Amicus Brief — Columbus Board of Education v. Penick

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Paprese Cocrt, 5. 2.

ELLEQD

APR 6 i979

Nos. 78-610 and 78-627

Iu the Supreme Court of the An

OCTOBER TERM, 1978

COLUMBUS BOARD OF EDUCATION, ET AL., PETITIONERS

Vv.

GARY L. PENICK, ET AL.

DAYTON BOARD OF EDUCATION, ET AL., PETITIONERS

MARK BRINKMAN, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

LAWRENCE G. WALLACE

Acting Solicitor General

Drew S. Days, III

Assistant Attorney General

SARA SUN BEALE

Assistant to the Solicitor General

BRIAN K. LANDSBERG

ROBERT J. REINSTEIN

IRVING GORNSTEIN

Attorneys

Department of Justice

Washington, D.C. 20530

Questions presented

Interest of the United States

eee ewe eee

IR ciel sh rin cenlcasenietinccalameptteniniallinanhiidionioniiis

i III atag ita Reer eadbdnsRanibetnncaplibasapiiciesons:

A. The district court’s findings of

OI hi crecnteidad te preeadniicadieeatecianntontianioiies

1. Faculty segregation -.................

2. School construction ....................

3. Optional attendance zones ........

4. Deaers Bee qn...

5. Noncontiguous attendance

I sti etertchctertecaenitnsnadcteemetienssineres

GC: Hele. OP Oi

B. The district court’s adoption of a

eT Ce

C. The court of appeals’ decision ........

D. The stay applications to this Court..

II. Dayton tions

A. The proceedings to and including

this Court’s decision in Dayton I....

B. The district court’s decision on re-

mand

Faculty segregation

Attendance zones and boundary

changes .........

Site selection

Statement—Continued Page Argument—Continued Page

C. The court of appeals’ second deci- 1. The Boards’ current practices

I acne hartta a acarepetaiecttanacioueniledcotokanatnin 24 were evaluated in light of their

1. The creation of a dual system history of discrimination .......... 51

prior to Brown I ................------ 24 2. The Boards continued to assign

SOUT Ol TID cone cccvecencesieseseces 54

2. The Board’s conduct subsequent ty by

DT Se aa eee 28 3. The Boards continued to ma-

ae nipulate their “neighborhood

a. Faculty assignments .......... 29 school” policies to separate stu-

3. Optional attendance zones ...... 30 dents by TAC -...---eecccceseseeeeeen 56

, II. Systemwide remedies are appropriate

4. School construction -................ oe in these cases because they are tailored

5. Reorganization of grade struc- to curing the condition that offends the

SS ESSER ALL EE 31 RIO \ Micntacsiiccciccceebeies 69

D. The Board’s stay applications _.... 33 A. The Columbus and Dayton Boards

are under an affirmative consti-

Summary of argument -..............-------------------- 33 tutional duty to convert the dual

2 RR ae Siete Se 41 | systems they created and main-

ee tained into unitary systems with-

I. The Columbus and Dayton School Boards | out “white” schools and “black”

engaged in systemwide policies of in- | I nessicintinstontncenbmeiineieconteniile 70

ventional ractal segregation —....._. ” B. The Boards did not meet their

A. The causes of current racial sepa- burden of proving that less exten-

ration in the Columbus and Dayton sive relief would fully eradicate

schools must be evaluated in light the effects of their systemwide

of the historical creation and main- | ee ee SN eT CO 72

tenance of dual systems -.............. 45 1. When systemwide discrimina-

The Boards’ more contemporary tion has been shown, the bur-

practices deliberately perpetuated den shifts to the defendants to

and increased racial separation in establish that the remedy need

their school systems ... 50 not be systemwide ...................- 72

Argument—Continued Page

2. Since the Dayton and Colum-

bus Boards did not establish

that a less extensive remedy

would cure the effects of their

segregative policies, systemwide

remedies were appropriate ...... 80

3. The remedial principle of Keyes

and Swann, upon which these

decisions rest, should be reaf-

Cases:

INET -hsdkinherrlaiagecitunnciavebnihanendive 85

NN oc, a stcmerininchatintilgtninenen 88

CITATIONS

Alexander v. Holmes County Board of

Education, 896 U.S. 19 .......----.---c---ee-e- 2

Alexander v. Louisiana, 405 U.S. 6265 ...... 66

Armstrong v. Brennan, 589 F.2d 6265 .....- 74

Brennan v. Armstrong, 433 U.S. 672 ...... 74

Brown v. Board of Education, 347 U.S.

RE MIE, TED fniieh cceernits cehintonesotanienes 2, 6, 24, 53

Brown v. Board of Education, 349 U.S.

| REED Re oe OREN! Re Leen 2, 34

Castaneda v. Partida, 430 U.S. 482 ........ 63, 65

Columbus Board of Education v. Penick,

No. A-134 (August 11, 1978) .............. 67

Cooper v. Aaron, 358 U.S. 1 .......-..---.-000--+ 2

Davis v. Board of School Commissioners,

I I TE ii alilaan i eacteasiarinebeeonirese 71

Dayton Board of Education v. Brinkman,

433 U.S. 406 (Dayton I).......2-3, 14, 18, 19, 42,

50, 68, 69, 73, 74

Cases—Continued Page

Evans v. Buchanan, 582 F.2d 750, peti-

tion for cert. pending, Nos. 78-671, 78-

a tea UR ells os a 78

Franks v. Bowman Transportation Co.,

as NE taicicaiccessipnane icin ectreeceillinies 76, 77

Gomillion v. Lightfoot, 364 U.S. 339 ........ 65

Green v. County School Board, 391 U.S.

SMO Ee PN oor MAR TA Me OT Ne 2, 48, 71

Guinn v. United States, 238 U.S. 347 ...... 65

Hazelwood School District vy. United

UNOS, GB TF Boe BIO ikwviceresenictcscesives 53

Hills vy. Gautreaux, 425 U.S. 284 .............. 70

Hutto v. Finney, 487 U.S. 678 ............--.... 86

Kelly v. Guinn, 456 F.2d 100, cert. de-

BR ER a I ehltheticeeicicnccsinshinialstceones 55

Keyes v. School District No. 1, 413 U.S.

eR Fe MAEM ATTY AES A RT TS ee passim

Milliken v. Bradley, 418 U.S. 717 ............ 2

Milliken v. Bradley, 483 U.S. 267 ............ 2, 70, 86

Mt. Healthy City Board of Education v.

BRO, GED: SEO Cb victiisnisnihtidiasbines 76

NLRB vy. Gissel Packing Co., 395 U.S.

OPED . cisisissiekuistabassahideaciianiesabciiiisninmsduhadidendaeimstasiade: 76

Oliver v. Michigan State Board of Educa-

tion, 508 F.2d 178, cert. denied, 421

Re I a ehisticneont tail aa aiae oh ace eal ltetca 27, 64

Pasadena City Board of Education v.

Spangler, 427 U.S. 424 200... cccccceceeeeeee 2

Runyon v. McCrary, 427 U.S. 160 ............ 2, 87

School Board of City of Richmond v. State

Board of Education, 412 U.S. 92 .......... 2

School District of Omaha v. United States,

I SEs EE «sincera sonecapasunaamnithiciaapmnreoes 74

Cases—Continued Page

Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1 ........ 2, 15, 38-39, 48,

58, 55, 57, 60, 61, 70, 71, 74

Teamsters v. United States, 431 U.S. 324.. 77, 78

United States v. Montgomery County

Board of Education, 395 U.S. 226 ........ 22

United States v. School District of Omaha,

521 F.2d 530, cert. denied, 423 U.S.

ee I SET Ua We) NI 58-59, 66

United States v. Texas Education Agency,

579 F.2d 910, petition for cert. pend-

Si, Ts TOMI. chijiscecnsclcbinnscincooctitiesseteinis 66

Village of Arlington Heights v. Metro-

politan Housing Corp., 429 U.S. 252.... 51, 52,

59, 64-65, 67, 68, 76

Washington v. Davis, 426 U.S. 229..42, 64, 65-66

Wright v. Council of City of Emporia,

OIE BB ccicdecitndesocnissiticasinniaiibiaiiiallibies 2

Yick Wo v. Hopkins, 118 U.S. 356 .......... 65

Zenith Radio Corp. v. Hazeltine Research,

BB TI Be. BOD scacsrvsisencnnetlisbveveenitindatone 76

Statutes:

Civil Rights Act of 1964, 42 U.S.C. 1971

et seq.:

Title IV, 42 U.S.C. 2000c-6 ........0000... 2

Title VI, 42 U.S.C. 2000d .................. 2

Title IX, 42 U.S.C. 2000h-2 .............. 2

Equal Educational Opportunities Act of

1974, 20 U.S.C. 1701 et seg. .................- 2

Section 202, 20 U.S.C. 1701 .............. 57

Section 204(a), 20 U.S.C. 1703 (a).... 58

Statutes—Continued

Section 204(b), 20 U.S.C, 1708 (b)....

Section 206, 20 U.S.C, 1706 ....... ae

Section 218, 20 U.S.C, 1712 .........cccce

Section 214, 20 U.S.C, 1718 0.0...

Miscellaneous:

Farley, Residential Segregation And Its

Implications For School Integration, 39

Law & Contemp. Prob. 164 (1975) ......

Note, Reading The Mind of the School

Board: Segregative Intent and the De

Facto/De Jure Distincticn, 86 Yale L.J.

I iach taicnteiidsnicissbeeabieilinensansiin

W. Prosser, Law of Torts (4th ed. 1971)..

K. Taeuber, Patterns of Negro-White

Residential Segregation (Rand Corp.

EG AIEEE duldisibpesesdnuscbhothaebinkieebascihmiaieses

1 J. Wigmore, Evidence (3d ed. 1940)...

2 J. Wigmore, Evidence (3d ed. 1940)...

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-610

COLUMBUS BOARD OF EDUCATION, ET AL., PETITIONERS

Vv.

GARY L. PENICK, ET AL.

No. 78-627

DAYTON BOARD OF EDUCATION, ET AL., PETITIONERS

MARK BRINKMAN, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTIONS PRESENTED

1. Whether the evidence supports the lower courts’

findings that the Columbus Board of Education and

(1)

the Dayton Board of Education adopted and main-

tained segregative policies with a systemwide impact.

2. Whether the systemwide impact of the viola-

tions warranted a systemwide remedy in each case.

INTEREST OF THE UNITED STATES

The United States has substantial enforcement re-

sponsibility with respect to school desegregation un-

der Titles IV, VI and IX of the Civil Rights Act

of 1964, 42 U.S.C. 2000c-6, 2000d and 2000h-2, and

under the Equal Educational Opportunities Act of

1974, 20 U.S.C. 1701 et seg. The Court’s resolution of

the issues presented in this case would affect that en-

forcement responsibility. The United States has par-

ticipated either as a party or as amicus curiae in

most of this Court’s school desegregation cases, in-

cluding Brown v. Board of Education, 347 U.S. 483

(1954), 349 U.S. 294 (1955); Cooper v. Aaron, 358

U.S. 1 (1958); Green v. County School Board, 391

U.S. 430 (1968) ; Alexander v. Holmes County Board

of Education, 396 U.S. 19 (1969); Swann v. Char-

loite-Mecklenburg Board of Education, 402 U.S. 1

(1971); Wright v. Council of City of Emporia, 407

U.S. 451 (1972); School Board of City of Richmond

v. State Board of Education, 412 U.S. 92 (1973);

Keyes v. School District No. 1, 413 U.S. 189 (1973) ;

Milliken v. Bradley, 418 U.S. 717 (1974); Runyon

v. McCrary, 427 U.S. 160 (1976); Pasadena City

Board of Education v. Spangler, 427 U.S. 424 (1976) ;

Milliken v. Bradley, 433 U.S. 267 (1977); and Day-

ton Board of Education v. Brinkman, 433 U.S. 406

(1977).

STATEMENT

These school desegregation cases involve the cities

of Columbus and Dayton, Ohio. The city of Colum-

bus has an area of 173 square miles and a popula-

tion of more than 500,000 (Columbus Pet. App. 12).

The boundaries of the school district are generally

coterminous with the boundaries of the city. In 1976,

the year the Columbus case was tried, approximately

96,000 students attended the Columbus public schools

(ibid.). More than 32% of these students were black

(Columbus Pet. App. 19).

The city of Dayton has a population of 245,000

(Dayton A. 34). The Dayton school district is not

coterminous with the city (ibid.). Some parts of the

city are included within other school districts, while

the school district includes some parts of other town-

ships. The population within the Dayton school dis-

trict boundaries is 268,000 (ibid.). In 1976, ap-

proximately 45,000 students were enrolled in the Day-

ton public schools, slightly less than 50% of whom

were black (Dayton A. 34-35).

At the times of trial, both Columbus and Dayton

had a high degree of racial separation in their

schools. In Columbus, about 70% of all students

attended schools that were more than 80% white or

80% black (Columbus Pet. App. 18). Half of the

172 schools operated by the Columbus Board of Edu-

cation were more than 90% black or 90% white

. -

(Columbus Pet. App. 163). In Dayton 51 of the

69 public schools were virtually all-white or all-black

(Dayton Pet. App. 149a-150a). In each case, plain-

tiffs sought to prove that these conditions of racial

separation were brought about by deliberate school

board actions. In each case the court of appeals con-

cluded that plaintiffs had proved systemwide consti-

tutional violations warranting systemwide remedies.

The Columbus and Dayton school boards now chal-

lenge these conclusions. Because we believe that their

petitions raise basically the same legal issues, we

address both cases in a single brief.

I. COLUMBUS

A. The district court’s findings of fact

This suit was filed on June 21, 1973, by a group

of students attending the Columbus Public Schools,

and their parents, against the Columbus Board of

Education (“the Columbus Board’’), its elected mem-

bers, and the State Board of Education (Columbus

Pet. App. 4-5).’ The second amended complaint,

styled a class action, was filed on October 22, 1974;

it alleged that the Board had engaged in a system-

wide policy of segregation warranting a systemwide

remedy (Columbus Pet. App. 5-6). A group of inter-

The Superintendent of the Columbus Public Schools, the

State Superintendent of Public Instruction, the Governor,

and the Attorney General were also named as defendants

(Columbus Pet. App. 4). The district court found no evidence

of any segregative conduct by the Governor or the Attorney

General (Columbus Pet. App. 63).

vening plaintiffs made essentially the same allegations

and also sought a “ ‘system-wide’ plan of desegrega-

tion” (Columbus Pet. App. 6).

After a trial lasting 36 days, the district court

entered detailed findings of fact, concluding that the

Columbus Board had a long-standing systemwide

policy of segregating its students on the basis of race.’

The court focused first on the period before 1954

“to discover whether past acts or omissions are in

any degree responsible for the admitted current racial

imbalance in the Columbus schools” (Columbus Pet.

App. 7). It found that the Columbus Board had

formally abolished separate schools for blacks in

1881, and for a number of years assigned children

to schools on the basis of geographic proximity (Co-

lumbus Pet. App. 8). In 1909, however, the Board

built Champion school in a predominantly black resi-

dential district and staffed it with all black teachers

(Columbus Pet. App. 8). During the 1920’s and

1930’s, all black teachers employed by the Board were

assigned to Champion (Columbus Pet. App. 8-9).

