Columbus Board of Education v. Penick

Mr. Justice Powell,

dissenting. *

I join the dissenting opinions of Mr. Justice Rehnquist and write separately to emphasize several points. The Court’s opinions in these two cases are profoundly disturbing. They appear to endorse a wholly new constitutional concept applicable to school cases. The opinions also seem remark *480 ably insensitive to the now widely accepted view that a quarter of a century after Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), the federal judiciary should be limiting rather than expanding the extent to which courts are operating the public school systems of our country. In expressing these views, I recognize, of course, that my Brothers who have joined the Court’s opinions are motivated by purposes and ideals that few would question. My dissent is based on a conviction that the Court’s opinions condone the creation of bad constitutional law and will be even worse for public education — an element of American life that is essential, especially for minority children.

I

Me. Justice Rehnquist’s dissents demonstrate that the Court’s decisions mark a break with both precedent and principle. The Court indulges the courts below in their stringing together of a chain of “presumptions,” not one of which is close enough to reality to be reasonable. See ante, at 472 (opinion of Stewart, J.). This chain leads inexorably to the remarkable conclusion that the absence of integration found to exist in a high percentage of the 241 schools in Columbus and Dayton was caused entirely by intentional violations of the Fourteenth Amendment by the school boards of these two cities. Although this conclusion is tainted on its face, is not supported by evidence in either case, and as a general matter seems incredible, the courts below accepted it as the necessary premise for requiring as a matter of constitutional law a sys-temwide remedy prescribing racial balance in each and every school.

There are unintegrated schools in every major urban area in the country that contains a substantial minority population. This condition results primarily from familiar segregated housing patterns, which- — in turn — are caused by social, economic, and demographic forces for which no school board is responsible. These causes of the greater part of the school *481 segregation problem are not newly discovered. Nearly a decade ago, Professor Bickel wrote:

“In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might have an appreciable impact.” A. Bickel, The Supreme Court and the Idea of Progress 132, and n. 47 (1970). 1

Federal courts, including this Court today, continue to ignore these indisputable facts. Relying upon fictions and presumptions in school cases that are irreconcilable with principles of equal protection law applied in all other cases, see, e. g., Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256 (1979); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977); Washington v. Davis, 426 U. S. 229 (1976), federal courts prescribe systemwide remedies without relation to the causes of the segregation found to exist, and implement their decrees by requiring extensive transportation of children of all school ages.

The type of state-enforced segregation that Brown I properly condemned no longer exists in this country. This is not to say that school boards — particularly in the great cities of the North, Midwest, and West — are taking all reasonable measures to provide integrated educational opportunities. As I indicated in my separate opinion in Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 223-236 (1973), de facto segregation has existed on a large scale in many of these cities, *482 and often it is indistinguishable in effect from the type of de jure segregation outlawed by Brown . Where there is proof of intentional segregative action or inaction, the federal courts must act, but their remedies should not exceed the scope of the constitutional violation. Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Austin Independent School Dist. v. United States, 429 U. S. 990, 991 (1976) (Powell, J., concurring); Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976); Milliken v. Bradley, 418 U. S. 717 (1974); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 16 (1971). Systemwide remedies such as were ordered by the courts below, and today are approved by this Court, lack any principled basis when the absence of integration in all schools cannot reasonably be attributed to discriminatory conduct. 2

Mr. Justice Rehnquist has dealt devastatingly with the *483 way in which the Court of Appeals endowed prior precedents with new and wondrous meanings. I can add little to what he has said. I therefore move to more general but, in my view, important considerations that the Court simply ignores.

II

Holding the school boards of these two cities responsible for all of the segregation in the Dayton and Columbus sys-stems and prescribing fixed racial ratios in every school as the constitutionally required remedy necessarily implies a belief that the same school boards — under court supervision— will be capable of bringing about and maintaining the desired racial balance in each of these schools. The experience in city after city demonstrates that this is an illusion. The process of resegregation, stimulated by resentment against judicial coercion and concern as to the effect of court supervision of education, will follow today’s decisions as surely as it has in other cities subjected to similar sweeping decrees.

The orders affirmed today typify intrusions on local and professional authorities that affect adversely the quality of education. They require an extensive reorganization of both school systems, including the reassignment of almost half of the 96,000 students in the Columbus system and the busing of some 15,000 students in Dayton. They also require reassignments of teachers and other staff personnel, reorganization of grade structures, and the closing of certain schools. The orders substantially dismantle and displace neighborhood schools in the face of compelling economic and educational reasons for preserving them. This wholesale substitution of judicial legislation for the judgments of elected officials and professional educators derogates the entire process of public education. 3 Moreover, it constitutes a serious interference *484 with the private decisions of parents as to how their children will be educated. These harmful consequences are the inevitable byproducts of a judicial approach that ignores other relevant factors in favor of an exclusive focus on racial balance in every school.

