# Amicus Curiae Brief — Freeman v. Pitts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0719%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1992 - **Citation:** 503 U.S. 467 ## Text 4 OCTOBER TERM, 1990 ROBERT R. FREEMAN, et al., (202) 371-1212 June 21, 1991 Petitioners, 3 WILLIE EUGENE PIrTs, et al., i Respondents. t ON WRIT OF CERTIORARI TO THE UNITED STATES p COURT OF APPEALS FOR THE ELEVENTH CIRCUIT & BRIEF FOR THE LAWYERS’ COMMITTEE (a FOR CIVIL RIGHTS UNDER LAW AS | AMICUS CURIAE IN SUPPORT OF RESPONDENTS i Herbert M. Wachtell, Co-Chairman Norman Redlich* ‘ William H. Brown III, Co-Chairman Stephen R. Neuwirth es Norman Redlich, Trustee Jeffrey I. Lang < Barbara R. Arnwine WACHTELL, LIPTON, ROSEN ~ Thomas J. Henderson & KATZ > Paul Holtzman 299 Park Avenue E, LAWYERS’ COMMITTEE FOR New York, New York 10171 : CIVIL RIGHTS UNDER LAw (212) 371-9200 1400 Eye Street, NW ee : . Burke Marshall ; Washington, DC 20005 127 Wall Street New Haven, Connecticut 06520 (203) 432-4953 Counsel for Amicus Curiae * Counsel of Record rs ‘ t F ie - TABLE OF CONTENTS SEEN ned bedndeweied escdssesbusedecanieess Il. THE AFFIRMATIVE OBLIGATION TO ELIMINATE THE VESTIGES OF DE JURE SEGREGATION AS FAR AS PRACTICA- BLE EXTENDS TO ALL ASPECTS OF A SCHOOL SYSTEM, AND CANNOT BE ACCOMPLISHED OR REVIEWED ON AN SIC EA, DAZED 2. ccccccccccccceces A. Incremental determinations of ‘‘unitary’’ status would be inconsistent with all prior decisions of this Court.................. 1. Dowell set forth the workable stan- dards that do not allow an incremental approach to determining when a school system has achieved ‘‘unitary”’ status . 2. This Court has consistently recognized that the racial identification of schools results from interrelated features of a \ single system that cannot be isolated . from each other or subject to divisible PAGE Il. 3. This Court’s decisions are in full accord with the empirical findings of educators and social scientists ........ B. Incremental findings of unitary status would frustrate the transition to unitary school systems mandated by Brown and all subsequent decisions of this Court ....... 1. Incremental findings of unitary status would allow vestiges of de jure segrega- tion to survive the termination of court jurisdiction in a school district ....... Incremental unitary findings would preclude future use of programs that implicate several facets of the school a a ed 3. Incremental review of unitary status would give rise to repeated and pro- Eo vc cuestecues ences C. The vestiges of de jure segregation in DeKalb County have had interrelated seg- regative effects, and cannot be considered eee eee tas peeteesees THE DEKALB COUNTY SCHOOL SYSTEM REMAINS UNDER AN AFFIRMATIVE DUTY TO’ REMEDY, TO THE EXTENT PRACTICABLE, CURRENT RACIAL IDENTIFIABILITY OF THE SYSTEM’S Nee ceuenobeccce A. The demographic changes that have occurred in DeKalb County cannot shield the school authorities from responsibility for remedying existing racial identity in the school system—including in the area of i ccccedeneercicecesee PAGE 12 14 14 16 17 18 20 22 ili B. Where a school board that has not com- pleted the transition to a unitary system is not obligated to implement further affirm- ative remedial steps, school authorities, when they do act, remain obligated to take no action that would impede completion of IS i Cee scree sind pseabensées¥cevicvecsees PAGE iv TABLE OF AUTHORITIES Cases: PAGE Adams v. United States, 620 F.2d 1277 (8th Cir.), cert. Goniad, 440 U.S. Gab TI etee o cccccccvccccccnces 17, 27n* Board of Educ. of Oklahoma City v. Dowell, _ * > GS SF ERE ee ee passim Bradley v. School Bd., 382 U.S. 103 (1965) ......... 4, 10 Brown v. Board of Education, 347 U.S. 483 Ss 60804060 Gapcabowsasds cthenneddceedawes 2, 6, 7, 9 Brown v. Board of Education, 349 U.S. 294 SED 64:50 esebacsnnseenbuernerasestnssesse enka 2, 4, 9 Clark v. Board of Educ., 705 F.2d 265 (8th Cir. 1983). 