In succeeding years, the Columbus Board established

several other black schools to accommodate the grow-

ing black population. For example, in 1938 the Board

converted Pilgrim School, which was then a racially

mixed junior high school, into an elementary school

for black children (Columbus Pet. App. 9). This

2 The district court also found the State Board of Educa-

tion jointly liable (Columbus Pet. App. 64-67). The court of

appeals remanded the case for more detailed findings by the

district court on this point (Columbus Pet. App. 200-207).

change was accomplished by gerrymandering Pil-

grim’s attendance zones along racial lines and by

replacing the school’s all-white faculty with an all-

black faculty (Columbus Pet. App. 9). Similarly, the

teaching staffs at Felton, Garfield, and Mount Ver-

non, which became predominantly black schools, were

converted from 100% white to 100% black (Colum-

bus Pet. App. 9-10). The court found that by 1954

the Board had deliberately isolated most of its black

students in five black schools on the near-east side of

Columbus (Columbus Pet. App. 10-11). In conjunc-

tion with overt discrimination in student assignment,

the Board assigned black teachers and administrators

to its black schools (Columbus Pet. App. 9-10). Ac-

cordingly, the district court found that at the time

of this Court’s decision in Brown v. Board of Educa-

tion, 347 U.S. 483 (1954), the Columbus Board of

Education was operating a dual system (Columbus

Pet. App. 11).

Turning to the period after 1954, the court found

that the Board never attempted to dismantle this

dual system of education (Columbus Pet. App. 61).

To the contrary, the Columbus Board instead per-

petuated and intensified racial separation py the fol-

lowing practices.

1. Faculty segregation

The court found that until 1974 the Board “gen-

erally maintained” its policy of assigning black teach-

ers to those schools with substantial black student

populations (Columbus Pet. App. 15). As the court

Sn A Oe + A ca OOOO eR CE OR

noted, this practice was discontinued only after a

complaint was filed by the Ohio State Civil Rights

Commission, and a conciliation agreement was en-

tered in July 1974 (Columbus Pet. App. 15, 59).

2. School construction

The court found (Columbus Pet. App. 21) that

of the 103 schools constructed by the Board between

1950 and 1975, 87 opened with racially identifiable

student bodies, and 71 remained racially identifiable

at the time of trial. Recognizing the Board’s con-

tention that it had followed a neutral neighborhood

school policy, the court noted (Columbus Pet. App.

21) that the Board could have foreseen the probable

racial composition of the new schools, and that in

some instances the Board was warned that a school

constructed on a proposed site would be racially iden-

tifiable. For example, before the Board constructed

Gladstone in 1965, it was warned that the school

8 The court adopted the criteria of plaintiffs’ expert, Dr.

Gordon Foster, to determine whether a school was “racially

identifiable’ (Columbus Pet. App. 78-79). Racial identifiabil-

ity describes the relationship between the racial composition

of a particular school and the racial composition of the sys-

tem as a whole. A measure of statistical variance is applied

to the systemwide percentage of black pupils. Schools that

have a percentage of black pupils outside this range are

racially identifiable. For example, if the percentage of black

pupils in the school system is 32%, and the statistical vari-

ance is + or — 15%, schools outside the range of 17% to 47%

black would be racially identifiable. Dr. Foster’s computations

for the years 1950-1957. 1964, and 1975 appear in the ap-

pendix to the district court’s opinion (Columbus Pet. App.

78-79).

would open and remain black if built on its proposed

site (Columbus Pet. App. 21). The court found that

the Board had ignored this warning and built Glad-

stone on a site that served to contain the black stu-

dent population in the area south of Hudson Street;

in contrast, if the Board had built Gladstone further

north and readjusted its zone lines as some sug-

gested, it would have promoted integration at three

schools (Columbus Pet. App. 22).

The court did not infer segregative intent simply

from the fact that the Board constructed new schools

in residentially segregated areas, and it noted that

in residentially segregated areas, the neighborhood

school policy limits site selection (Columbus Pet. App.

25). The court found, however, that in those areas

of the city with substantial black and white popula-

tions, there had been opportunities, not taken by the

Board, to select sites for new schools that would have

had an integrative effect (Columbus Pet. App. 25).

3. Optional attendance zones

The court found (Columbus Pet. App. 26-33) that

the Board had established a number of optional zones

to allow white students to avoid attending their pre-

dominantly black neighborhood schools. For example,

for sixteen years the Board maintained the “Near-

Bexley Option,” which permitted students in a small

white enclave on Columbus’ predominantly black near-

east side to attend predominantly white schools, de-

spite the fact that they had to “traverse the City of

Bexley to arrive at the option schools” (Columbus

Pet. App. 26-28). The court found that the Near-

Bexley Option was a “classic example of a segrega-

tive device * * *” (Columbus Pet. App. 29). Other

optional zones with obvious racial consequences and

witheut apparent administrative justification were

established between (or among) Highland and West

Broad (Columbus Pet. App. 30), Highland and West

Mound (Columbus Pet. App. 31-32), Franklin and

Roosevelt (Columbus A. 458-464), Central and North

(Columbus A. 464-466), East and Linden-McKinley

(Columbus A. 466-469), the “downtown” schools (Co-

lumbus A. 478-485), Main and Livingston (Colum-

bus A. 485-489), Linmoor and Everett (Columbus

A. 492-494), Fair and Pilgrim, and Pilgrim, East-

wood and Eastgate (Columbus A. 500-503).

4. Boundary lines

The court found that the Board also drew bound-

ary lines along racial lines. For example, in the Hill-

top area on the west side of Columbus, there are

three predominantly white schools (Burroughs, West

Broad, and West Mound) and one pvedominantly

black school (Highland) (Columbus Pet. App. 29,

32). The Board not only removed white residential

areas from the predominantly black Highland zone

(Columbus Pet. App. 29-32) but also maintained

boundaries that served to contain the black student

population in Highland when alternative boundary

determinations would have fostered integration at

all four schools (Columbus Pet. App. 32-33).

Even after the Board formally announced that

improved racial balance was a relevant factor in its

site selection and boundary determinations, this pat-

tern continued. For instance, the Superintendent

designed two alternative plans to relieve overcrowd-

ing in the integrated Mifflin School District, one of

which would have maintained the original attendance

area by building one new school and pairing it with

the existing school. The Board rejected this integra-

tive alternative, and instead chose to divide the area

into two attendance zones, one serving the predomi-

nantly black, the other the predominantly white part

of the district (Columbus Pet. App. 37). The court

found the Board’s-attempts to show a nondiscrimi-

natory reason for rejecting the integrative option

unconvincing. It found there was no evidence sup-

porting the Board’s claim that the first plan would

have required substantial transportation of students,

and concluded that the Board had approved the use

(which it rejected here) of primary and intermedi-

ate schools when it served other interests (Colum-

bus Pet. App. 38).*

5. Noncontiguous attendance zones

The court also found that the Board sometimes

adopted noncontiguous attendance zones when appli-

cation of neutral neighborhood school principles would

have resulted in greater integration. For instance,

*Much of the evidence concerning boundary adjustments

relates to the opening of new schools (see Columbus A. 488-

527).

from 1966 to 1968 the Board bused white students

from a white residential area past predominantly

black Alum Crest Elementary School to predomi-

nantly white Moler Elementary (Columbus Pet. App.

34). Although the principal of Alum Crest asked a

Columbus School administrator for an explanation,

he never received one (Columbus Pet. App. 34). The

court could “discern no other explanation than a

racial one” for this situation (Columbus Pet. App.

34). The Board also assigned pupils on a noncon-

tiguous basis to Fornof School (Columbus Pet. App.

34-35) with similar segregative effects.

6. Failure to act

The court found that the Board was at all times

aware of the segregative consequences of its actions

and fully apprised of alternatives. The court pointed

out that “[vJarious segments of the community,

notably black parents and civic organizations, have

repeatedly and articulately vocalized concern, anger

or dismay concerning both overtly segregative actions

and lost integrative opportunities” (Columbus Pet.

App. 50). Local civil rights organizations, a Board-

sponsored advisory committee and the State Board of

Education, among others, all “called attention to the

problem and made certain curative recommendations”

(Columbus Pet. App. 51). Yet the Board consistently

failed to act on these recommendations (Columbus

Pet. App. 53).

Having found widespread racial separation in the

Columbus school system, the court held (Columbus

Pet. App. 60-61) that under Keyes v. School District

No. 1, 418 U.S. 189 (1978), the burden of proof

shifted to the defendants to show that “the racial

character of the school system is the result of racially

neutral social dynamics or the result of acts of others

for which defendants owe no responsibility.” The

court found (Columbus Pet. App. 60) that the re-

sult of the Board’s actions segregating black students

in schools on the near-east side of the city had

“survived unattenuated by any acts of defendants,”

and that recent nondiscriminatory efforts by the

Board in the areas of faculty assignments “have less-

ened the sting” of the Board’s longstanding discrimi-

natory policy, “but have not served to substantially

remove the evil it helped create.” The court found

(Columbus Pet. App. 61) that the defendants had

failed to show “that the present admitted racial im-

balance in the Columbus Public Schools would have

occurred even in the absence of their segregative acts

and omissions * * *.”

Although the Board had argued that because of

demographic trends some portion of the current seg-

regation would have existed even in the absence of

discrimination, the court found that the Board’s

actions had had a significant impact on housing pat-

terns, and that “[t]he interaction of housing and the

schools operate[d] to promote segregation in each”

(Columbus Pet. App. 58). The court noted school

authorities had no duty to “cure[ ] the evils of resi-

dential segregation,” but it stated that they should

have recognized the interaction between housing and

schools, and “certainly should not have aggravated

racial imbalance in the schools by their official ac-

tions” (ibid.).

Based on the totality of this evidence the court

concluded that the Board had not maintained a

racially neutral neighborhood school policy. Instead,

the court found (Columbus Pet. App. 61) that the

Board had been operating a dual system at the time

of the Brown decision in 1954, and that it “never ac-

tively set out to dismantle this dual system.” “Viewed

in the context of segregative optional attendance zones,

segregative faculty and administrative hiring and

assignments, and the other such actions and decisions

of the Columbus Board of Education in recent and

remote history,” the court found it “fair and reason-

able to draw an inference of segregative intent from

the Board’s actions and omissions discussed in this

opinion” (ibid.).

The effects of the Board’s actions were dramatic.

The court found that “those elementary, junior, and

senior high schools in the Columbus school district

which presently have a predominantly black student

enrollment have been substantially and directly af-

fected by the intentional acts and omissions” of the

school board (Columbus Pet. App. 73). And it em-

phasized (ibid.) that its findings concerned “the

Columbus school district as a whole” since the Board’s

actions tending to make “black schools blacker neces-

sarily have the reciprocal effect of making white

schools whiter.”

Bas ‘ upon these findings, the court directed the

Board to provide each black child in Columbus with

an opportunity for an integrated education (Colum-

bus Pet. App. 75). The court noted that such a plan

could maintain predominantly white schools if the

Board could show that the racial imbalance in those

schools was not the result of its segregative policies

(Columbus Pet. App. 75).

B. The district court’s adoption of a remedial order

The Board first submitted a plan that desegregated

all formerly black schools and continued 22 predomi-

nantly white schools (Columbus Pet. App. 102). Fol-

lowing this Court’s decision in Dayton Board of Edu-

cation v. Brinkman, 483 U.S. 406 (1977) (Dayton I),

the Board submitted an amended plan which had as

its purpose the desegregation of the 11 identifiably

black schools that had been referred to in the district

court’s opinion (Columbus Pet. App. 99-102).

The district court rejected the Board’s proposed

desegregation plans after reexamining its findings in

light of Dayton I. The court concluded that “[t]he

Dayton decision stands for the proposition that an

equitable remedy should not go beyond the scope

of the wrong which it purports to redress,” with

the remedy in school desegregation cases designed to

redress the “ ‘incremental segregative effect?” of

the actions of school officials (Columbus Pet. App.

92-93, quoting Dayton I, supra, 438 U.S. at 420).

Here, the district court found (Columbus Pet. App.

94), “there should be no confusion concerning the

scope of defendants’ liability” because the court had

previously found that “ ‘liability in this case concerns

the Columbus school district as a whole.’” In con-

trast to the Dayton case, the court pointed out that

its determination of liability did not rest on any

specific number of violations, but rather on the

Board’s actions since 1954 that “intentionally aggra-

vated, rather than alleviated, the racial imbalance of

the public schools it administers” (Columbus Pet.

App. 94). The court found that although school offi-

cials had ample opportunity to show that the admitted

racial imbalance in the schools was caused by factors

unrelated to the Board’s actions, “[t]his they did

not do” (Columbus Pet. App. 95).

The court found the Board’s original plan inade-

quate (Columbus Pet. App. 97-107). The Board had

adduced no evidence that desegregation of the 22

white schools would require transportation detri-

mental to health or to the educational process, and

the Board made no effort to meet its burden under

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 26 (1971), to show that the racial com-

position of these schools was not the result of past

or present discriminatory action on its part (Colum-

bus Pet. App. 105). Moreover, an alternate staff

plan that required only a marginal increase in trans-

portation distances promised more extensive desegre-

gation without leaving large areas for white flight

(Columbus Pet. App. 105). The court stated that

the Board could use either the latter plan, which

would bring each school within 15% of the district-

wide norm of 32% black students, or a plan submitted

by the State Board of Education, as a starting point

in drafting an acceptable plan (Columbus Pet. App.

107, 111).

The court also rejected the Board’s amended plan,

which would have desegregated only the schools spe-

cifically referred to in the court’s opinion on liability,

leaving 41 identifiably black schools and 73 identi-

fiably white schools unaffected (Columbus Pet. App.

99-102). The court found (Columbus Pet. App. 102)

that the Board had made no effort to show that the

imbalance in these schools was not the result of its

past and present discriminatory actions.

The Board subsequently submitted a plan for stu-

dent reassignment that the court found constitu-

tionally acceptable (Columbus Pet. App. 126-127).

C. The court of appeals’ decision

The court of appeals affirmed (Columbus Pet. App.

140-207). The appellate court held the record “fully

supports” the district court’s findings that “[a]s of

1954 the Columbus School Board had ‘carried out a

systematic program of segregation affecting a sub-

stantial portion of the students, schools, teachers and

facilities within the school system’” (Columbus Pet.

App. 159-160, quoting Keyes v. School District No. 1,

supra, 413 U.S. at 201-202). Under Keyes the court

of appeals held (Columbus Pet. App. 165-166) that

the burden then shifted to the Board to show that the

high degree of racial separation present in the schools

at the time of trial was not the result of the Board’s

segregative actions.

After noting “the substantial evidence of segrega-

tion in pupil, teacher and administrator assign-

ments,” the court of appeals considered the evidence

pertaining to the Board’s selection of school sites and

its construction program (Columbus Pet. App. 166).

It found (Columbus Pet. App. 172) that the record

amply supports the trial court’s findings. The ap-

pellate court added (Columbus Pet. App. 173) that

the racially identifiable character of the vast major-

ity of new schools created “a very strong inference

of intentional segregation,” but that “the record ac-

tually requires no reliance upon inference” because

there was evidence that the Board repeatedly chose

sites that it knew would have a segregative effect

even when there were alternative sites that would

have had an integrative effect. Finally, the appellate

court held that the record supported the district

court’s findings that the Board had intentionally em-

ployed gerrymandering, optional attendance zones,

and discontinuous attendance areas as “devices which

allowed white students to avoid attendance at a pri-

marily black school, or which required black students

to attend a primarily black school in place of a closer

white school” (Columbus Pet. App. 174-175). The

court stated (Columbus Pet. App. 175) that although

the specific instances of gerrymandering of attend-

ance boundaries and use of optional attendance

zones cited by the trial court were “isolated in the

sense that they do not form any systemwide pattern,”

they were significant because they demonstrated that

the Board’s “ ‘neighborhood school concept’ was not

applied when application of the neighborhood concept

would tend to promote integration rather than seg-

regation.”