These harmful consequences, moreover, in all likelihood will provoke responses that will defeat the integrative purpose of the courts’ orders. Parents, unlike school officials, are not bound by these decrees and may frustrate them through the simple expedient of withdrawing their children from a public school system in which they have lost confidence. In spite of the substantial costs often involved in relocation of the family or in resort to private education, 4 experience demonstrates that many parents view these alternatives as preferable to submitting their children to court-run school systems. In the words of a leading authority:

“An implication that should have been seen all along but can no longer be ignored is that a child’s enrollment in a given public school is not determined by a governmental decision alone. It is a joint result of a governmental decision (the making of school assignments) and parental decisions, whether to remain in the same residential location, whether to send their child to a private school, or which school district to move into when moving into a metropolitan area. The fact that the child’s enrollment is a result of two decisions operating jointly means that government policies must, to be effective, anticipate parental decisions and obtain the parents’ active cooperation in implementing school policies.” Cole *485 man, New Incentives for Desegregation, 7 Human Rights, No. 3, pp. 10, 13 (1978).

At least where inner-city populations comprise a large proportion of racial minorities and surrounding suburbs remain white, conditions that exist in most large American cities, the demonstrated effect of compulsory integration is a substantial exodus of whites from the system. See J. Coleman, S. Kelly, & J. Moore, Trends in School Segregation, 1968-1973, pp. 66, 76-77 (1975). It would be unfair and misleading to attribute this phenomenon to a racist response to integration per se. It is at least as likely that the exodus is in substantial part a natural reaction to the displacement of professional and local control that occurs when courts go into the business of restructuring and operating school systems.

Nor will this resegregation be the only negative effect of court-coerced integration on minority children. Public schools depend on community support for their effectiveness. When substantial elements of the community are driven to abandon these schools, their quality tends to decline, sometimes markedly. Members of minority groups, who have relied especially on education as a means of advancing themselves, also are likely to react to this decline in quality by removing their children from public schools. 5 As a result, *486 public school enrollment increasingly will become limited to children from families that either lack the resources to choose alternatives or are indifferent to the quality of education. The net effect is an overall deterioration in public education, the one national resource that traditionally has made this country a land of opportunity for diverse ethnic and racial groups. See Keyes, 413 U. S., at 250 (opinion of Powell, J.).

Ill

If public education is not to suffer further, we must “return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert.” Id., at 253 . The ultimate goal is to have quality school systems in which racial discrimination is neither practiced nor tolerated. It has been thought that ethnic and racial diversity in the classroom is a desirable component of sound education in our country of diverse populations, a view to which I subscribe. The question that courts in their single-minded pursuit of racial balance seem to ignore is how best to move toward this goal.

For a decade or more after Brown I, the courts properly focused on dismantling segregated school systems as a means of eliminating state-imposed discrimination and furthering wholesome diversity in the schools. 6 Experience in recent *487 years, however, has cast serious doubt upon the efficacy of far-reaching judicial remedies directed not against specific constitutional violations, but rather imposed on an entire school system on the fictional assumption that the existence of identifiable black or white schools is caused entirely by intentional segregative conduct, and is evidence of system-wide discrimination. In my view, some federal courts — now led by this Court — are pursuing a path away from rather than toward the desired goal. While these courts conscientiously view their judgments as mandated by the Constitution (a view that would have astonished constitutional scholars throughout most of our history), the fact is that restructuring and overseeing the operation of major public school systems— as ordered in these cases — fairly can be viewed as social engineering that hardly is appropriate for the federal judiciary.

The time has come for a thoughtful re-examination of the proper limits of the role of courts in confronting the intractable problems of public education in our complex society. Proved discrimination by state or local authorities should never be tolerated, and it is a first responsibility of the judiciary to put an end to it where it has been proved. But many courts have continued also to impose wide-ranging decrees, and to retain ongoing supervision over school systems. Local and state legislative and administrative authorities have been supplanted or relegated to initiative-stifling roles as minions of the courts. Indeed, there is reason to believe that some legislative bodies have welcomed judicial activism with respect to a subject so inherently difficult and so politically sensitive that the prospect of others confronting it seems inviting. Federal courts no longer should encourage this deference by the appropriate authorities — no matter how willing they may *488 be to defer. Courts are the branch least competent to provide long-range solutions acceptable to the public and most conducive to achieving both diversity in the classroom and quality education.

School boards need not wait, and many have not waited, for innovative legislative guidance. The opinion of the Court in Swann , though often cited (as in this case) for views I think were never intended, identified some constructive actions always open to school authorities:

“An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation 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 [or less in the majority] is an indispensable 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 the transferring student free transportation and space must be made available in the school to which he desires to move.” 402 U. S., at 26-27 .