17 Columbus Bd. of Educ. v. Penick, 443 U.S. 449 CCUG diese bautheekdnbhacenkeeGuswssenbeseuas passim Davis v. Board of School Comm’rs, 402 U.S. 33 CP iid cvansaees aks beunede tens snecs ebkss estas 4, 10 Davis v. East Baton Rouge Parish School Bd., 721 f 8. go ot rere ere 22 Davis v. School District, 309 F. Supp. 734 (E.D. Mich. 1970), aff'd, 443 F.2d 573 (6th Cir.), cert. denied, et ee OD , Pee rr errr ee 27n* Dayton Bd. of Educ. v. Brinkman (Dayton II), 443 Ss ME os 6cavedewsec cedueun dneenkeeneees passim Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), aff’d, Ge BE We Ee 00:00 ob dcddcticansceseseiutenes 27n* Green v. New Kent County School Bd., 391 U.S. 430 CRs vcnavdvsseseadsdebheedsanneaeesnuaneouse passim PAGE Hart v. Community School Bd., 383 F. Supp. 699 (E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d Cir. 1975). 27n* Keyes v. School District No. 1, 413 U.S. 189 PiCth iid hig eeeete ieee an bate eee. passim Lee v. Macon County Bd. of Educ., 616 F.2d 805 (Sth es 6c Ce deasdebeeeenedendenesbucusces cue 22 Milliken v. Bradley (Milliken I1), 433 U.S. 267 (1977) 28 Morgan v. Burke, 926 F.2d 86 (Ist Cir. 1991) ....... 18 Morgan v. Nucci, 831 F.2d 313 (ist Cir. 1987) ...... 18 NAACP vy. Lansing Bd. of Educ., 559 F.2d 1042 (6th Cir.), cert. denied, 434 U.S. 997 (1977) ........... 27n* Pasadena Bd. of Educ. v. Spangler, 427 U.S. 424 DE mL LR eAE On aKdne dad ebenee sadn Chnaneawos 12 Penick v. Columbus Bd. of Educ., 429 F. Supp. 229 SS GU ice cdnccancecccnceceeweseanwnd 24, 26 Rogers v. Paul, 382 U.S. 198 (1965)........... 4, 9, 10, 15 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 Ss a Ls ck boo dae eae dbee ober cuonbeekoasen passim United States v. Board of School Comm’rs, 573 F.2d Ge Gens a6e0es0 ae dn eeone succes 27n* United States v. Montgomery Bd. of Educ., 395 U.S. PEE Las 4 GueNaucakveehens 68045 aedee eta 4, 10, 15 United States v. Scotland Neck Bd. of Educ., 407 U.S. EP ye rr rs Pre 16, 29 United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055 (1988).......... 27n* vi PAGE Vaughns v. Board of Educ., 758 F.2d 983 (4th Cir. 66 6600044 6ObNOARGA CS RddA edhe eS deKOO Cede 22 Wright v. Council of Emporia, 407 U.S. 451 Dc, tiddesobddatede dunt tasddbeadanadaess 15-16, 29 Other Authorities: Billingsley, et al., ‘‘School Segregation and Residential Segregation: A Social Science Statement,’’ in School Desegregation: Past, Present, and Future (W.G. Stephan & J.R. Feagin, eds.) (1980)......... 14n*, 25, 26 A. Bryk, V. Lee and J. Smith, ‘‘High School Organi- zation and its Effects on Teachers and Students,’’ in Choice and Control in American Education, Vol. 1 (W.H. Clune and J.P. White, eds.) (1990)......... 12-13 G. Forehand and M. Rogasta, ‘‘A Handbook for Inte- grated Schooling,’’ U.S. Dept. of Health, Education re 13, 14 W.D. Hawley, et al., Assessment of Current Knowl- edge About the Effectiveness of School Desegrega- tion Strategies, Vanderbilt University Study, Vol. 1 nae hahe essen nnneeebekesss baneeed 4a keene 14 W.D. Hawley, ‘‘Equity and Quality in Education: Characteristics of Effective Desegregated Schools,”’ in Effective School Desegregation (W.D. Hawley, ED ih 6 ooh hb 4nd bb5 0 eke hed bs 6ekssdeddesss 13 Hughes, Gordon and Hillman, Desegregating Ameri- a Sree re Tr TTT TTT Te 13 G. Orfield, Must We Bus? Segregated Schools and Pie FOS GFF occ ccvccwesccccccccescesees 14n* D. Pearce, Breaking Down Barriers: New Evidence on the Impact of Metropolitan School Desegregation on Housing Patterns (1960). ......ccccccccccccccccess 27 Vii S. Purkey and M. Smith, ‘Effective Schools—A Review,’’ 83(4) Elementary School Journal 440 R. Scott and J. McPartland, ‘‘Desegregation as National Policy: Correlates of Racial Attitudes,’’ 19 Amer. Educ. Research J. 397 (1984) .............. Sheehan, ‘“‘A Study of Attitude Changes in Desegre- gated Intermediate Schools,’’ 53 Sociology of Educa- ae ES 8 ONE Oh0K 4b hh 6H KE Tee We EdeERKEKOS Tauber, ‘‘Housing, Schools, and Incremental Segrega- tive Effects,’’ 441 Annals of the American Academy of Political and Social Science 157 (1979) ......... Tauber, Demographic Perspectives on Housing and School Segregation, 21 Wayne L. Rev. 833 (1975).. Tauber, ‘‘School Desegregation and Racia! Housing Patterns’’ in New Directions for Testing and Mea- surement: Impact of Desegregation (D. Monti, ed.) SE i cd ewediccecdanebececteasseedseeukseuseues Taylor, Brown, Equal Protection and the Isolation of the Poor, 95 Yale