Turning to the question of “the incremental segre-

gative effect” of the Board’s actions, the court of

appeals affirmed the district court’s finding that the

Board’s discriminatory actions had “systemwide ap-

plication and impact” that justified the district court’s

order of a systemwide remedy (Columbus Pet. App.

198-199).

D. The stay applications to this Court

The Board then applied to this Court for a stay of

the district court’s order. Mr. Justice Stewart denied

the stay, but on further application, on August 11,

1978, Mr. Justice Rehnquist granted a stay of the

district court’s order pending disposition of the

Board’s petition for certiorari, and, if the petition

were granted, until further order of the Court (Co-

lumbus Pet. App. 217). In a brief opinion accom-

panying the order, Mr. Justice Rehnquist stated

(Columbus Pet. App. 213) that in this case and the

Dayton case the court of appeals appeared to have

given this Court’s opinion in Dayton Board of Edu-

cation v. Brinkman, 433 U.S. 406 (1977), “an un-

duly grudging application.” He concluded (Colum-

bus Pet. App. 213-214) that the court of appeals “‘is

apparently of the opinion that presumptions, in com-

bination with such isolated violations, can be used to

justify a systemwide remedy where such a remedy

would not be warranted by the incremental segrega-

tive effect of the identified violations.”

A motion to vacate the stay was then presented

to Mr. Justice Stewart and denied by him. A motion

to convene the Court for a special term to vacate the

stay was denied on August 25, 1978 (Columbus Pet.

App. 218).

II. DAYTON

A. The proceedings to and including this Court’s decision

in Dayton I

Much of the procedural history of this case is re-

counted in this Court’s decision in Dayton I, supra.

At the initial hearing, the district court found a

three-part cumulative violation consisting of (1) sub-

stantial racial imbalance in the schools, (2) the use

of optional attendance zones and (3) the Board’s

rescission of a resolution admitting past discrimina-

tion and calling for various remedial measures (Day-

ton Pet. App. 12a). Based on these findings, the

court ordered limited relief (Dayton Pet. App. 26a-

31a).

Cross-appeals were taken. Plaintiffs contended that

the Board’s discrimination went well beyorid the

three-part violation found by the district court and

warranted systemwide relief. Although the court of

appeals questioned many of the district court’s find-

ings, it found it unnecessary to rule on the question

whether the court had erred in failing to find addi-

tional discrimination (Dayton Pet. App. 56a-67a).

Instead, it held that the desegregation plan ordered

by the district court was inadequate to remedy the

cumulative violation it had identified (Dayton Pet.

App. 48a).

On remand the district court subsequently adopted

a systemwide desegregation plan (Dayton Pet. App.

99a-117a), and the court of appeals affirmed (Dayton

Pet. App. 118a-123a). :

This Court reversed. Viewing the district court’s

findings in the light most favorable to plaintiffs, this

Court concluded that the court of appeals “had no

warrant in our cases for imposing the systemwide

remedy which it apparently did.” 483 U.S. at 417.

“TI]nstead of tailoring a remedy commensurate to

the three specific violations, the Court of Appeals im-

posed a systemwide remedy going beyond their scope.”

Ibid. The Court remanded the case to the district

court to make more specific findings, and, if neces-

sary, to take additional evidence. 433 U.S. at 419.

The Court concluded (4383 U.S. at 420):

The duty of both the District Court and the

Court of Appeals in a case such as this, where

mandatory segregation by law of the races in

the schools has long since ceased, is to first de-

termine whether there was any action in the

conduct of the business of the school board which

was intended to, and did in fact, discriminate

against minority pupils, teachers, or staff. Wash-

ington v. Davis, supra. All parties should be

free to introduce such additional testimony and

other evidence as the District Court may deem

appropriate. If such violations are found, the

District Court in the first instance, subject to

review by the Court of Appeals, must determine

how much incremental segregative effect these

violations had on the racial distribution of the

Dayton school population as presently consti-

tuted, when that distribution is compared to

what it would have been in the absence of such

constitutional violations. The remedy must be

designed to redress that difference, and only if

there has been a systemwide impact may there

be a systemwide remedy.

B. The district court’s decision on remand

On remand, following a supplemental hearing, the

district court issued an opinion denying all relief and

dismissing the complaint (Dayton Pet. App. 142a-

188a). The court found that there was little dispute

concerning the historical discrimination against black

students until the early 1950’s in Dayton (Dayton

Pet. App. 148a). Although it found that the evidence

demonstrated “an inexcusable history of mistreat-

ment” of black children from the early 1900’s through

approximately 1950, the court concluded that plain-

tiffs had failed to meet their burden of proof because

they had not demonstrated the incremental segrega-

tive effect of these practices on the racial distribution

of the current school population (Dayton Pet. App.

149a).

1. Faculty segregation

The court found that until approximately 1950 the

Dayton Board of Education followed a policy of

racially discriminatory faculty assignment under

which black teachers were permitted to teach black

students only (Dayton Pet. App. 151a). The Board

replaced this policy in 1951 with a policy of “dynamic

gradualism” that permitted the introduction of black

teachers into schools having a mixed or white popula-

tion when there was evidence that such communities

were ready to accept black teachers (Dayton Pet.

App. 151a-152a, 195a n.11). As a result of this

policy, each school in the system had at least one

black teacher by 1969 (Dayton Pet. App. 152a). In

1971 the Board reached an agreement with the De-

partment of Health, Education, and Welfare that pro-

vided for faculty desegregation similar to the plan

approved in United States v. Montgomery County

Board of Education, 395 U.S. 225 (1969). Despite

this long history of faculty segregation, the court

found no current segregative effects, concluding that

if the schools to which black faculty members had

been assigned were racially identifiable, it was be-

cause of the composition of their student bodies, not

the composition of the faculty (Dayton Pet. App.

153a-154a).°

2. Attendance zones and boundary changes

Although it had previously found the use of cer-

tain optional attendance zones “embraced desires

motivated by racial considerations” and had “signifi-

cant potential effects in terms of increased racial

separation” (Dayton Pet. App. 8a), the district court

now found no segregative intent or effect in connec-

tion with the option zones affecting neighborhood

schools (Dayton Pet. App. 162a-169a). With regard

to one of the two city-wide high schools, Dunbar,

which opened in 1933 with an all-black staff, a black

principal, and an ali-black student body, and was

maintained as an all-black school until it closed in

* Indeed, the district court apparently did not consider the

policy of dynamic gradualism to be racially discriminatory

(Dayton Pet. App. 152a-153a).

1962, the court held that “the relationship between

the Board’s past segregative acts and the all-black

status of Dunbar High School in 1962 has ‘become

_ so attenuated’ as to be incapable of supporting a find-

ing of de jure segregation warranting judicial inter-

vention” (Dayton Pet. App. 171a, quoting Keyes v.

School District No. 1, supra, 413 U.S. at 211). The

court also found (Dayton Pet. App. 159a, 171la) the

subsequent conversion of Dunbar into all-black Mc-

Farlane Elementary and the opening of the new Dun-

bar High as an all-black school were non-discrimina-

tory because they were consistent with the Board’s

policy of assigning children to the nearest school.

3. Site selection

Between 1950 and 1972 the Board opened 24 new

schools, 22 of which opened with more than 90%

enrollment of students of one race (Dayton Pet. App. |

173a). The court described the Board’s process of

site selection as “a most imprecise science” that “ap-

proached the level of haphazard in some instances”

(Dayton Pet. App. 173a). It concluded (Dayton Pet.

App. 174a-176a) that the defendants’ evidence that

racial considerations played no part in site selections

was virtually undisputed for most schools, and that

in the ease of Roth, Gardendale, Highview, and Miami

Schools, that the preponderance of evidence showed

no segregative intent.°

¢In 1971 the Board reorganized its school structure and

created five middle schools (Dayton Pet. App. 157a). The

court found that the reorganization had both an integrative

and a segregative effect and that there was no evidence of a

segregative purpose (Dayton Pet. App. 158a).

C. The court of appeals’ second decision

The coyrt of appeals reversed, holding many of the

district court’s findings clearly erroneous (Dayton

Pet. App. 189a-217a).

1. The creation of a dual system prior to Brown I

The court of appeals first held that the district

court had erred in concluding (Dayton Pet. App.

75a) that the Dayton Board of Education was not

operating a dual school system at the time of the

decision in Brown v. Board of Education, 347 U.S.

483 (1954) (Dayton Pet. App. 194a-205a). The

court of appeals found that in the 1951-1952 school

year “the Dayton school board pursued an overt pol-

icy of faculty segregation and, through a variety of

measures, endeavored to segregate pupils on a racial

basis” (Dayton Pet. App. 195a).

The court noted that the underlying facts were

essentially undisputed (Dayton Pet. App. 196a). In

the 1951-1952 school year, 77.6% of all the students

in the Dayton system attended schools in which one

race accounted for 90% or more of the students, and

54.3% of the black students attended four schools

that were 100% black (Dayton Pet. App. 197a).

The faculty at each of the four 100% black schools

was 100% black (Dayton Pet. App. 196a). With

only one exception, the faculty at all other schools

in the system was 100% white (ibid.). Until 1951,

the Board’s explicit policy was to assign no black

teacher to a white or mixed classroom (Dayton Pet.

App. 195a). In 1951 the policy was changed to an

equally unacceptable one of “introduc[ing] negro

teachers, gradually, into schools having mixed or

white populations when there is evidence that such

communities are ready to accept negro teachers”

(Dayton Pet. App. 195a n.11).

The court found that the four all-black schools,

which in 1952 served more than half of the black stu-

dents in the Dayton system, had been earmarked as

black schools by official purposeful discriminatory

action.

Garfield was the site of intra-school racial segrega-

tion that began in 1912 (Dayton Pet. App. 198a).

Even after the Dayton Board’s practice was specifically

held to be unlawful in a decision by the Ohio Su-

preme Court in 1926, racial segregation at Garfield

persisted (ibid.). During the 1930’s, the Board per-

mitted white students assigned to Garfield to transfer

to predominantly white schools, so that by 1936 Gar-

field had become all black (Dayton Pet. App. 198a-

199a). The Board then assigned an all-black faculty

to the school, and thereafter Garfield was maintained

as an all-black school (Dayton Pet. App. 199a).

Dunbar was intentionally established as a school

for blacks only, and blacks from throughout the dis-

trict were automatically assigned or induced to at-

tend Dunbar, although in many cases they had to cross

attendance boundaries to do so (Dayton Pet. App.

199a). The Board’s intentional operation of Dunbar

as an all-black school until it closed in 1962 had the

effect of keeping other high schools throughout the

district predominantliy white during those years

(Dayton Pet. App. 200a).

During the 1940’s, the Board permitted white stu-

dents to transfer to predominantly white schools

(Dayton Pet. App. 201a). In 1945 Wogamon closed

with an all-white staff and reopened the following

school year with an all-black faculty and black prin-

cipal (ibid.). Wogamon subsequently became and

remained all black (ibid.).

Similarly, the Board permitted whites to transfer

out of Willard so that by 1925 it was overwhelmingly

black (ibid.). The Board then assigned an all-black

faculty and the remaining whites left (ibid.).

There was also evidence of other officially sanc-

tioned racia! separation. Separate swimming pools

and locker rooms were maintained for black and

white students at Roosevelt High School until ap-

proximately 1950 (Dayton Pet. App. 201a). More-

over, in the late 1940’s and early 1950’s, the Board

operated one-race classrooms in housing projects that ~

were strictly segregated according to race (ibid).

In light of these fundamentally undisputed facts,

the court of appeals found that at least from the

early 1900’s to the early 1950’s Dayton operated two

school systems, one primarily for white students, and

the other primarily for blacks (Dayton Pet. App.

204a-205a). It held that there was “ample evidence

to support the finding that at the time of Brown I

defendants were carrying out ‘a systematic program

of segregation affecting a substantial portion of the

students, schools, teachers, and facilities’” (Dayton

Pet. App. 202a (footnote omitted), quoting Keyes v.

School District No. 1, supra, 413 U.S. at 201). It

held (Dayton Pet. App. 202a-203a; footnote omitted)

that “[t]he district court failed to attribute the proper

legal significance to the deliberate policy of faculty

segregation which, at the time of Brown I, made it

possible to identify a ‘black school’ in the Dayton

system without reference to the racial composition

of pupils,” and to the fact that Garfield, Willard,

Wogamon and Dunbar were segregated due to de-

fendants’ actions. These facts, the court found, “were

sufficient to constitute a prima facie violation of

the fourteenth amendment under the rule of Swann

[v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1, 18 (1971),] and to shift the burden of proof

to defendants.”

The court concluded that the district court also

erred in failing to recognize that discriminatory pur-

pose and intent may be inferred from circumstantial

evidence and may be established by the use of reason-

able presumptions (Dayton Pet. App. 208a). Quoting

Oliver v. Michigan State Board of Education, 508

F.2d 178, 182 (6th Cir. 1974), cert. denied, 421

U.S. 963 (1975), the court observed (Dayton Pet.

App. 208a) that “‘[{a] presumption of segregative

purpose arises when plaintiffs establish that the nat-

ural, probable, and foreseeable result of public offi-

cials’ action or inaction was an increase or perpetua-

tion of public school segregation.’” The court found

(Dayton Pet. App. 204a) that the evidence in the

instant case “clearly establishes that the natural,

probable and foreseeable result of defendants’ actions

was the creation and perpetuation of a dual school

system.” The court also held that the district court

- had ignored the teaching of Keyes v. School District

No. 1, supra, 413 U.S. at 208, that once there is “a

finding of intentionally segregative school board ac-

tions in a meaningful portion of a school system” the

burden shifts to the defendants to show that other

racially imbalanced schools are not the result of in-

tentional segregation.

Employing these standards, the court of appeals

held (Dayton Pet. App. 204a-205a) that the defend-

ants had not shown that the character of the 1954

school district was not the result of their racially seg-

regative actions. It also held (id. at 205a) that the

effect of “defendants’ segregative practices at the

time of Brown I infected the entire Dayton public

school system.”

2. The Board's conduct subsequent to Brown I

The court of appeals concluded (Dayton Pet. App.

205a) that the district court’s failure to recognize

that the defendants were operating a dual system at

the time of the Brown decision had resulted in that

court’s “failure to evaluate properly the Board’s post-

Brown I actions, which must be judged by their

efficacy in eliminating the continuing effects of past

discrimination.” Despite the fact that the defendants

had been under a duty to dismantle this dual system

since 1954, the district court had specifically found

(Dayton Pet. App. 150a, 206a) that “with one ex-

ception * * * no attempt was made to alter the racial

characteristics of any of the schools”; moreover, the

only attempt that was made was a failure. The dis-

trict court, however, “neither charged defendants with

the affirmative duty to eliminate the effects of their

discrimination nor did it place upon the Board the

burden of proving that it had done so” (Dayton Pet.

App. 206a). The court found (ibid.) that the record

not only “demonstrates convincingly that defendants

have failed to eliminate the continuing systemwide

effects of their prior discrimination,” but also that

the defendants “have intentionally maintained a seg-

regated school system down to the time the com-

plaint was filed in the present case.” The court also

found (ibid.) that there was also evidence of actions

by the Board subsequent to 1954 that “actually have

exacerbated the racial separation existing at the time

of Brown I.”

a. Faculty assignments

The court of appeals found that the Board contin-

ued to assign faculty on the basis of race until at

least the 1970-1971 school year, and held that the

district court’s finding to the contrary was clearly

erroneous (Dayton Pet. App. 206a). Moreover, the

Board’s systematic discrimination in faculty assign-

ments made it reasonable to presume that other prac-

tices of the Board were likewise undertaken with

segregative intent (Dayton Pet. App. 207a). For

example, when old all-black Dunbar was closed in

1962, it reopened that fall as the all-black McFarlane

Elementary School, and a new (and overwhelmingly

black) Dunbar High School was opened at the same

time (ibid.). The all-black Garfield and Willard

schools were also closed at this time and most of

their students were assigned to McFarlane or to

other identifiably black schools (Dayton Pet. App.

