# Columbus Board of Education v. Penick

> Supreme Court of the United States · October 1, 1979 · 443 U.S. 449

URL: https://www.frixlaw.com/law-library/cases/9427690

## Case

- **Full name:** COLUMBUS BOARD OF EDUCATION Et Al. v. PENICK Et Al.
- **Court:** Supreme Court of the United States
- **Decided:** October 1, 1979
- **Citations:** 443 U.S. 449; 99 S. Ct. 2941; 61 L. Ed. 2d 666; 1979 U.S. LEXIS 144
- **Precedential status:** Published
- **Opinion:** Concurrence by Burger
- **Judges:** Stewaet, White, Brennan, Marshall, Blackmtjn, Stevens, Burger, Stewart, Powell, Rehnquist
- **Cited by:** 325 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9427690

## How later opinions describe it (automated extraction)

- stating that once official segregation has been shown, "[u]nder the Fourteenth Amendment and the cases that have construed it, the Board [of Education's duty to dismantle its dual system cannot be gainsaid''
- noting that black teachers were assigned only to those schools with substantial black student populations and that exceptions were made to an otherwise geographically based neighborhood-school policy to allow white students to avoid predominantly black schools
- finding that disparate impact does not imply a finding of intentional discrimination

## Opinion text

Mr. Chief Justice Burger,
concurring in the judgment.
I perceive no real difference in the legal principles stated in the dissenting opinions of Mr. Justice Rehnquist and Mr. Justice Powell on the one hand and the opinion of Mr. Justice Stewart concurring in the result in this case on the other; they differ only in their view of the District Court’s role in applying these principles in the finding of facts.
Like Mr. Justice Rehnquist, I have serious doubts as to how many of the post-1954 actions of the Columbus Board of Education can properly be characterized as segregative in intent and effect. On this record I might very well have concluded that few of them were. However, like Mr. Justice Stewart, I am prepared to defer to the trier of fact because I find it difficult to hold that the errors rise to the level of “clearly erroneous” under Rule 52. The District Court did find facts sufficient to justify the conclusion reached by Mr. Justice Stewart that the school “district was not being operated in a racially neutral manner” and that the Board’s actions affected “a meaningful portion” of the school system. Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 208 (1973). For these reasons I join Mr. Justice Stewart’s opinion.
In joining that opinion, I must note that I agree with much *469 that is said by Justices Rehnquist and Powell in their dissenting opinions in this case and in Dayton Board of Education v. Brinkman, post, p. 526. I agree especially with that portion of Me. Justice Rehnquist’s opinion that criticizes the Court’s reliance on the finding that both Columbus and Dayton operated “dual school systems” at the time of Brown v. Board of Education, 347 U. S. 483 (1954), as a basis for holding that these school boards have labored under an unknown and unforeseeable affirmative duty to desegregate their schools for the past 25 years. Nothing in reason or our previous decisions provides foundation for this novel legal standard.
I also agree with many of the concerns expressed by Me. Justice Powell with regard to the use of massive transportation as a “remedy.” It is becoming increasingly doubtful that massive public transportation really accomplishes the desirable objectives sought. Nonetheless our prior decisions have sanctioned its use when a constitutional violation of sufficient magnitude has been found. We cannot retry these sensitive and difficult issues in this Court; we can only set the general legal standards and, within the limits of appellate review, see that they are followed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9427690. Public record. Not legal advice.