L.J. 1700 (1986) ............... U.S. Commission on Civil Rights, Racial Isolation in Ge FUE BEGG CIGGFTD occ cccvccacccccccccacecs U.S. Commission on Civil Rights, Fulfilling the Letter and Spirit of the Law: Desegregation of the Nation’s Cc occa dasnuesebeuaqueeeseeaes PAGE 13 14n* 26 27 27 13 IN THE Supreme Court of the United States OCTOBER TERM, 1990 No. 89-1290 _> ROBERT R. FREEMAN, et al., Petitioners, —_V— WILLIE EUGENE PITTS, et al., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH! CIRCUIT > BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS CONSENT OF PARTIES Petitioners and respondents have consented to the filing of this brief, and their letters of consent are being filed sepa- rately herewith. INTEREST OF AMICUS The Lawyers’ Committee for Civil Rights Under Law (‘‘Lawyers’ Committee’) was established in 1963 at the request of President Kennedy to help assure civil rights to all Americans by affording legal services otherwise unavailable to minorities and the poor pursuing claims for equal treat- ‘ ment under the law. The Lawyers’ Committee is a non-profit private corporation that has enlisted the services of thousands of members of the private bar in cases involving voting, edu- cation (including school desegregation), employment, hous- ing, municipal services, the administration of justice and law enforcement. The Lawyers’ Committee has a long history of direct sup- port of and participation in cases in the federal courts fur- thering school desegregation. This Court’s decision will undoubtedly have significant implications in other school desegregation cases. Amicus submits that its experience in school desegregation litigation enables it to provide a perspec- tive different from the parties and other amnici on the issues before this Court. SUMMARY OF ARGUMENT The DeKalb County public schools were segregated in 1954. They were segregated in 1969, when this case began, and they remain segregated today. At no time has petitioner school board fulfilled the obligation imposed on it by Brown v. Board of Education, 347 U.S. 483 (1954), 349 U.S. 294 (1955), and Green v. New Kent County School Bd., 391 U.S. 430 (1968), to achieve a unitary school system. Contrary to what it would have this Court believe now, it is not operating a school system overwhelmed by demographic changes that frustrated its efforts to achieve ‘‘a unitary system in which racial discrimination would be eliminated root and branch.”’ Swann vy. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971). It made no such efforts. To the contrary, as the Court below said (887 F.2d at 1440-41): Despite our [previous] admonishments [in this case], the district court ruled that the DeKalb County School Board (‘‘DCSS’’) is under no affirmative duty to take steps to desegregate an acknowledged segregated system in the area of student assignment because the DCSS closed all of its de jure black schools in 1969. * * * - 3 Black students constitute 47 percent of the DCSS popu- lation. Despite the system’s racial balance, 50 percent of the black students attend schools with black populations of more than 90 percent. Similarly, 27 percent of the DCSS’s white students attend schools with white popula- tions of more than 90 percent. The DCSS operates a segregated school system. Under these circumstances the district court was plainly wrong, under the decisions of this Court, in denying any fur- ther relief to plaintiffs except in the limited area of faculty reassignments, and in refusing further supervision of the school board other than in that regard. The Court below accordingly was plainly right in reversing the district court and requiring it to see to it that the school board continue to take ali practicable steps to achieve a unitary system. As this Court recently said, the inquiry was properly directed to the question ‘‘whether [the school board has] complied in good faith with the desegregation decree since it was entered,’’ which it clearly has not, and ‘‘whether the vestiges of past discrimination [have] been eliminated to the extent practica- ble,’’ which certainly has not happened. See Board of Educ. of Oklahoma City v. Dowell, as ani S08 ax