207a). Both McFarlane and the new Dunbar were

assigned virtually all-black faculties (ibid.).

The court held (ibid.) that the Board had failed

to rebut “the reasonable presuniption that the simul-

taneous assignment of both a predominantly black

faculty and student body at these schools was the

product of segregative intent and an effort to per-

petuate the dual school system extant at the time of

Brown I.”

The court also found (Dayton Pet. App. 209a) that

“[nJowhere in the record have defendants demon-

strated that the present systemwide racial imbalance

would have occurred even in the absence of their

segregative acts.”

3. Optional attendance zones

The court found (Dayton Pet. App. 209a) that the

Board’s use of optional zones for racially discrimina-

tory purposes bolstered the conclusion that racial

imbalance within the Dayton school system was “not

merely adventitious.” The appellate court found that

the district court’s repudiation of its earlier findings

of segregative intent and effect were clearly errone-

ous, and was the result of its failure to apply the

proper standards for determining segregative intent

and to shift the burden of proof to defendants once

plaintiffs made a prima facie case (Dayton Pet. App.

210a).

4. School construction

The court of appeals held the district court’s find-

ing that the Board’s site selections were not segrega-

tive in purpose and effect to be clearly erroneous,

concluding that the Board’s pattern of school con-

struction “unmistakably increased or maintained

racial isolation” (Dayton Pet. App. 21la). The co-

ordinate assignment of faculty on a racial basis rein-

forced the natural inference that these decisions

were racially motivated (ibid.). The court found no

evidence that the Board’s construction practices were

motivated by racially neutral policies (ibid.).

5. Reorganization of grade structure

The court of appeals held (Dayton Pet. App. 213a)

that the district court had erred in failing to recog-

nize the Board’s conversion in 1971 to a system of

middle schools as a component of the Board’s dual

system. That conversion was characterized by the

Ohio Department of Education in a 1971 report as

offensive to the Constitution and degrading to school

children (Dayton Pet. App. 212a). And unrebutted

expert testimony concluded that its effect was to

maintain or increase segregation (Dayton Pet. App.

213a).

Upon consideration of the entire record the court

concluded that (ibid.) :

rather than eradicate the systemwide effects of

[their] dual system extant at the time of Brown I

defendants’ racially motivated policies with re-

spect to the assignment of faculty and students,

use of optional attendance zones, school construc-

tion and site selection, and grade structure and

reorganization perpetuated or increased public

school segregation in Dayton.

Focusing on the effects of these violations, the court

held that the district court had erred in examining

each alleged constitutional violation as if it were an

isolated occurrence and in placing the burden on the

plaintiff to show the precise incremental segregative

effect of each such occurrence (Dayton Pet. App.

215a). Because plaintiffs had shown “a systemwide

pattern of intentionally segregative actions” it was

reasonable to presume that these discriminatory prac-

tices had contributed to segregation throughout the

school system (Dayton Pet. App. 216a). The Board

had not rebutted the presumption that the current

racial composition of the schools had been affected by

the systemwide impact of its segregative acts, and

accordingly the court reinstated the systemwide rem-

edy it had approved on the prior appeal (Dayton

Pet. App. 216a-217a).’

’ This plan was drafted in accordance with an earlier order

of the district court. The remedial order permitted the Board

to choose among various plans and techniques, subject only

to the requirement that each school in the system have no

less than 83% nor more than 68% black students (Dayton

Pet. App. 102a-108a). The court provided that “where a

specific school should deviate further from the foregoing per-

centages by reason of geographic location, the Court will

consider such instances on a school-by-school basis” (Dayton

Pet. App. 104a), and it further provided that “[v]ariations

from the [percentage range] may be permitted in exceptional

_————EEeE————— >

D. The Board’s stay applications

The court of appeals denied the Board’s applica-

tion for a stay of its order on August 21, 1978 (Day-

ton A. VIII). On August 28, 1978, Mr. Justice Stew-

art also denied a stay, and on further application

Mr. Justice Rehnquist denied a stay on August 30,

1978 (ibid.). The plan has therefore remained in

effect.

SUMMARY OF ARGUMENT

Both the Dayton and Columbus school systems

exhibit extreme conditions of racial separation. The

plaintiffs had the burden of showing that these con-

ditions resulted from the Boards’ intentional policy of

segregation. In both cases the record fully supports

the court of appeals’ conclusion that plaintiffs proved

the existence of systemwide policies of intentional

racial segregation.

A. The court of appeals properly began its analy-

sis of the causes of the current conditions in the

Dayton and Columbus schools with a review of the

virtually undisputed evidence that in the early 1900’s

the Boards created separate school systems for white

and black students, which they maintained and oper-

circumstances without destroying the desegregation * * *”

(Dayton Pet. App. 106a). The court granted an exception for

high school juniors and seniors (Dayton Pet. App. 108a).

The Dayton school system is sufficiently compact that exces-

sive travel times are not involved. The court-appointed Master

concluded that the longest travel time should not much exceed

twenty minutes (Dayton A. 39).

ated until at least the 1950’s. In both cases, the

Board isolated most black students in a small enclave

of schools, thereby ensuring that the remainder of

the schools would be exclusively, or predominantly,

white. Moreover, black teachers were assigned only

to schools with black students. Since this evidence

established a systematic program of state-enforced

segregation affecting a substantial portion of the

Dayton and Columbus school districts, the court of

appeals correctly concluded that petitioners were

operating dual systems for white and black students

at the time of the decision in Brown v. Board of

Education, 349 U.S. 294 (1955).

In urging that their conduct at the time of the

Brown decision has little relevance to current condi-

tions, petitioners ignore the crucial point that even

racially neutral policies may effectively maintain and

perpetuate an entrenched dual system. In the face

of the evident potential for perpetuation of their de-

liberately established cual systems, petitioners’ fail-

ure to take meaningful steps to convert these dual

systems to unitary systems violated their constitu-

tional duty to eliminate their unlawful dual systems

“root and branch.” Although the impact of past

segregative acts may eventually become too attenu-

ated to warrant remedial action, petitioners did not

establish that the current racial separation in the

schools was not the result of their past segregative

acts.

B. But the court of appeals did not rest its find-

ings of systemwide discrimination solely on proof

of unremedied historical practices of racial discrimi-

nation. Respondents offered substantial evidence that

the Boards’ intentional discrimination continued to

the present, and the court of appeals expressly based

its findings of systemwide segregation on those re-

cent practices, as well as the past practices just de-

scribed. In determining whether the Boards inten-

tionally maintained segregative policies, the court of

appeals properly evaluated the Boards’ contemporary

practices in light of its findings regarding the 40-

year history of intentional segregation ih the design

and operation of these school systems, which gave

rise to a strong inference that both Boards contin-

ued to practice racial discrimination,

1. The court of appeals attributed substantial

weight to the evidence that until the early 1970’s—

when state and federal enforcement agencies inter-

vened—the Columbus and Dayton Boards continued

to practice overt systemwide racial discrimination in

faculty assignments. The evidence of the Boards’ con-

tinuing assignment of teachers on the basis of race

convincingly rebutted their contention that after the

early 1950’s they abandoned their segregative policies

and adopted a racially neutral neighborhood school

policy. As the court of appeals pointed out in the

Columbus case (Columbus Pet. App. 174), “[o]bvi-

ously it was no ‘neutral’ neighborhood school concept

which occasioned generations of black teachers to be

assigned almost exclusively to black schools until the

Ohio Civil Rights Commission complaint was settled

in July of 1974.”

2. The court of appeals concluded that the Boards

also continued to manipulate their neighborhood

school policies to separate students on the basis of

race. The court found that both the Dayton and

Columbus Boards deviated from the neighborhood

school concept in ways that can rationally be under-

stood only as part of an overall policy to maintain

racial segregation. Both Boards employed optional

attendance zones—which are not consistent with the

neighborhood school concept—in neighborhoods under-

going racial transition, without an adequate educa-

tional or administrative explanation. In Dayton, the

Board operated a district-wide all-black high school

until 1962, when it closed this school and opened a

new school with a virtually all-black student body

and facility. In Columbus, the Board made boundary

changes that removed white residential areas from

predominantly black areas, and operated noncontigu-

ous attendance zones where white students were

bused past black schools. The court found no satis-

factory nonracial explanation for these actions. The

Boards’ construction programs were clearly segrega-

tive in effect. In Dayton, 22 of the 24 schools con-

structed since 1950 opened with a student body that

was 90% or more black or white (Dayton Pet. App.

210a). Particularly in light of their history of de-

liberate segregation, the pattern of the Boards’ rejec-

tion of sites that were compatible with a neighbor-

hood school poiicy and that would have had an inte-

grative effect gave rise to an inference that the

Boards’ decisions were intended to encourage racial

separation. Again, neither Board rebutted this in-

ference.

The court of appeals properly treated the Boards’

choice of policies that had the natural and foresee-

able consequence of creating and maintaining racial

separation as evidence that the Boards had segrega-

tive intent. The court correctly recognized that dis-

parate effect is not the equivalent of purposeful dis-

crimination. But evidence of disparate effect may

provide an important starting point in establishing

the presence of discriminatory purpose.

The segregative effect of the Boards’ policies was

simply one of many factors tending to show the

Boards’ intent. The court of appeals’ findings of seg-

regative intent rested on the patterns that emerged

from both direct and circumstantial evidence estab-

lishing that the Boards’ actions in both cases were

motivated by racial considerations. In characterizing

their acts of discrimination as isolated rather than

systemwide, the Boards apparently assume that a

systemwide policy or practice cannot be shown with-

out noncircumstantial proof, on a _ school-by-school

basis, of racially motivated Board actions. That is

not, and never had been, the plaintiffs’ burden of

proof in a desegregation case. Normal evidentiary

principles apply to the determination whether the

plaintiffs have proved that school officials followed a

general policy of racial discrimination. The court of

appeals correctly concluded that the evidence in these

cases demonstrates systemwide segregation.

Dayton I emphasizes that in formulating a reme-

dial decree in a school desegregation case, the court

must tailor the remedy to fit the nature and extent

of the violation. Since the purpose of the remedy is

to correct the condition that offends the Constitution,

a systemwide remedy may be ordered only where

school officials’ segregative policies have had a system-

wide impact. Applying these principles, the court of

appeals correctly concluded that because of the system-

wide impact of the Boards’ policies, systemwide relief

was warranted. The remedies here were designed to

convert the dual systems to unitary systems, eliminat-

ing all vestiges of prior segregation in Dayton and

Columbus “root and branch.”

Petitioners argue that despite the findings that they

maintained systemwide segregative policies, under

Dayton I respondents had the further burden of prov-

ing the precise degree to which petitioners’ segrega-

tive policies caused the current conditions of racial

separation, wholly apart from other factors such as

residential patterns. In petitioners’ view, respond-

ents failed to carry this burden.

Dayton I does not support petitioners’ claim. Al-

though the opinion in Dayton I did not directly

address the central issue here—the proper alloca-

_ tion of the burden of proof at the remedial stage

when a court is formulating a decree to eliminate all

vestiges of systemwide discrimination “root and

branch”—it does cite and follow Keyes v. School Dis-

trict No. 1, 418 U.S. 189 (1973), and Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S.

1 (1971), which establish the governing principles

here.

1. Keyes and Swann establish that once a system-

wide violation has been shown, a systemwide remedy

will be imposed unless school officials show that some

portion of the racial separation is not attributable to

their discriminatory conduct. Once systemwide dis-

criminatory practices have been proved, the court

should rebuttably presume that those practices

achieved their full potential in contributing to the

current racial separation in the schools. The burden

then shifts to school officials to show the extent to

which racial separation would have existed in the

absence of such discrimination. This is consistent

with the established principle that the perpetrator of

a constitutional wrong has the burden of showing that

his violation was without, or was of only limited, ef-

fect. School officials are in the best position to pro-

duce evidence on this question.

As a practical matter, if plaintiffs were required

to show the precise effects of official discrimination

while school officials who had engaged in systematic

discrimination stood silent, the plaintiffs in school

desegregation cases would often face an insuperable

burden. It is extremely difficult to calculate the

precise effects of a pervasive pattern of discrimina-

tion by school officials. Certainly the effects are not

limited to the immediately perceptible changes in the

racial composition of the student body. The identifi-

cation of schools by race may have a profound recip-

rocal effect on the racial makeup of the surround-

ing neighborhood. Under general remedial principles

the task of proving what would have happened in the

absence of the constitutional violation should be placed

on the wrongdoers, not their victims.

Where it is not possible to separate the effects af

official segregation from other factors that may have

encouraged racial separation, this uncertainty should

not preclude an effective remedy. The victims of

purposeful school discrimination are entitled to a

remedy that eliminates all vestiges of prior discrim-

ination “root and branch.” A systemwide remedy

will accomplish this end, and school officials who be-

lieve a more limited decree will remedy the violations

have the burden of proving that such a decree will

effectively do so.

2. The court of appeals correctly approved system-

wide remedies in these cases, because the Boards did

not establish that less extensive remedies would cure

the “incremental segregative effects” of the system-

wide policies of discrimination on the basis of race.

In each case the court shifted the burden to the

Board to show that the racial composition of the stu-

dent bodies was not caused by the Board’s system-

wide segregative policies. The Boards adopted an

all or nothing approach on the issue of remedy.

Neither demonstrated that any portion of the racial

separation in its district would have occurred in the

absence of its segregative conduct. Although both

Boards contend that the racial composition of the

schools merely reflects the residential patterns in

each city, they offered no proof that the residential

patterns developed independently of the prescribed

racial character of the schools. Respondents—although

it was not their burden to do so—presented undis-

puted expert testimony that a pattern of systematic

school discrimination does affect residential decision-

making.

8. The remedial principles of Keyes and Swann—

which are grounded on considerations of “ ‘fairness’

and ‘policy’”’—are not inconsistent with Dayton /,

and there is no justification for petitioners’ contention

that Keyes and Swann should be overruled. The

principles announced in those cases have proved a

practical and effective means of eliminating the ef-

fects of longstanding pervasive discrimination in vio-

lation of the Fourteenth Amendment. Those decisions

have provided the basis for desegregation plans now

in operation in hundreds of school districts through-

out the United States.

ARGUMENT

THE COLUMBUS AND DAYTON SCHOOL BOARDS EN-

GAGED IN SYSTEMWIDE POLICIES OF INTENTIONAL

RACIAL SEGREGATION

The Columbus and Dayton school systems exhibit

conditions of extreme racial separation. In Columbus,

32% of all public school children are black (Columbus

Pet. App. 19). Yet about 70% of all students at-

tend schools that are more than 80% white or 80%

black (Columbus Pet. App. 18). Of the Columbus

system’s 172 schools, 137 are “racially identifiable’—

that is, their racial compositions are substantially dif-

ferent from the district-wide percentage. One half

of the Columbus schools are more than 90% black

or 90% white (Columbus Pet. App. 163). In Dayton,

slightly less than 50% of all public school children

are black (Dayton A. 34-35). Racial separation is

even more’pronounced in Dayton than in Columbus.

Of the 69 public schools in Dayton, 51 are virtually

all-white cr all-black (Dayton Pet. App. 149a-150a).

