governing the evidentiary
this area of constitutional law in equat-
treatment of the finding as to Park Hill
ing the district-wide consequences of
by the District Court. These standards
gerrymandering individual attendance
call in some parts of the opinion for es-
zones in a district where separation of
tablishing a presumption, in other parts
the races was never required by law with
for shifting the burden of proof, and in
statutes or ordinances in other jurisdic-
other parts for recognizing a prima facie
tions which did so require. It then adds
case. Quite apart from my disagree-
to this potpourri a confusing enunciation
ment with the majority on its con-
of evidentiary rules in order to make it
stitutional law, I cannot believe it is a
more likely that the trial court will on re-
service to any of the parties to this liti-
mand reach the result which the Court
gation to require further factual deter-
apparently wants it to reach. Since I
mination under such a vague and impre-
believe neither of these steps is justified
cise mandate. But, more fundamentally,
by prior decisions of this Court, I dis-
I believe that a District Judge thorough-
sent.
2726
93 SUPREME COURT REPORTER
APPENDIX
CENTRE
ADAMS
COUNTY
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SITE 112
BAKER JUNIOR HIGH
7
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SITE 63
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x
-
KEYES V. SCHOOL DISTRICT NO. 1, DENVER, COLORADO
2727
Cite as 93 S.Ct. 26S6 (1973)
ASAMS COUNTY
SWANSEA
mill
000
HARRINGTON
SITE 67
22
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SMITH
SITE 114
1000
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STEDMAN
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