oe 630, 638 (1991). Petitioner seeks to avoid the force of the application of these principles in two ways. The first, as the Court below noted, is by reliance on its action of closing the black schools of its dual system in 1969, thus taking a preliminary step towards the elimination of racial student assignments. In this way petitioners persuaded the district court to treat the mat- ter of student assignments as a closed book that could not be reopened despite the overwhelming evidence of racial segrega- tion in the system, and despite petitioner’s admitted failure to eliminate the vestiges of de jure segregation in other facets of school operations, such as faculty, staff, and facilities. See Green v. New Kent County School Bd., supra, 391 U.S. at 435; Board of Educ. of Oklahoma City v. Dowell, supra, 111 S. Ct. at 638. Secondly, petitioner relies on the evidence of concededly large population moves into the county in the 4 past decade and a half, causing significant changes in the size and racial composition of the school population. Neither of these factors should be held to excuse petitioner from its well-established duty to eliminate vestiges of de jure racial segregation and achieve a unitary system in which racial discrimination is eliminated rvot and branch. With regard to the first point, the decisions of this Court since Green, supra, have consistently required school boards and supervising district courts to treat the task of eliminating the vestiges of racial discrimination in terms of the entire school system rather than its component parts. De jure segre- gation is a system-wide constitutional violation. The remedy requires examining and treating all aspects of the school sys- tem as one problem, needful of coordinated attention. See Brown v. Board of Education, 349 U.S. 294 (1955) (Brown Il); Green, supra; Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971). See also Davis v. Board of School Comm’rs, 402 U.S. 33, 37 (1971); Rogers v. Paul, 382 U.S. 198 (1965); Bradley v. School Bd., 382 U.S. 103, 105 (1965); United States v. Montgomery Bd. of Educ., 395 U.S. 225, 231 (1969). Thus in Keyes v. School District No. 1, 413 U.S. 189 (1973), the Court expressly applied a presumption that discriminatory action in a particular aspect of the system would necessarily spread to and affect other components of the system. Jd., 413 U.S. at 196, 201-2, 214. See also Dayton Bd. of Educ. v. Brinkman (Dayton IT), 443 U.S. 526 (1979); Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 467 (1979). The system approach was reiterated in Dowell this year. See Dowell, supra, 111 S. Ct. at 636, 638. Here petitioner’s fail- ure to deal with its whole system in a unitary fashion is admitted. See Point I, infra. Wholly apart from this Court’s repeated insistence on system-wide analysis and treatment, the incremental approach urged by petitioner and embraced by the district court will not work in practice. Achievement of a unitary system means elimination, to the extent practicable, of racially identifiable schools. It is common experience that racial segregation in faculty and staff, such as that petitioner has permitted to per- sist in ‘his case, along with disparities in facilities and resources, contributes to the perception of schools as 5 **black’’ or ‘‘white.’’ Thus, the need for system orientation, rather than an incremental, piece-by-piece approach, is recog- nized and endorsed by th» extensive literature on school desegregation. See Point I, infra. The extensive demographic changes that have taken place in DeKalb County since the entry of the judgment in this case in 1969 do not diminish the legal and constitutional obliga- tions of petitioner. The school authorities did not cause the onrushing tide of people into DeKalb County. But during this period of influx the schools remained racially identifiable because of the decisions of the DeKalb County school board which never eliminated faculty and staff segregation and, notwithstanding purportedly racially neutral student assign- ment practices in 1969 and 1970, assigned black students pre- dominantly to those schools where black faculty and staff were located. Given