The court of appeals correctly recognized (Co-

lumbus Pet. App. 150; Dayton Pet. App. 202a) that

these conditions of racial separation, standing alone,

do not violate the Constitution. See, e.g., Dayton I,

supra, 433 U.S. at 417; Washington v. Davis, 426

U.S. 229, 240 (1976). The plaintiffs in each of these

cases had the burden of proving “not only that seg-

regated schooling exists but also that it was brought

about or maintained by intentional state action.”

Keyes v. School District No. 1, swpra, 413 U.S. at 198.

In these two cases the court of appeals’ findings of

systemwide intentional segregation were premised on

similar subsidiary factual findings. First examining

historical practices, the court of appeals found that

continuously until the early 1950’s both the Dayton

and Columbus school boards had deliberately iso-

lated most black students into small enclaves of all-

black schools (Dayton Pet. App. 202a-203a; Columbus

Pet. App. 155-160). During the same period, the

Boards did not permit black teachers to teach in

white schools (Dayton Pet. App. 202a-203a; Colum-

bus Pet. App. 157-159). Turning to more contem-

porary practices, the court of appeals found that the

Dayton Board and the Columbus Board both con-

tinued to assign faculty by race until the early 1970’s,

and that this discrimination in faculty assignments

ended only upon the intervention of governmental

agencies (Dayton Pet. App. 206a; Columbus Pet.

App. 178-174). As for student assignments since

the 1950’s, the court of appeals found that neither

the Dayton nor the Columbus Board had followed a

consistent neighborhood school policy. Rather, both

engaged in a number of manipulative practices which

were designed to separate the races. Those practices

included, in both cases, discriminatory site selections

for new schools and the use of optional attendance

zones to avoid integration (Dayton Pet. App. 210a-

212a; Columbus Pet. App. 168-173). In addition, the

court concluded that the Dayton Board had reorgan-

ized the system’s grade structure so as to create

middle schools that would increase or maintain seg-

regation (Dayton Pet. AP 212a-2138a). The Co-

lumbus Board, in turn, used a number of classically

segregative devices, including redrawing school

boundary lines, adopting noncontiguous attendance

zones, and busing white students past black schools

(Columbus Pet. App. 194-195). Finally, the court of

appeals found that neither school board took any

meaningful steps to dismantle the dual school ‘sys-

tems they had created (Dayton Pet. App. 213a; Co-

lumbus Pet. App. 198).

Both petitions raise the question whether these

findings constitute a su‘licient predicate for the con-

clusion that the Boards had engaged in systemwide

policies of segregation warranting remedial judicial

action. They argue that in finding there was system-

wide segregation the court of appeals erroneously

gave controlling significance to the Boards’ past seg-

regative practices, and improperly required petition-

ers to shoulder the burden of proving that the cur-

rent racial imbalance is not the result of their past

segregative practices. Finally, petitioners urge that

the court of appeals improperly held conduct designed

to serve legitimate educational objectives to be pur-

posefully discriminatory merely because racial sep-

aration was a foreseeable consequence.

The Dayton Board of Education also challenges

(Br. 26-39) the subsidiary findings of the court of

appeals, arguing that the appellate court erred in set-

ting aside the district court’s findings on the segrega-

tive purpose and effect of the Board’s post-Brown I

conduct. Since our primary concern is the common

legal issues raised by these two petitions, we will not

here undertake a review of the evidence supporting

the court of appeals’ subsidiary factual findings. We

note, however, that after a thorough review of the

record the United States filed an amicus brief in the

court of appeals urging that the district court’s find-

ings in the Dayton case were clearly erroneous, and

we generally concur in respondents’ detailed analysis

(Br. 9-67) of the evidence supporting the court of

appeals’ findings.

A. The Causes of Current Racial Separation In The

Columbus And Dayton Schools Must Be Evaluated

In Light Of The Historical Creation And Maintenance

Of Dual Systems

The court of appeals concluded that from the early

1900’s through the 1950’s, the Columbus and Dayton

Boards of Education unquestionably created and op-

erated dual systems of education. To be sure, Ohio

law prohibited compulsory segregation, and the school

boards therefore could not overtly segregate every

student within the system. But the record shows that

petitioners nonetheless sought to segregate the races

to the greatest possible degree. By a variety of

manipulative devices, each Board established a small

enclave of schools for blacks and was able to isolate

most black students in these schools. The isolation

of black students had the obvious reciprocal effect of

earmarking other schools in both systems as iden-

tifiably for whites. See Keyes v. School District No.

1, supra, 413 U.S. at 201 & n.12. The Boards’ dis-

criminatory intent was also manifested in their strict

policy of assigning black teachers only to schools with

black students. And in Dayton, the intensity of that

Board’s discrimination led the district court to char-

acterize the mistreatment of black students as “in-

humane,” “reprehensible” and “inexcusable” (Dayton

Pet. App. 149a). Not only did the Dayton Board

of Education intentionally confine black children to

a segregated education, it even overtly segregated

swimming pools, locked rooms and athletic competi-

tions (Dayton Pet. App. 201a).

Petitioners scarcely dispute the fact that they prac-

ticed far-reaching and systematic racial discrimina-

tion in student and faculty assignments for many

years, at least until the early 1950’s. They urge,

however, that the court of appeals erred in finding

that they were operating dual systems, and further

erred in finding that these historical practices had

current significance.

1. Petitioners erroneously contend (Columbus Br.

69-70; Dayton Br. 16) that the segregated conditions

they created and maintained could not—even in the

early 1950’s—properly be characterized as “dual sys-

tems.” Petitioners emphasize that Ohio law did not

mandate racial separation, and that many black stu-

dents attended schools with whites. A similar argu-

ment was squarely rejected in Keyes v. School Dis-

trict No. 1, supra, 413 U.S. at 198-205, where there

was no statutory dual system, and this Court held

that evidence of the school board’s deliberate, segre-

gation in Park Hill city schools—affecting 37.69% of

the total black student population, as well as teachers

and staff—sufficiently supported a finding of a dual

system. Where “school authorities have carried out

a systematic program of segregation affecting a sub-

stantial portion of the students, schools, teachers, and

facilities within the school system, it is only common

sense to conclude that there exists a predicate for a

finding of the existence of a dual school system.”

413 U.S. at 201. Unless there is a showing that the

geographic structure of a district or natural bound-

aries divide it into “separate, identifiable and un-

related units,”* Keyes holds that “proof of state-

imposed segregation in a substantial portion of the

district will suffice to support a finding by the trial

court of the existence of a dual system.” 413 U.S.

at 2038.

The records establish that such a systematic pro-

gram of state-imposed segregation in a substantial

portion of the Dayton and Columbus districts existed

at the time of Brown I, and accordingly the court of

appeals correctly concluded that petitioners had op-

erated dual school systems for whites and blacks.

2. Petitioners argue that even if they were op-

erating dual systems at the time of the Brown I de-

cision, in view of the “evidence of a myriad of in-

tervening events and forces” their conduct more than

20 years ago is of little value in determining whether

the Columbus or Dayton schools “were unconstitu-

tionally segregated at the time this case was tried”’

(Columbus Br. 70; see Dayton Br. 16-18).

a. Petitioners ignore the fact that even if it is

assumed that their segregative intent ended in the

early 1950’s, “neutral” practices thereafter could

simply perpetuate and maintain the dual system. “In-

tentional school segregation in the past may have been

a factor in creating a natural environment for the

growth of further segregation.” Keyes v. School Dis-

trict No. 1, supra, 413 U.S. at 211. When a school

board has through pervasive techniques isolated most

black students and faculty in an enclave of schools, the

* There is no contention that Dayton or Columbus is divided

into separate unrelated units. See Dayton Pet. App. 205a n.43.

unmistakable message that these schools are earmarked

for blacks while many others are reserved for whites

“may have a profound reciprocal effect on the racial

composition of residential neighborhoods within a

metropolitan area, thereby causing further racial con-

centration within the schools.” 413 U.S. at 202. Sub-

sequent neighborhood zoning practices, no matter how

scrupulously “neutral,” may have the direct effect of

“further lock[ing] the school system into the mold

of separation of the races.” Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 21

(1971). See also id. at 28. Thus, the effect of build-

ing upon a dual system already in place may be only

to preserve its existence.

b. Moreover, in the face of the clear potential for

perpetuating their dual systems, petitioners took no

meaningful affirmative steps to convert their dual

systems into unitary ones without “ ‘white’ school[s]

and * * * ‘Negro’ school[s], but just schools.” Green

v. County School Board, 391 U.S. 480, 442 (1968).

Petitioners therefore violated their constitutional duty

to eliminate promptly their entrenched dual systems

“root and branch.” Jd. at 438. Nevertheless, they

now argue that their long-standing practices of racial

discrimination and their persistent refusals to elimi-

nate the effects of those practices must be discounted

solely because of the passage of time, and that re-

spondents bear the burden of proving the extent to

which the current conditions of segregation in each

system are causally related to the historical creation

and maintenance of the dual systems.

Keyes provides the full response to these conten-

tions. In Keyes the Court acknowledged that “at

some point in time the relationship between past

segregative acts and present segregation may become

so attenuated as to be incapable of supporting a find-

ing of de jure segregation warranting judicial inter-

vention.” 413 U.S. at 211. But it concluded that

“certainly plaintiffs in a school desegregation case

are not required to prove ‘cause’ in the sense of ‘non-

attenuation.’ That is a factor which becomes rele-

vant only after past intentional actions resulting in

segregation have been established. At that stage, the

burden becomes the school authorities’ to show that

the current segregation is in no way the result of

those past segregative actions.” 413 U.S. at 211 n.17.

Finally, Keyes holds that unless the school board can

prove it had no segregative intent,’ “it can rebut the

prima facie case only by showing that its past segre-

gative acts did not create or contribute to the current

segregated condition.” 413 U.S. at 211.

The court of appeals’ decisions reflect careful ad-

herence to the principles expressed in Keyes. Peti-

tioners contend (Columbus Br. 70-73 & n.38) that

in applying the Keyes presumption, the court of ap-

peals failed to follow Dayton I, which, they argue,

® The Court expressly “reject[ed] any suggestion that re-

moteness in time has any relevance to the issue of intent,”

holding that “[i]f the actions of school board authorities

were to any degree motivated by segregative intent and the

segregation resulting from those actions continues to exist,

the fact of remoteness in time certainly does not make those

actions any less ‘intentional.’”* 413 U.S. at 210-211.

overrules or limits Keyes. To the contrary, however,

although Dayton I does not specifically address the

procedure the lower courts should follow in making

liability findings, it cites Keyes (433 U.S. at 410,

420; id. at 421, 423 (Brennan, J., concurring) ), and

nowhere suggests that in making the “complex factual

determinations” required on remand the district court

shouid not apply the principles established in Keyes.

Accordingly, the court of appeals correctly con-

cluded that neither the Columbus Board nor the Day-

ton Board had shown that its past segregative acts

did not create or contribute to the current segregated

condition of the schools (Columbus Pet. App. 165-

166; Dayton Pet. App. 208a-209a). Thus, even if the

Columbus and Dayton Boards had shown that they

ceased practicing intentional discrimination in the

1950’s, judicial remedial action would have been

warranted.

B. The Boards’ More Contemporary Practices Delib-

erately Perpetuated And Increased Racial Separation

In Their School Systems

But the court of appeals’ findings of systemwide

discrimination in the present cases do not rest solely

on proof of historical practices. Respondents offered

substantial evidence that the Boards’ intentional dis-

crimination continued to the present, and the court of

appeals expressly based its findings of systemwide seg-

regation on those recent practices taken against the

background of the past practices just described. In

making these findings of current segregative policies

and practices, the court of appeals correctly concluded

that the evidence did not support the Boards’ claims

that they were operating a neutral neighborhood

school system, but rather showed an overall policy of

promoting racial separation. The court correctly con-

sidered the fact that racial separation was a foresee-

able effect of a neighborhood school policy as a factor

in determining the Boards’ intent. It did not, as pe-

titioners charge (Columbus Br. 81-95; Dayton Br.

20-26), simply equate intent to discriminate with the

fact of disproportionate impact.

1. The Boards’ current practices were evaluated in

light of their history of discrimination

In determining whether the Boards had maintained

and continued their policies of segregation, the court

of appeals correctly evaluated the Boards’ contem-

porary practices in light of their past discriminatory

practices. As this Court explained in Village of

Arlington Heights v. Metropolitan Housing Corp.,

429 U.S. 252, 267 (1977), in determining whether

invidious discriminatory pu is a motivating

factor, the “historical background” of official action

is an important evidentiary source—‘“particularly

if it reveals a series of official actions taken for

invidious purposes.” Absent some cogent explanation,

it should not be lightly assumed that a school board

that practiced intentional racial discrimination over

a forty-year period suddenly began to act in a totally

neutral fashion. See Keyes v. School District Ne. 1,

supra, 413 U.S. at 209-210.

The court of appeals applied this principle. In the

Dayton case, the court stated (Dayton Pet. App.

197a):

We recognize that racial imbalance in student

attendance is not in itself a constitutional viola-

tion. See Dayton Board of Education v. Brink-

man, supra, 433 U.S. at 413, 417 (1977) ; Wash-

ington v. Davis, 426 U.S. 229, 240 (1976) ; Keyes

v. School District No. 1, 413 U.S. 189, 198

(1973). However, such racial imbalance does

assume increased significance in the historical

context of repeated intentional segregative acts

by the school board directed at the four schools

which were 100 percent black in 1954. See Vil-

lage of Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252, 267

(1977).

See also td. at 207a, 209a. The court likewise made it

clear in the Columbus case that it was undertaking

its review of the school board’s current practices in

the context of their “ ‘historical background’” (Co-

lumbus Pet. App. 166, quoting Village of Arlington

Heights v. Metropolitan Housing Corp., supra, 429

U.S. at 267).

This emphasis on the longstanding history of seg-

regation was entirely proper. Although the member-

ship of school boards changes periodically, and iso-

lated or sporadic acts of discrimination may be caused

by the predilections of individual members, in the face

of long-standing, continuous, and pervasive acts of

racial discrimination, courts should carefully scruti-

nize claims that a school board suddenly experienced

a complete change of heart.

Neither the Columbus nor Dayton Board points to

any event in the early 1950’s indicating that they had

a dramatic change of purposes.” The Boards’ actions

and motivations cannot be neatly compartmentalized

into discrete time frames. Given the largely undis-

puted findings that the Boards had a forty-year his-

tory of pervasive intentional segregation in the de-

sign and operation of their “neighborhood school”

systems through at least the early 1950’s, a strong

inference arose that they continued to practice racial

discrimination in the subsequent operations of those

same systems. See Keyes v. School District No. 1,

supra, 413 U.S. at 209-212. Cf. Hazelwood School

District v. United States, 483 U.S. 299, 309 n.15

(1977), citing, inter alia, 1 J. Wigmore, Evidence § 92

(3d ed. 1940); 2 J. Wigmore, Evidence §§ 302-305,

371, 375 (8d ed. 1940).™

10 For example, neither Board contends that new members

were then elected who proposed to alter significantly the pre-

vious policies. Nor did either Board then openly renounce

its past practices or adopt a formal resolution to achieve

substantial desegregation. Such a renunciation and resolu-

tion were adopted in Dayton in late 1971, but, following the

election of a new board, these actions were rescinded (see

Dayton Pet. App. 180a-185a).