See also Keyes, 413 U. S., at 240-241 (opinion of Powell, J.). Incentives can be employed to encourage these transfers, such as creation of magnet schools providing special educational benefits and state subsidization of those schools that expand their minority enrollments. See, e. g., Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 (Levinsohn & Wright eds. 1976). These and like plans, if adopted voluntarily by States, also could help counter the effects of racial imbalances between school districts that are beyond the reach of judicial correction. See Milliken v. Bradley, 418 U. S. 717 (1974); cf. Coleman, 7 Human Rights, at 48-49. 7

*489 After all, and in spite of what many view as excessive government regulation, we are a free society — perhaps the most free of any in the world. Our people instinctively resent coercion, and perhaps most of all when it affects their children and the opportunities that only education affords them. It is now reasonably clear that the goal of diversity that we call integration, if it is to be lasting and conducive to quality education, must have the support of parents who so frequently have the option to choose where their children will attend school. Courts, of course, should confront discrimination wherever it is found to exist. But they should recognize limitations on judicial action inherent in our system and also the limits of effective judicial power. The primary and continuing responsibility for public education, including the bringing about and maintaining of desired diversity, must be left with school officials and public authorities.

[This opinion applies also to No. 78-627, Dayton Board of Education et al. v. Brinkman et al., post, p. 626.]

See also Farley, Residential Segregation and Its Implications for School Integration, 39 Law & Contemp. Prob., No. 1, p. 164 (1975); K. Taeuber & A. Taeuber, Negroes in Cities (1965). The Court of Appeals below treated the residential segregation in Dayton and Columbus as irrelevant. See post, at 522, and n. 24 (Rehnquist, J., .dissenting).

As I suggested in my separate opinion in Keyes , it is essential to identify the constitutional right that is asserted in school desegregation cases. The Court’s decisions hardly have been lucid on this point. In Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II), the Court identified the “fundamental principle” enunciated in Brown I, as being the unconstitutionality of “racial discrimination in public education.” 349 U. S., at 298 . In Keyes , I undertook to define the right, derived from the Equal Protection Clause, as one to attend an “integrated school system,” a system in which school authorities take into consideration the enhancement of integrated school opportunities in addition to the goal of quality education in making and implementing their customary decisions. 413 U. S., at 226 . I also noted that an integrated system does not mean that “every school must in fact be an integrated unit,” id., at 227 , and emphasized that the Equal Protection Clause “does not require that school authorities undertake widespread student transportation solely for the sake of maximizing integration.” Id., at 242 . When challenged, the school authorities must show that in fact they are operating an integrated system in the foregoing sense. This is quite different from the burden imposed on the school authorities by the Court of Appeals and the District Court in No. 78-610, of proving, by a preponderance of the evidence, that they have met an affirmative duty in existence since 1954 to eliminate every racially identifiable school “root and branch.”

Defending lawsuits that remain active for years and complying with elaborate court decrees also divert the time, attention, and resources of school authorities from education.

A third alternative is available to parents moving for the first time into a metropolitan area where a school district is operating under a “system-wide remedy” decree. To avoid the probability of their children being bused away from neighborhood schools, and in view of the widely held belief that the schools under a court decree are likely to be inferior, these parents may seek residences beyond the urban school district.

Academic debate has intensified as to the degree of educational benefit realized by children due to integration. See R. Crain & R. Mahard, The Influence of High School Racial Composition on Black College Attendance and Test Performance (1978); Coleman, New Incentives for Desegregation, 7 Human Rights, No. 3, p. 10 (1978); Weinberg, The Relationship Between School Desegregation and Academic Achievement: A Review of the Research, 39 Law & Contemp. Prob., No. 2, p. 241 (1975). Much of the dispute seems beside the point. It is essential that the diverse peoples of our country learn to live in harmony and mutual respect. This end is furthered when young people attend schools with diverse student bodies. But the benefits that may be achieved through this experience often will be compromised where the methods employed to promote integration include coercive measures such as forced transportation to achieve some *486 theoretically desirable racial balance. Cf. N. St. John, School Desegregation Outcomes for Children (1975).

During this period the issues confronted by the courts by and large involved combating the devices by which States deliberately perpetuated dual school systems and dismantling segregated systems in small, rural areas. E. g., Green v. County School Board, 391 U. S. 430 (1968); Griffin v. School Board, 377 U. S. 218 (1964); Goss v. Board of Education, 373 U. S. 683 (1963); Cooper v. Aaron, 358 U. S. 1 (1958). See Wilkinson, The Supreme Court and Southern School Desegregation, 1955-1970: A History and Analysis, 64 Va. L. Rev. 485 (1978). This Court did not begin to face the difficult administrative and social problems associated with de facto segregation in large urban school systems until Swann v. *487 Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971). It is especially unfortunate that the Court today refuses to acknowledge these problems and chooses instead to sanction methods that, although often appropriate and salutary in the earlier context, are disruptive and counterproductive in school systems like those in Columbus and Dayton.