11Jn some circumstances, this Court’s 1954 decision in

Brown v. Board of Education, 347 U.S. 483 (Brown I), might

have introduced new legal obligations and acted as the catalyst

for a fundamental change in school board policy. Unfortun-

ately, even in those areas of the country where Brown I made

compulsory segregation illegal, many schoo! boards acted in

open definance of the decision for more than a decade. See,

e.g., Swann v. Charlotte-Meckleburg Board of Education,

supra, 402 U.S. at 18-14. In any event, Brown I was con-

2. The Boards continued to assign faculty by race

As we have shown (supra, pages 6-7, 29-30), for

two decades following the early 1950’s, the Columbus

and Dayton Boards continued to practice overt and

systemwide racial discrimination in faculty assign-

ments. These practices ended in the early 1970’s be-

cause of intervention by federal and state enforce-

ment agencies. In evaluating the Boards’ contentions

that the continuing racial imbalance in both systems

was the result of a neutral neighborhood school policy,

the court of appeals correctly attributed great weight

to this long history of deliberate racial discrimination

(Columbus Pet. App. 173-174; Dayton Pet. App.

206a-207a). As the court of appeals pointed out in

the Columbus case (Columbus Pet. App. 174), “[o]b-

viously it was no ‘neutral’ neighborhood school con-

cept which occasioned generations of black teachers

to be assigned almost exclusively to black schools until

the Ohio Civil Rights Commission complaint was

settled in July of 1974.”

The court of appeals’ emphasis on the Boards’

overt racial discrimination in faculty assignments is

consistent with this Court’s recognition that faculty

discrimination is “among the most important indicia

of a segregated system. * * * Independent of student

sistent with prior Ohio law, which since 1887 had prohibited

intentional school segregation. The Columbus and Dayton

Boards had violated the unambiguous state prohibition

against segregation since the early 1900’s. There is no basis for

assuming that the Columbus and Dayton Boards ended prac-

tices that they already knew to be illegal because Brown I

held school segregation also violated federal law.

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, * * * a prima

facie case of violation of substantive constitutional

rights under the Equal Protection Clause is shown.”

Swann v. Charlotte-Mecklenburg Board of Education,

supra, 402 U.S. at 18. As the Ninth Circuit has

succinctly explained (Kelly v. Guinn, 456 F.2d 100,

107 (1972), cert. denied, 413 U.S. 919 (1978) (foot-

note omitted) :

[T ]Jeacher assignment is so clearly subject to the

complete control of school authorities, unfettered

by such extrinsic factors as neighborhood resi-

dential composition or transportation problems,

that the assignment of an overwhelmingly black

faculty to black schools is strong evidence that

racial considerations have been permitted to in-

fluence the determination of school policies and

practices. “[T]he school district’s obvious regard

for race in assigning faculty members and ad-

ministrators is a factor which may be con-

sidered in assessing motives underlying past de-

cisions which resulted in segregation.” Davis v.

School District of Pontiac, Inc., 443 F.2d 578,

576 (6th Cir. 1971).

We have argued above that courts should closely

scrutinize the claim of a school board with a history

of pervasive discrimination that its policies suddenly

changed to complete neutrality at a particular time.

Here, the suggestion of the Columbus and Dayton

Boards that an abrupt shift in purpose occurred in

the early 1950’s is refuted by the Boards’ continuing

assignments of teachers on an overtly racial basis.

Petitioners’ behavior was not suddenly transmuted

into racial neutrality, and no plausible reason has

been offered to explain why they would have con-

tinued invidiously motivated practices as to teachers

but not as to students (to whom a pattern and prac-

tice of discriminatory teacher assignments is in-

evitably a lesson in itself). Indeed, the Dayton Board

publicly articulated its systemwide discriminatory

policy of not allowing blacks to teach white students

until the community was “ ‘ready to accept negro

teachers’”” (Dayton Pet. App. 195a-196a n.11).”

A strong inference arises that a school board that so

readily yielded to actual or assumed community op-

position to integration in faculty assignments con-

tinued to allow similar impermissible considerations

to influence its student assignment policies.

3. The Boards continued to manipulate their “aeigh-

borhood school” policies to separate students by

race

The Columbus and Dayton Boards have attempted

to explain their student assignment policies since the

early 1950’s as based entirely on the “neighborhood

school” concept. In our view, even scrupulous ad-

herence to neighborhood attendance zone assignments

would not necessarily have absolved petitioners from

responsibility for the creation and maintenance of a

% The Board’s policy also provided that it would “ ‘not

attempt to force white teachers, against their will’ ” to teach

“‘in schools now in negro areas that are now staffed by

negroes’” (Dayton Pet. App. 195a-196a n.11).

dual system. Of course, the disparate impact of a

policy of operating neighborhood schools does not by

itself deprive minority students of the equal protec-

tion of the laws. See Washington v. Davis, supra.

As the Court observed in Swann v. Charlotte-Meck-

lenburg Board of Education, supra, 402 U.S. at 28,

“Tajll things being equal, with no history of dis-

crimination, it [may] well be desirable to assign

pupils to schools nearest their homes.” * But Swann

also recognized that in school systems that have been

“deliberately constructed and maintained to enforce

racial segregation,” such as Columbus and Dayton,

“all things are not equal” and neighborhood school

assignments may operate to maintain an artificially

created racial separation. bid. The use of a neigh-

borhood school policy by a school board that created

a dual system may be a further constitutional viola-

tion if the board intentionally uses the policy to re-

inforce segregation.* And, for the reasons stated

8 Congress has likewise stated in Sections 202 and 206(ihe Ce’

Equal Educational Opportunities Act of 1974, 20 U.S.C.

1701, 1705, that “the neighborhood is the appropriate basis

for determining public school assignments,” though it has

also provided that the assignment of students to neighborhood

schools “for the purpose of segregating students on the basis

of race, color, sex, or national origin” constitutes a violation

of “equal protection of the laws.”

% The Equal Educational Opportunities Act expressly de-

clares that no state shall deny equal education opportunities

to any individual by either (1) “the deliberate segregation by

an educational agency of students on the basis of race, color,

or national origin among or within schools,” or (2) “the

above, segregative intent is manifested when the

school board maintains a purposefully discriminatory

pattern of faculty assignments in such schools.

But the present cases do not raise the question

whether scrupulous adherence to an otherwise neutral

neighborhood school policy, standing alone, may con-

stitute the deliberate maintenance of a dual system.

For here, as in Keyes, the record demonstrates that

“the ‘neighborhood school’ concept has not been main-

tained free of manipulation.” Keyes v. School Dis-

trict No. 1, supra, 413 U.S. at 212.

a. The court of appeals correctly concluded that

the Columbus and Dayton Boards readily departed

from strict neighborhood school assignments when

increased racial separation would result. For ex-

ample, both Boards made extensive use of optional

attendance zones in neighborhoods undergoing racial

transition (see pages 8-9, 30, supra). As the district

court recognized in the Dayton case, optional zones are

inconsistent with the concept of neighborhood school

assignments (Dayton Pet. App. 12a-13a). In cases

where school boards, particularly those with a history

of discrimination, have offered students the choice of

attending schools of substantially differing racial com-

positions, the lower courts have properly inferred

segregative intent absent some persuasive non-racial

explanation. See, e.g., United States v. School Dis-

failure of an educational agency which has formerly practiced

such deliberate segregation to take affirmative steps, con-

sistent with part 4 of this subchapter, to remove the vestiges

of a dual school system.” Section 204(a) and (b), 20

U.S.C. 1708(a) and (b).

trict of Omaha, 521 F.2d 530, 540-543 (8th Cir.),

cert. denied, 423 U.S. 946 (1975), and cases cited

therein. As this Court pointed out in Village of

Arlington Heights v. Metropolitan Housing Corp.,

supra, 429 U.S. at 267 (footnote omitted), “[s]ub-

stantive departures” from usual policies may be rele-

vant in determining intent, “particularly if the fac-

tors usually considered important by the decision-

maker strongly favor a decision contrary to the

one reached.” Neither the Columbus nor Dayton

Boards came forward with adequate educational or

administrative explanations for the continued use

of optional zones in areas undergoing racial transi-

tion. Accordingly, the court of appeals correctly con-

cluded that the use of such zones was motivated by

segregative intent (Dayton Pet. App. 209a-210a; Co-

lumbus Pet. App. 175, 179, 182-183).

The Columbus and Dayton Boards also deviated

from neighborhood school assignments in other ways

that can rationally be understood only as part of an

overall policy to maintain racial segregation. In Day-

ton, the Board maintained Dunbar High School as a

district-wide school for black students until 1962

(Dayton Pet. App. 199a-200a). When this school

was closed, a new Dunbar High School was opened

with a virtually all-black student body and faculty

(Dayton Pet. App. 207a). In Columbus, the Board

made boundary changes that removed white resi-

dential areas from predominantly black zones and op-

erated noncontiguous zones in which white students

were bused past black schools (Columbus Pet. App.

179-183, 184-186). The court of appeals found that

no adequate non-racial explanation was offered for

any of these practices.

Thus, the records show that neither the Columbus

nor the Dayton Boards pursued a bona fide neighbor-

hood school policy. As the court of appeals succinctly

put it (Columbus Pet. App. 175), “the Columbus

Board’s ‘neighborhood school concept’ was not ap-

plied when application of the neighborhood concept

would tend to promote integration rather than segre-

gation.” This observation applies equally to the Day-

ton Board (see Dayton Pet. App. 209a-210a).

b. As the Columbus and Dayton school systems

expanded in the 1950’s and 1960’s, both boards under-

took ambitious school construction programs. These

programs resulted in extreme patterns of racial sep-

aration in both systems. In Columbus, 87 of the 103

schools built since 1950 opened as racially identifiable

(Columbus Pet. App. 173). In Dayton, 22 of the 24

schools constructed since 1950 opened 90% or more

black or white (Dayton Pet. App. 210a).

The court of appeals correctly recognized that a

close examination of this pattern of school construc-

tion was “ ‘a factor of great weight’” in determin-

ing whether the school systems were deliberately seg-

regated (Columbus Pet. App. 168, quoting Swann v.

Charlotte-Mecklenburg Board of Education, supra,

402 U.S. at 21; see Dayton Pet. App. 210a-211a).

School construction programs of this magnitude ordi-

narily will have a profound effect on segregation or

integration within the system as a whole. As this

Court explained in Swann, the consequences of school

construction programs are far-reaching (402 U.S.

at 20-21):

The construction of new schools and the closing

of old ones are two of the most important func-

tions of local school authorities and also two of

the most complex. * * * The result of this will

be a decision which, when combined with one

technique or another of student assignment, will

determine the racial composition 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 the patterns of residential development

of a metropolitan area and have important im-

pact on composition of inner-city neighborhoods.

In the past, choices in this respect have been

used as a potent weapon for creating or main-

taining a state-segregated school system. In ad-

dition 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 ac-

companied by building new schools in the areas

of white suburban expansion farthest from Negro

population centers in order to maintain the sepa-

ration of the races with a minimum departure

from the formal principles of “neighborhood zon-

ing.” Such a policy does more than simply influ-

ence the short-run composition of the student

body of a new school. It may well promote segre-

gated residential patterns which, when combined

with “neighborhood 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 construction and abandonment is thus a

factor of great weight.

As we have shown, the post-1950 pattern of school

construction in Columbus and Dayton was undisput-

ably segregative in effect. Both Boards were, of

course, fully knowledgeable of the racial residential

and school attendance patterns within their systems,

and were thus aware of the potential impact that

their construction decisions would have on integra-

tion or segregation. They had the option of making

these construction decisions with the goal of achiev-

ing meaningful integration, or for the purpose

of perpetuating or aggravating existing racial

separation.

Particularly in light of the Boards’ practices of

deliberate segregation, the pattern of rejection of

alternate sites that were compatible with a neighbor-

hood school policy and that would have had an in-

tegrative, rather than a segregative effect, raised an

inference that racial separation was a factor moti-

vating the Boards’ construction decisions. Neither

Board rebutted this inference. In Columbus, the dis-

trict court identified several instances where the

Board had rejected integrative sites without offering

any explanation for their choice (Columbus Pet. App.

21-24). The court of appeals held that the district

court had properly relied in part on these instances

in finding deliberate systemwide segregation (Co-

lumbus Pet. App. 173). In the Dayton case, although

the district court did not credit it, respondents also

offered evidence that the Board had rejected sites that

would have had an integrative effect (see Dayton

Pet. App. 174a-176a). The inference that these sites

were rejected because of segregative intent was

strengthened by evidence of the “coordinate racial

assignment of professional staffs to [newly con-

structed] schools and additions on the basis of the

racial composition of the pupils served by the schools”

(Dayton Pet. App. 210a). No racially neutral plan

for school construction in Dayton was proved. To

the contrary, the district court described the process

of site selection in Dayton as “a most imprecise sci-

ence” that “approached the level of haphazard in

some instances” (Dayton Pet. App. 173a). In view

of the strong history of segregation in the Dayton

schools, the use of such a subjective decision-making

process reinforced the inference that racial considera-

tions played a role in the Board’s construction de-

cisions. See Castaneda v. Partida, 430 U.S. 482, 497

(1977).

ce. The Boards do not seriously contend they pur-

sued policies intended to promote integration, but they

deny that they had any intent to discriminate. They

argue that racial considerations were irrelevant to

their decisions and were subordinated to the achieve-

ment of valid educational objectives, and that the

court of appeals erroneously equated their decision

to pursue a neutral neighborhood school policy—where

the foreseeable effect was racial separation—with in-

tentional segregation.

In both the Dayton and Columbus cases the court

of appeals treated the Boards’ adoption of policies

that had the natural and foreseeable consequences of

creating and maintaining racial separation as pro-

bative of the Boards’ segregative intent (see Dayton

Pet. App. 203a-204a; Columbus Pet. App. 173). And

in Dayton, the court stated, quoting Oliver v. Michi-

gan State Board of Education, 508 F.2d 178, 182 (6th

Cir. 1974), cert. denied, 421 U.S. 963 (1975), that

(Dayton Pet. App. 2038a) :

A presumption of segregative purpose arises

when plaintiffs establish that the natural, prob-

able, and foreseeable result of the public officials’

action or inaction was an increase or perpetua-

tion of public school segregation. The presump-

tion becomes proof unless defendants affirma-

tively establish that their action or inaction was

a consistent and resolute application of racially

neutral policies.

We agree with petitioners that awareness of dis-

parate effect is not the same as purposeful discrimi-

nation. But proof that a challenged cfficial act has a

disparate effect on a particular group may be im-

portant in ascertaining the intent of the decision-

maker.” As the Court stated in Village of Arlington

1° In his concurring opinion in Washington v. Davis, supra,

426 U.S. at 253, Mr. Justice Stevens explained the importance

of disparate effect in proving intent as follows:

Frequently the most probative evidence of intent will

be objective evidence of what actually happened rather

Heights v. Metropolitan Housing Corp., supra, 429

U.S. at 266: F

Determining whether invidious discriminatory

purpose was a motivating factor demands a sen-

sitive inquiry into such circumstantial and direct

evidence of intent as may be available. The im-

pact of the official action—whether it “bears

more heavily on one race than another,” Wash-

ington v. Davis, supra, at 242—may provide an

important starting point.

Where disparate effect is very difficult to explain

except as the product of purposeful discrimination,

the evidence of effect may for all practical purposes

establish the violation. Gomillion v. Lightfoot, 364

U.S. 339 (1960); Guinn v. United States, 238 U.S.

347 (1915).% And in some circumstances, evidence

of a grossly disproportionate effect on a protected

class justifies shifting the burden to the state to

produce evidence that this effect was not the product

of purposeful discrimination. See Castaneda v. Par-

tida, 430 U.S. 482, 494 & n.13 (1977); Washington

than evidence describing the subjective state of mind of

the actor. For normally the actor is presumed to have

intended the natural consequences of his deeds. This is

particiularly true in the case of governmental action

which is frequently the product of compromise, of col-

lective decisionmaking, and of mixed motivation.

1¢ Nothing shows intent as well as a demonstration that

a series of decisions all have a similar disparate effect. See

Yick Wo v. Hopkins, 118 U.S. 356 (1886). Such a demonstra-

tion shows a cumulation of disadvantage inexplicable on

grounds other than the forbidden but unstated characteristic.

v. Davis, supra, 426 U.S. at 241; Alexander v.

Louisiana, 405 U.S. 625, 682 (1972).

Accordingly, several courts of appeals have held

that, once plaintiffs demonstrate that particular offi-

cial action naturally and foreseeably resulted in seg-

regation in the schools, that evidence creates a re-

buttable presumption that the action was taken with

a discriminatory purpose, shifting the burden to the

school officials of coming forward with evidence prov-

ing that they had no segregative intent. See, ¢.g.,

United States v. Texas Education Agency, 579 F.2d

910, 912-914 (5th Cir. 1978), petition for cert.

pending, No. 78-897; United States v. School District

of Omaha, 521 F.2d 530, 535-5386 (8th Cir.), cert.

denied, 423 U.S. 946 (1975). See generally Note,

Reading the Mind of the School Board: Segregative

Intent and the De Facto/De Jure Distinction, 86

Yale L.J. 317 (1976).

But ultimately the court of appeals’ decisions in

these cases did not rest on a presumption that the

Boards intended to bring about the racial separation

that was the natural and foreseeable consequence of

its actions.” Although the segregative impact of

their policies “provide{d] an important starting

“ As the court commented in the Columbus case (Columbus

Pet. App. 173), although an inference of segregative intent

could be drawn from the evidence that the vast majority of

the new schools opened amd remained racially identifiable,

“the record actually requires no reliance upon inference” be-

cause of the evidence that the Board deliberately selected

segregative sites and refused to consider alternatives that

would have had an integrative effect.

point” in determining the Boards’ intent, ultimately

“a clear pattern, unexplainable on grounds other than

race,” emerged from the court’s examination of all

the “circumstantial and direct evidence of intent.”

See Village of Arlington Heights v. Metropolitan

Housing Corp., supra, 429 U.S. at 266. The court’s

findings of intent to segregate rested not on a pre-

sumption, but on a pattern of both direct and indirect

evidence of overt racial intent illuminated by the

historical context of the Boards’ actions.“

d. In sum, the court of appeals applied proper

legal standards and correctly concluded that the

Tn granting a stay in the Columbus case, Mr. Justice

Rehnquist stated his concern that the court of appeals had

“employed legal presumptions of intent to extrapolate system-

wide violations from what was described * * * as ‘isolated’

instances.” Columbus Board of Education v. Penick, No. A-

184 (Aug. 11, 1978) (Rehnquist, J., in chambers), slip op. 3.

In the portion of the Columbus opinion to which Mr. Justice

Rehnquist referred, the ccurt of appeals commented (Co-

lumbus Pet. App. 175) that the post-Brown I instances of

Board gerrymandering of attendance boundaries and estab-

lishing optional attendance areas “can properly be classified

as isolated in the sense that they do not form any systemwide

pattern.” The court found, however, that these instances “are

significant in indicating that the Columbus Board’s ‘neighbor-

hood school concept’ was not applied when application of the

neighborhood concept would tend to promote integration

rather than segregation.” This comment in no way under-

mines the court’s finding of systemwide intentional segrega-

tion. These particular instances of segregative conduct—

which were in one sense “isolated”—were not the primary

source of its finding of a violation. Instead they supple-

mented and gave color to the more systematic and far-

reaching effects of the Board’s pre-1954 segregation, and the

post-1954 practices of discriminatory school site selections

and faculty assignments.

Columbus and Dayton Boards continued to pursue a

systemwide policy of deliberate racial discrimination

from the early 1900’s through the dates of trial.

The Boards attempt now to characterize their acts of

discrimination as discrete or isolated. The thrust of

petitioners’ argument is that a finding of system-

wide segregation cannot be made unless there is non-

circumstantial proof, on a school-by-school basis, of

invidiously motivated Board action. No such insur-

mountable burden of proof has ever been placed on

plaintiffs in a school desegregation lawsuit. Disputed

questions of intent in cases such as these are not

easy to resolve, see Dayton I, supra, 433 U.S. at 414;

and a “sensitive inquiry” must be made “into such

circumstantial and direct evidence of intent as may

be available.” Village of Arlington Heights v. Metro-

politan Housing Corp., supra, 429 U.S. at 266. But

when this inquiry is made, the plaintiffs’ burden of

proof is no different than in any other civil case; and

the courts should apply normal evidentiary principles

in answering the question whether it is more prob-

able than not that the school boards followed a

general policy of racial discrimination in assigning

students and faculty. Given the strength of the proof

adduced in these cases, the court of appeals correctly

found that petitioners followed a general policy of

racial discrimination.

SYSTEMWIDE REMEDIES ARE APPROPRIATE IN

THESE CASES BECAUSE THEY ARE TAILORED TO

CURING THE CONDITION THAT OFFENDS THE CON-

STITUTION

Courts are not at liberty in school desegregation

cases to command results merely to achieve socially

desirable ends. As this Court explained in Dayton I,

supra, 433 U.S. at 419-420:

The power of the federal courts to restructure

the operation of local and state governmental

entities “is not plenary. It ‘may be exercised

“only on the basis of a constitutional violation.” ’

[Citations omitted.] Once a constitutional vio-

lation is found, a federal court is required to

tailor ‘the scope of the remedy’ to fit ‘the nature

and extent of the constitutional violation.’ ”

[Citations omitted. ]

* * * Tf [constitutional] violations are found,

the District Court in the first instance, subject

to review by the Court of Appeals, must deter-

mine how much incremental segregative effect

these violations had on the racial distribution

of the Dayton school population as presently con-

stituted, when that distribution is compared to

what it would have been in the absence of such

constitutional violations. The remedy must be

designed to redress that difference, and only if

there has been a systemwide impact may there be

a systemwide remedy. Keyes, 413 U.S., at 213.

The task of a remedial decree “is to correct, by a

balancing of the individual and collective interests,

the condition that offends the Constitution.” Swann

v. Charlotte-Mecklenburg Board of Education, supra,

402 U.S. at 16. See also, e.g., Milliken v. Bradley,

433 U.S. 267 (1977); Hills v. Gautreaux, 425 U.S.

284 (1976).”

Applying these principles, the court of appeals cor-

rectly concluded that because of the systemwide im-

pact of the Boards’ discriminatory policies, system-

wide relief was warranted.

A. The Columbus And Dayton Boards Are Under An

Affirmative Constitutional Duty To Convert The Dual

Systems They Created And Maintaizxed Into Unitary

Systems Without “White” Schools And “Black” Schools

Dayton I reaffirms the holding in Keyes that where

school officials’ segregative policies have a “system-

wide impact” the court should order “systemwide

relief.” 433 U.S. at 420. In these cases, the condition

found to offend the Constitution is the creation and

maintenance of a dual system of education, with

each Board operating one set of schools primarily

for white students and another set of schools pri-

marily for black students. Under this Court’s re-

peated holdings, the only remedy that will cure this

condition is prompt conversion to a unitary system

in which there are no longer white schools or black

* Congress has expressed a similar judgment. Section 213

of the Equal Educational Opportunities Act of 1974, 20 U.S.C.

1712, provides that “[i]n formulating a remedy for a denial

of equal educational opportunity or a denial of the equal pro-

tection of the laws, a court * * * shall seek or impose only

such remedies as are essential to correct particular denials of

equal educational opportunity or equal protection of the laws.”

schools but “just schools.” Green v. County School

Board, supra, 391 U.S. at 442. See also, ¢.g., Keyes

v. School District No. 1, swpra, 418 U.S. at 200 &

n.11; Swann v. Charlotte-Mecklenburg Board of Edu-

cation, supra, 402 U.S. at 15. In order to eliminate

all vestiges of the dual system “ ‘root and branch,’ ”

“all-out desegregation” must be undertaken. Keyes

v. School District No. 1, supra, 413 U.S. at 213-214.

The remedial decree must therefore seek “to achieve

the greatest possible degree of actual desegregation,

taking into account the practicalities of the situa-

tion.” Davis v. Board of School Commissioners, 402

U.S. 38, 37 (1971).

The remedies challenged in these cases are faith-

ful to these principles. They @ffect conversions to

unitary systems by removing the racial identifiability

of schools which have heretofore been identified and

operated as schools intended for whites or blacks.

They do not require fixed mathematical norms,” but

instead allow reasonable ranges for flexibility. There

is no claim that either decree is impractical. Finally,

2° The Columbus Board argues (Br. 79-81) that the district

court ordered strict mathematical ratios. However, the district

court’s remedial order did nothing more than suggest that a

staff plan that brought every school within 15% of the

district-wide norm could be used as a starting point (Co-

lumbus Pet. App. 11). This range is reasonably broad. It per-

mitted ample flexibility and thus was an appropriate “starting

point in the process of shaping a remedy, rather than an in-

flexible requirement.” Swann, supra, 402 U.S. at 25. The court

made clear that excentions to this already flexible range

would be allowed on grounds of practicality (Columbus Pet.

App. 105-106).

it is undisputed that neither decree will require ex-

cessive travel times for students.”

B. The Boards Did Not Meet Their Burden Of Proving

That Less Extensive Relief Would Fully Eradicate

The Effects Of Their Systemwide Discrimination

Petitioners contend that despite the findings that

they had systemwide segregative policies, and that

extreme conditions of racial separation are now

found in both school systems, no relief should have

been ordered. They urge that the racial separation in

the schools simply corresponds to the racial patterns

in the residential areas served by the schools. Under

Dayton I, they urge, respondents had the burden of

proving not only the systemwide nature of peti-

tioners’ intentionally discriminatory policies, but also

the precise degree to which these segregative policies

caused the current conditions of racial separation,

wholly apart from other factors such as residential

patterns. In petitioners’ view, respondents failed to

carry this burden.

1. When systemwide discrimination has been shown,

the burden shifts to the defendants to establish

that the remedy need not be systemwide

In holding that judicial remedies must be addressed

to the incremental segregative effects of a school

board’s discriminatory policies, Dayton I did not

21 Petitioners do not contend that the remedies ordered

here are inconsistent with the remedial priorities stated in

Section 214 of the Equal Educational Opportunities Act of

1974, 20 U.S.C. 17138.

establish new principles. Rather, it reiterated the

settled precept that a remedy must be tailored to

cure the condition that offends the Constitution by

eradicating the effects of the violation. When there

have been only isolated and sporadic acts of school

board discrimination affecting a limited number of

schools or students, a similarly limited remedy is

appropriate. On the other hand, when there has been

a general policy of discrimination in the operation

of the school system as a whole, pervasively elimi-

nating whatever opportunities existed for substantial

racial integration (see Keyes, supra, 413 U.S. at

201-203), a systemwide remedy will generally be

required. As Dayton I reaffirms “[t]here is no doubt

that federal courts have authority to grant appropri-

ate relief of this sort when constitutional violations

on the part of school officials are proved,” 433 U.S.

at 410, but “only if there has been a systemwide

impact may there be a systemwide remedy.” Id. at

420. The Court therefore reversed the systemwide

remedy ordered in Dayton I because it plainly went

far beyond the scope of the isolated violations relied

on by the court of appeals. 433 U.S. at 417; see also

id. at 422 (Brennan, J., concurring).

Dayton I does not directly address the central

issue here, which is the proper allocation of the

burden of proof at the remedial stage when a court

must enter a decree which eliminates all vestiges of

systemwide violations “root and branch.” But Dayton

I does cite and follow Swann and Keyes, which

establish the governing principles. 433 U.S. at 410,

420.”

Keyes and Swann establish that once a systemwide

violation has been shown, a systemwide remedy will

be imposed unless school officials can establish that

some portion of the racial separation in the system

is not attributable to their discriminatory conduct.

The Court addressed precisely this point in Swann,

stating (402 U.S. at 26):

Where the school authority’s proposed plan for

conversion from a dual to a unitary system con-

22 Petitioners rely (Columbus Br. 58-59) heavily on the

per curiam decisions in School District of Omaha v. United

States, 483 U.S. 667 (1977), and Brennan v. Armstrong, 433

U.S. 672 (1977). Despite petitioners’ arguments to the con-

trary, neither case is inconsistent with our reading of Dayton

I. In both cases, uncertainty as to the scope of the constitu-

tional violations precluded affirmance of findings that there

had been systemwide discrimination. In Omaha, the court of

appeals was directed to reconsider the evidentiary presump-

tions that it had employed to determine intent in light of the

intervening decision in Arlington Heights. Upon reexamina-

tion of the violations, the court of appeals was also directed

to reconsider whether « systemwide remedy was warranted.

488 U.S. at 668-669. In Brennan, no remedy had yet been

ordered. But the district court’s finding of a systemwide vio-

lation appeared inconsistent with a specific finding that the

Milwaukee Board’s boundary and construction decisions (a

key element in the alleged violations) were entirely racially

neutral. See Armstrong v. Brennan, 589 F.2d 625, 635-636

(7th Cir. 1976). Notwithstanding this patent inconsistency,

the court of appeals upheld the conclusory finding of segre-

gative intent by affording the district court a “presumption of

consistency.” 539 F.2d at 635-686; see 433 U.S. at 672. The

case was therefore remanded to redetermine the scope of the

actual violations so that a proper remedy could be developed

commensurate with those violations. 438 U.S. at 672-673.

templates the continued existence of some

schools that are all or predominately 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 discrimina-

tory action on their part.

See Keyes v. School District No. 1, swpra, 413 U.S.

at 211 n.17.

Once systemwide racially discriminatory practices

have been proved, it is proper for the court rebut-

tably to presume that those practices achieved their

full potential as a contributing factor to the current

racial imbalance in student attendance patterns. The

burden should then shift to the school officials to show

the extent to which racial separation would have

existed in the absence of the discrimination. For it is

ordinarily the school board that is most likely to have

access to the information necessary to demonstrate

the effects of its racial discrimination, and to be in

the best position to establish what conditions would

have been but for official discrimination on the basis

of race. And it is, after all, the very illegality of the

school officials’ behavior and their refusal to dis-

charge their constitutional duty promptly to eradi-

cate the effects of their violations that created the

uncertainty in measuring the damage caused by those

violations. As a practical matter, if plaintiffs are

required to demonstrate not only the existence of a

general policy of discrimination but also the specific

current effects of that policy, in many cases they will

face an insuperable burden since the defendants will

often be able to suggest other factors that might have

encouraged racial separation in the schools. The per-

petrators of racial discrimination should not be per-

mitted to stand silent while their victims are required

to shoulder so heavy a burden.

Indeed, it is the established rule that the perpe-

trator of a constitutional wrong must bear the burden

of proving that his violation was without, or was of

only limited, effect. See, e.g., Village of Arlington

Heights v. Metropolitan Housing Corp., supra, 429

U.S. at 270-271 n.21 (proof of racially discriminatory

purpose would “have shifted to the Village the burden

of establishing that the same decision would have

resulted even had the impermissible purpose not been

considered”) ; Mt. Healthy City Board of Education v.

Doyle, 429 U.S. 274, 287 (1977). The same rule is

applied where the cause of action is statutory. See,

e.g., Franks v. Bowman Transportation Co., 424 U.S.

747, 771-772 (1976) ; Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 123-125 (1969); NLRB

v. Gissel Packing Co., 395 U.S. 575 (1969). And see

generally W. Prosser, Law of Torts §52 (4th ed.

1971).

For example, when a broad-based pattern of racial

discrimination in employment is shown, all minority

class applicants are presumptively entitled to awards

of full retroactive seniority. Franks v. Bowman

Transportation Co., supra, 424 US. at 772-773;

Teamsters v. United States, 431 U.S. 324, 358-

362 (1977). Proving whether each applicant would

have qualified under neutral and valid stand-

ards, whether there were other more qualified ap-

plicants, and what the applicant’s performance on the

job would have been if he were hired is necessarily

a difficult and uncertain task. This Court has held

that the burden of proof on such matters is properly

placed on the wrongdoer, not the victims, even though

the remedy sought will directly affect the interests

and expectations of incumbent employees. Franks v.

Bowman Transportation Co., supra, 424 U.S. at 772-

773 & n.382, 777-778.”

Similarly, it will often be impossible to calculate

the precise effects of a pervasive pattern of discrimi-

nation by school officials. Certainly those effects are

not limited to immediately perceptible changes in the

racial composition of the specific schools that were

the subject of the plaintiffs’ proofs. Once a pattern

and practice of discrimination by the school board

*s The district court in Dayton therefore erred in conclud-

ing that the plaintiffs in a school desegregation case must

carry the burden of proving the effects of official discrimina-

tion because the interests of “innocent” children and parents

would be affected (see Dayton Pet. App. 146a-147a). Indeed

the interests of the parents and children in these cases ave

affected far less dramatically than the interests of the in-

cumbent employees in Franks, since the relief respondents

seek will not deprive any child of an opportunity to attend

school, although many children may not attend the school in

their own neighborhoods. Moreover, while the expectations

of the employees in Franks were contractually secured, a

school board has no obligation to continue a neighborhood

school policy.

has been established, the inference arises that other

acts may have been motivated by racial considera-

tions. Cf. Teamsters v. United States, supra, 431

U.S. at 359 & n.45, 362. School officials might have

adopted different operating policies—perhaps not even

favoring the neighborhood school concept—but for

their consideration of the factor of race. And al-

though petitioners contend that the racial separation

in the Dayton and Columbus schools is the result of

residential patterns, not school segregation, racial

residential patterns do not develop wholly indepen-

dently of the operation of a dual school system. The

earmarking of schools by race “may have a profound

reciprocal effect on the racial composition of resi-

dential neighborhoods within a metropolitan area,

thereby causing further racial concentration within

the schools.” Keyes v. School District No. 1, supra,

413 U.S. at 202. Where it is not possible to sepa-

rate the effects of the operation of a segregated

school system from the other factors that may also

have increased racial separation in the schools, “[¢]on-

siderations of ‘fairness’ and ‘policy’” dictate that

this uncertainty should not preclude an effective

remedy. See Keyes v. School District No. 1, supra,

413 U.S. at 214.”

24'The Third Circuit recently reached precisely this conclu-

sion in a unanimous en banc decision. In Evans Vv. Buchanan,

582 F.2d 750, 765 (3d Cir. 1978), petitions for cert. pending,

Nos. 78-671, 78-672, the court upheld an order remedying

pervasive inter-district violations, despite the defendants

The principle that the risk of uncertainty should

not be borne by the victims of illegal action is par-

ticularly applicable in cases, such as these, where

the plaintiffs seek to vindicate rights that are at the

core of the Fourteenth Amendment. The victims of

purposeful school segregation are entitled to a remedy

that eliminates the effects of discrimination “root

and branch.” A decree acting upon the school sys-

tem as a whole will plainly achieve that end. A sys-

temwide remedy will not only remove the racial iden-

tifiability of the dual system but it will also visibly

rectify the stigma of inferiority which is a product

of the pervasive violations. If a school board wishes

contention that it was not possible to identify the precise in-

cremental effects of their segregative conduct:

We hold that, in a case such as this, where there is an

historical pattern of signficant de jure segregation with

pervasive inter-district effects, where a facially reason-

able plan is proposed to remedy those effects, where the

defendant itself admits that it is not feasible to separate

out the incremental segregative effects of the consti-

tutional violations from the segregative effects of demo-

graphic changes, where the defendant itself is in the

best position to ascertain what the pattern of segrega-

tion would have been “but for” the constitutional viola-

tions, and where the defendant has dragged its heels and

obstructed progress toward desegregation for twenty-six

years, then the burden of proof shifts to the defendant.

Thus the defendant, if it opposes the remedy put for-

ward by the plaintiff or the district court, must show the

incremental segregative effects of the constitutional vio-

ations, and must show how the proposed remedy goes

beyond that incremental impact. To hold otherwise would

be tantamount to holding that the plaintiffs are without

remedy.

to contend that a less inclusive decree would purge

all taints of its proven systemwide racial discrimina-

tion, it has the burden to propose and justify such

a decree.

2. Since the Dayton and Columbus Boards did not

establish that a less extensive remedy would cure

the effects of their segregative pclicies, systemwide

remedies were appropriate

The court of appeals, following the principles an-

nounced in Keyes and Swann, properly placed the

burden on petitioners to show that despite the sys-

temwide nature of their segregative conduct, a sys-

temwide remedy was not required. The appellate

court also recognized that the remedy should be de-

signed to cure what this Court in Dayton I called the

“incremental segregative effect” of discrimination in

the schools. As the court of appeals explained (Day-

ton Pet. App. 214a), “[t]he purpose of the remedy

is to eliminate the lingering effects of intentional con-

stitutional violations and to restore plaintiffs to sub-

stantially the position they would have occupied in

the absence of these violations.” * The record in each

25 Petitioners seize on other portions of the court’s discus-

sion that, they urge, misconstrue the phrase “incremental

segregative effect”? (Dayton Br. 40-41; Columbus Br. 59-60).

In the Dayton case, the court stated (Dayton Pet. App. 214a-

215a) :

The word “incremental” merely describes the manner in

which segregative impact occurs in a northern school

case where each act, even if minor in itself, adds incre-

mentally to the ultimate condition of segregated schools.

The impact is “incremental” in that it occurs gradually

case supports the court of appeals’ conclusion that

petitioners failed to show that a remedy that was not

systemwide would be effective to eliminate the incre-

mental effects of their segregative policies.

In the Dayton case, the court of appeals, citing

Keyes, held (Dayton Pet. App. 216a) that “[w]here

plaintiffs prove, as here, a systemwide pattern of

intentionally segregative actions by the defendants,

it is the defendants’ burden to overcome the pre-

sumption that the current racial composition of the

school population reflects the systemwide impact of

those violations.” “Nowhere in the record,” the court

found (ibid.), had defendants “rebutted this pre-

sumption.” The court found (Dayton Pet. App. 216a-

217a) that “[t]he impact of defendants’ practices

over the years instead of all at once as in a case where

segregation was mandated by state statute or a pro-

vision of a state constitution.

Similarly, in the Columbus case the court stated (Columbus

Pet. App. 197):

It is clear to us that the phrases “incremental segre-

gative effect” and “systemwide impact” employed in the

Dayton case require that the question of systemwide im-

pact be determined by judging segregative intent and

impact as to each isolated practice, or episode. Each

such practice or episode inevitably adds its own “in-

crement” to the totality of the impact of segregation.

Although these statements, standing alone, do not clearly

define the concept of “incremental segregative effect,” the

court of appeals evinced a clear understanding that a re-

medial order should cure only the “incremental segregative

effects,” that is, it should (Dayton Pet. App. 214a) “restore

plaintiffs to substantially the position they would have

occupied in the absence of these violations.”

with respect to the assignment of faculty and stu-

dents, use of optional attendance zones, school con-

struction and site selection, and grade structure and

reorganization clearly was systemwide in that the ac-

tions perpetuated and increased public school segre-

gation in Dayton.”

In the Columbus case the court of appeals affirmed

the district court’s findings and its remedial order.

The district court found (Columbus Pet. App.

61) that “[dJefendants have not proved that the

present; admitted racial imbalance in the Columbus

Public Schools would have occurred even in the ab-

sence of their segregative acts and omissions * * *.” *

After this Court’s decision in Dayton I, the district

court reviewed and reaffirmed this finding, conclud-

ing (Columbus Pet. App. 95; citation omitted) :

Defendants had ample opportunity at trial to

show, if they could, that the admitted racial im-

balance of the Columbus Public Schools is the re-

sult of social dynamics or of the acts of others

for which defendants owe no responsibility. This

they did not do.

Accordingly, the district court held (Columbus Pet.

App. 75) that if the Columbus Board proposed a plan

2° The court rejected petitioners’ claim that segregation

in housing alone accounted for the segregated condition of

the schools. It found (Columbus Pet. App. 58) that “the

actions of the school authorities have had a significant im-

pact upon the housing patterns. The interaction of housing

and the schools operates to promote segregation in each. It

is not now possible to isolate these factors and draw a pic-

ture of what Columbus schools or housing would have looked

like today without the other’s influence.”

that would not affect some of the predominantly or

exclusively white schools in the district, the Board

would have to establish that the racial composition

of those schools “is not the result of present or past

discriminatory actions or omissions of defendant pub-

lic officials or their predecessors in office.” The court

recognized (ibid.) the difficulty of the Board’s task

of “attempt[ing] to roll back the clock at this point

and determine what the school system would look

like now had the wrongful acts and omissions dis-

cussed earlier in this opinion never occurred.” The

court subsequently rejected the limited remedial plans

proposed by petitioners on the ground that petitioners

had failed to carry their burden of proving that the

racial imbalance in the schools excluded from those

plans was not the result of their discriminatory con-

duct (Columbus Pet. App. 102-103, 105). The court

of appeals upheld the district court’s findings and

affirmed its systemwide remedial order (Columbus

Pet. App. 196-200, 207).

The record in each case supports the lower courts’

findings. As the district court observed in the Co-

lumbus case (Columbus Pet. App. 102), petitioners,

because of their interpretation of Dayton I, submitted

an amended plan that affected only the schools spe-

cific y referred to in the district court’s liability

opinion, and did not make any attempt to “shoulder

the burden of showing that the ainended plan’s re-

maining one-race schools are not the result of present

* 99 27

or past discriminatory action on their part * *

The Dayton Board likewise adopted an all or nothing

approach on the question of remedy, premised on its

contention that no systemwide violation had been

established.”

Despite the fact that in both cases petitioners’ pri-

mary argument is that the racial imbalance in the

schools resulted from residential patterns, not the

segregative policies of the schools, neither Board pre-

sented evidence that its practices of racial discrimina-

tion did not affect residential patterns.

In contrast, in both cases plaintiffs—although it

was not their burden to do so—presented undisputed

expert testimony describing the various ways in

which a policy of discrimination in schools affects

residential decisionmaking (see Dayton R. I 1425,

1447-1450, 1472-1473, 1599-1601, 1605-1606, 1684-

1686; Columbus A. 294-296, 341-348, 353-355). This

27 The Columbus Board now relies on a law review article

(Columbr ®r. 77 n.41) to refute the undisputed expert testi-

mony ‘Ms influence residential decisionmaking. This

post-ti. to show what petitioners failed to prove at

the trial 1. _. should be rejected. Again relying on secondary

sources, the Columbus Board argues that economics accounts

for up to 50% of residential segregation. However, the undis-

puted expert testimony is that economics can account for only

a small portion of residential segregation (Columbus A. 293-

294). See also Farley, Res: ntial Segregation And Its Impli-

cations For School Integration, 39 Law & Contemp. Prob. 164,

174-177 (1975) ; K. Taeuber, Patterns of Negro-White Resi-

dential Segregation (Rand Corp. Jan. 1970).

28 Respondents’ brief in the Dayton case describes the argu-

ments on this point to the court of appeals (Br. 133-135).

evidence showed, for example, that schools that are

operated as disproportionately black in racial com-

position are commonly perceived as inferior schools.

Because the quality of schools is an important factor

in home-buying decisions, school board action that

causes a school to become identified as a black school

may well influence residential movement. Also, the

very fact that a school board practices racial dis-

crimination exerts a powerful moral influence on the

community, affecting community attitudes and con-

duct.

In sum, the record supports the court of appeals’

conclusion that no showing was made that part or

all of the racial separation and imbalance in the

Dayton or Columbus systems was not attributable

to petitioners’ discriminatory policies. Petitioners

failed to prove their claim that the racial separation

in their districts was caused, in whole or substantial

part, by residential patterns existing independent of

the segregative policies of school officials. Accord-

ingly, the court properly approved systemwide

remedies.

3. The remedial principles of Keyes and Swann, upon

which these decisions rest, should be reaffirmed

Petitioners seek to impose on the plaintiffs in

school desegregation cases the burden of proving,

with mathematical certainty,” school by school

2° Dayton I does not suggest that the effects of a system-

wide violation must be determined with mathematical cer-

tainty. Indeed, the same day that Dayton I was decided, this

throughout a district, the precise degree to which a

schoo! board’s widespread racially discriminatory con-

duct affected the racial composition of the student

body. A similar approach was rejected in Keyes,

where this Court explained (413 U.S. at 200, 208-

209):

We have never suggested that plaintiffs in school

desegregation cases must bear the burden of

proving the elements of de jure segregation as

to each and every school or each and every stu-

dent within the school system.

* * * * *

[A]t that point where an intentionally segrega-

tive policy is practiced in a meaningful or sig-

nificant segment of a school system, as in this

case, the school authorities cannot be heard to

argue that plaintiffs have proved only “isolated

and individual” unlawfully segregated actions.

In that circumstance, it is both fair and reason-

able to require that the school authorities bear

the burden of showing that their actions as to

other segregated schools within the system were

not also motivated by the segregative intent.

Much of petitioners’ argument constitutes an

attack on the remedial principles of Keyes and

Swann, which, they contend, are inconsistent with

Court approved a remedy for systemwide discrimination

providing compensatory education for minority students, even

though it was impossible to determine the level of educational

achievement those students would have attained absent the

school board’s discrimination. Milliken v. Bradley, 433 U.S.

267 (1977). See also Hutto v. Finney, 437 U.S. 678 (1978).

Dayton I. As we have shown, the remedial principles

announced in those cases are fully consistent with

Dayton I. Moreover, those principles are, as this

Court stated in Keyes (413 U.S. at 209), grounded

on considerations of “ ‘fairness’ and ‘policy,’” and

designed to provide a practical and effective means of

eliminating longstanding and pervasive segregation

of the public schools in violation of the Fourteenth

Amendment. Petitioners have suggested no justifi-

cation for overruling these decisions, which have been

“considered maturely and recently” (Runyon v.

McCrary, 427 U.S. 160, 186 (1976) (Powell, J., con-

curring) ), and are both sound and consistent with

generally applicable remedial principles.

There is an additional compelling reason for ad-

hering to those principles. Based upon a review of the

reported decisions and Department of Justice files,

we have determined that approximately 200 school

districts with a combined enrollment of more than

5 million students are presently operating under

court ordered desegregation plans that are premised

in whole or in part on the remedial principles of

Swann and Keyes. In addition, the Department of

Health, Education, and Welfare has advised us that

it has obtained desegregation plans from more than

200 additional school districts based on the Swann

and Keyes decisions. Overruling or limiting Swann

and Keyes would call into question the validity of

every one of these plans. The potential for disrupting

settled expectations is enormous.

Since the court of appeals correctly, applied the

principles announced in this Court’s prior decisions,

its judgments should be affirmed.

CONCLUSION

The judgments sf the court of appeals should be

affirmed.

Respectfully submitted.

LAWRENCE G. WALLACE

Acting Solicitor General *

Drew S. Days, III

Assistant Attorney General

SARA SUN BEALE

Assistant to the Solicitor General

BRIAN K. LANDSBERG

ROBERT J. REINSTEIN

IRVING GORNSTEIN

Attorneys

APRIL 1979

* The Solicitor General is disqualified in these cases.

GU. &. GOVERNMENT PRINTING OFFICE; 1979 290785 373

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