that ‘‘people gravitate toward schools,”’ as this Court has recognized, the school authorities cannot walk away from their responsibility for the persistence of racially identifiable schools whose racial stamp encouraged, and was reinforced by, the diversion of the flow of people into two streams—white and black. See Point II, infra. Petitioner thus remains responsible for taking all practica- ble steps to remedy existing racial identification of the DeKalb County schools—including in the area of student assignments—until all vestiges of de jure segregation have been eradicated. Throughout the transition to a unitary sys- tem, the DeKalb County school board is also obligated to take no action, with respect to any aspect of the school sys- tem, that would impede the completion of the transition. The Court below correctly left the question of exactly what steps are necessary to eliminate coupletely the dual system to the school board itself, and, in the event of default by school authorities in that responsibility, to the discretion of the dis- trict court. See Point II, infra. 6 ARGUMENT I THE AFFIRMATIVE OBLIGATION TO ELIMINATE THE VESTIGES OF DE JURE SEGREGATION AS FAR AS PRACTICABLE EXTENDS TO ALL ASPECTS OF A SCHOOL SYSTEM, AND CANNOT BE ACCOMPLISHED OR REVIEWED ON AN INCREMENTAL BASIS Since Brown v. Board of Education, this Court has consist- ently reaffirmed the affirmative duty of school boards to complete the transition from a de jure segregated school sys- tem to a system in which the vestiges of past discrimination have been eliminated to the extent practicable. This Court has recognized that various discriminatory acts or omissions in a single school system have interrelated effects that cause and perpetuate the vestiges of de jure segregation, including racially identifiable schools, and that discrimination in one particular component of the system cannot be considered in isolation. Thus the Court has consistently applied system- wide remedies to address the system-wide nature of the con- stitutional violation. This Court’s decision in Board of Educ. of Oklahoma City v. Dowell reiterated these principles and set forth the workable standards for determining when a for- merly de jure segregated school system has been brought into compliance with the Constitution—and thus when court juris- diction in a desegregation case can properly be withdrawn. As demonstrated below, however, incremental findings of ‘‘unitary’’ status—and with them incremental terminations of court authority to impose remedies addressing particular facets of a school system—would effectively preclude the type of review of school systems, and of ‘‘every facet of school operations,’ mandated by Dowell and the prior decisions of this Court. Such incremental ‘‘unitary’’ findings would require district courts, based on the implementation by a school board of particular non-discriminatory practices, to sequentially ‘‘carve out’’ discrete areas of the school system from further judicial consideration—notwithstanding that 7 central vestiges of discrimination affecting those discrete areas, including the racial identity of schools, had never been remedied. Such incremental reviews of unitary status would certainly inhibit the ability of district courts to determine, as Dowell now requires, whether at a given point in time all ves- tiges of past discrimination have been eliminated from the school system to the extent practicable. Incremental reviews of ‘‘unitary’’ status also would inevita- bly prove unworkable in practice. Such reviews would require district courts to treat in isolation facets of school systems that are, as educators and social scientists have recognized, integrally related in fact. Such findings could also preclude the use of such remedies as magnet schools or majority-to- minority transfer programs that necessarily require court con- sideration of various facets of the schoo] system—facets that may already have been ‘‘carved out’’ from the remedial power of the district court by an earlier finding of ‘‘unitari- ness.’’ Moreover, the opportunity for such incremental find- ings can only be expected to give rise to repeated and protracted litigations, as school boards continually seek to narrow the scope of district court review even before the transition to a ‘‘unitary’’ system has been completed. This Court should instead reaffirm the principles articu- lated in Brown and all subsequent cases: only the transition to a racially nondiscriminatory school system can cure the constitutional violation of de ji re segregation and justify the removal of judicial jurisdiction over the school district. A. Incremental determinations of ‘‘unitary’’ status would be inconsistent with all prior decisions of this Court. 1. Dowell set forth the workable standards that do not allow an incremental approach to determining when a school system has achieved ‘‘unitary’’ status. In Board of Educ. of Oklahoma City v. Dowell, U.S. , 111 S. Ct. 630 (1991), this Court reiterated that a school desegregation decree can be dissolved only when a school board has ‘‘made a sufficient showing’’ that ‘‘a school system . . . has been brought into compliance with the com- mand of the Constitution.’’ Jd., 111 S. Ct. at 636, 638. This 8 Court set forth the inquiry necessary to determine whether such compliance has been achieved: district courts should consider ‘‘whether [a school board has] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination [have] been elimi- nated to the extent practicable.’’ Jd. at 638. | This Court then explained in plain terms the standard for determining whether the vestiges of de jure segregation have in fact been eliminated as far as practicable. Reiterating that every facet of the school system must be free from those ves- tiges, this Court instructed that: the District Court should look not only at student assignments, but ‘‘to every facet of school operations— faculty, staff, transportation, extra-curricular activities and facilities.’’ Green, 391 U.S., at 435, 88 S. Ct., at 1693. See also Swann, 402 U.S., at 18, 91 S. Ct., at 1277 (‘‘[E]xisting policy and practice with regard to fac- ulty, staff, transportation, extra-curricular activities, and facilities’? are ‘‘among the most important indicia of a segregated system’). Id. at 638 Dowell thus embodies fundamental tenets, articulated in Green, Swann and he other precedents of this Court, requir- ing a school board to demonstrate that the school ‘‘system has been brought into compliance with ... the Constitution’’—consistent with the constitutional mandate that all vestiges of the de jure system be eliminated to the extent practicable. This constitutional mandate would be seri- ously undermined if district courts were incrementally denied the power, with regard to particular facets of the school sys- tem, to consider appropria d practicable remedies to ensure a complete transition to a unitary system in which racial discrimination would be eliminated root and branch. 9 2. This Court has consistently recognized that the racial identification of schools results from interrelated fea- tures of a single system that cannot be isolated from each other or subject to divisible remedy. The constitutional violation addressed in Brown, as in all subsequent cases through Dowell, was the operation of racially segregated systems, and not merely the existence of particular discriminatory policies in discrete areas. This Court thus anticipated systemic, rather than incremental, remedies: district courts were instructed to apply remedies that ‘‘may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in [Brown J].’’ Brown v. Board of Education (Brown II), 349 U.S. 294, 300 (1955). Green v. New Kent County School Bd., 391 U.S. 430 (1968), reiterated in unambiguous terms that the constitu- tional violation of de jure segregation is system-wide and that even a facially non-discriminatory student assignment plan can be rendered ineffective by vestiges of de jure segregation in other facets of the system. The ‘‘Green factors’’ reflect how in de jure segregated systems, ‘‘[r]acial identification of the system’s schools was complete, extending not just to the composition of student bodies at the . .. schools but to every facet of school operations—faculty, staff, transporta- tion, extracurricular activities and facilities.’’ Green, 391 U.S. at 435. In Green, the New Kent County school board’s sole reliance on a student assignment plan thus ‘‘ignored the thrust of Brown IT’ by failing to address the school system as an integrated whole. In remanding Green, the Supreme Court expressly instructed the district court to consider, for example, student assignments ‘‘in light of considerations respecting other aspects of the school system such as the mat- ter of faculty and staff desegregation.’’ Jd. at 442 n.6. This consideration of school systems, rather than an incre- mental focus on discrete aspects of a school district, reflected earlier Court decisions that had recognized the interrelated effects of discrimination in such discrete areas as faculty and student assignments. In Rogers v. Paul, 382 U.S. 198 (1965) (per curiam), for example, the Court held that students have 10 standing to challenge discriminatory faculty assignments not only because ‘‘racial allocation of faculty denies [students] equality of educational opportunity,’’ but also because a seg- regated faculty can ‘‘render[{ ] inadequate an otherwise consti- tutional pupil desegregation plan.’’ Jd. at 200 (emphasis added). Similarly, in Bradley v. School Bd., 382 U.S. 103, 105 (1965) (per curiam), the Court recognized ‘‘the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans.’’ See also United States v. Montgomery Bd. of Educ., 395 U.S. 225, 231-32 (1969) (desegregation of faculty and staff is ‘‘a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial dis- crimination’’) (emphasis added). Indeed, in Davis v. Board of School Comm’rs, 402 U.S. 33, 37 (1971); this Court reiter- ated the general principle that it constitutes reversible error to treat particular areas of a school district ‘‘in isolation from the rest of the school system.’’ In light of the system-wide nature of the constitutional vio- lation, this Court since Green has consistently approved system-wide, rather than incremental, remedies to achieve the mandates of the Fourteenth Amendment. District courts have **not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of past as well as bar like discrimination in the future,’’ Green, 391 U.S. at 438 n.4. This Court has reiterated that the inter- action among, and the combined effect of, discrimination in various components of a school system causes and can per- petuate the vestiges of de jure segregation. Swann, emphasizing a district court’s ‘‘broad power to fashion a remedy that will assure a unitary school system,”’ thus explained that the quality of school buildings and equip- ment, or the organization of sports activities, for example, can contribute to a school’s racial identification— notwithstanding non-discriminatory student assignment prac- tices. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (emphasis added). In particular, the failure to integrate faculty and staff will normally perpetuate such racial identity: ‘‘[iJndependent of student assignment, where it is possible to identify a ‘white school’ or a ‘Negro school’ 1] simply by reference to the racial composition of teachers and staff . . . a prima facie case of violation of substantive con- stitutional rights under the Equal Protection Clause is © shown.’’ Jd. at 18. Keyes similarly highlighted the extent to which the various facets of a schoo] system must be evaluated together to deter- mine whether the school] district has fulfilled its affirmative constitutional obligation. As the Court explained, ‘‘[iJn addi- tion to the racial and ethnic composition of a school’s stu- dent body, other factors, such as the racial and ethnic composition of faculty and staff and the community and administration attitudes toward the school, must be taken into consideration.’’ Keyes v. School District No. 1, 413 U.S. 189, 196 (1973) (emphasis added). The Court in Keyes recog- nized the interrelationship of the various ‘‘Green factors’’ in perpetuating the unconstitutional racial identification of schools: ‘‘the use of mobile classrooms, the drafting of stu- dent transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition.’’ Id. at 201-02 (emphasis added). On remand, the school board in Denver District No. 1 thus bore the burden of showing that school board actions affecting various aspects of the schoo! system, ‘‘considered together,”’ were ‘‘not factors in causing the existing condition of segre- gation in these schools. Jd. at 214 (emphasis added). Similarly, in Dayton, the school board had failed to rem- edy the segregated school system by allowing the interplay of various facets of the district—including faculty assignment, attendance zones, school construction and grade structure— to perpetuate the racial identity of the schools. See Dayton Bd. of Educ. v. Brinkman (Dayton II), 443 U.S. 526 (1979). This Court placed particular emphasis on the Dayton school board’s failure to integrate faculty and staff: the district court had erroneously ‘‘ignored . . . the significance of pur- poseful segregation in faculty assignments in establishing the existence of a dual school system.’’ Jd. at 536 (citation omit- ted). Explaining that such ‘‘purposeful segregation of faculty by race was inextricably tied to racially motivated student assignment practices,’’ this Court remained unwilling to 12 ‘‘deprecate the relevance of segregated faculty assignments as one of the factors in proving the existence of a school system that is dual for teachers and students.’’ Jd. at 536 & n.9 (emphasis in original). See also Columbus Bd. of Educ. v. Penick, supra, 443 U.S. at 467 (1979) (‘‘[t]he practice of assigning black teachers and administrators only or in large majority to black schools ... served as discriminatory, system-wide racial identification of schools’’). This Court’s decisions have thus consistently required that the system—and not isolated, discrete parts—be rid of the vestiges of de jure segregation and its perpetuation. Nothing in the Court’s decision in Spangler suggests or should allow a different result. See Pasadena Bd. of Educ. v. Spangler, 427 U.S. 424 (1976). There, this Court considered whether a dis- trict court properly refused to modify a desegregation decree which provided that, in perpetuity, no Pasadena school could have ‘‘a majority of any minority’’ students; this Court con- cluded that the district court ‘‘exceeded its authority’’ by “‘enforcing its order so as to require annual readjustment of attendance zones.’’ Jd. at 432, 435. That decision, however, did not bar the district court from continuing to provide appropriate and practicable remedies necessary to complete the constitutionally mandated transition to a unitary system. Indeed, to the extent this Court even considered the issue, it observed that ‘‘an injunction often requires continuing super- vision by the issuing court and always a continuing willing- ness to apply its powers and processes on behalf of the party who obtained equitable relief.’’ Jd. at 437 (quotation omit- ted). 3. This Court’s decisions are in full accord with the empirical findings of educators and social scientists. Rejecting the ‘‘view that schools are relatively static con- structs of discrete variables,’’ education specialists have gen- erally recognized that schools are ‘‘dynamic social systems made up of interrelated factors.’’ S. Purkey and M. Smith, “Effective Schools—A Review,’’ 83(4) Elementary School Journal 440 (1983). See also A. Bryk, V. Lee and J. Smith, **High School Organization and its Effects on Teachers and 13 Students,’’ in Choice and Control in American Education, Vol. 1 (W.H. Clune and J.P. White, eds.) 139 (1990). Thus, effective desegregation has required a system-oriented, rather than incremental, approach. As one educator has observed: Too often schools seem to focus on only one goal or strategy to achieve effective desegregation. It seems important to stress the need to develop comprehensive plans and strategies. Generally speaking, the attainment of one goal will enhance the possibilities of achieving another. W.D. Hawley, ‘‘Equity and Quality in Education: Character- istics of Effective Desegregated Schools,’’ in Effective School Desegregation 298-99 (W.D. Hawley, ed.) (1981). Studies have consistently shown that student assignments alone do not eliminate the racial identity of schools, and that effective (or ineffective) desegregation results from the inter- play of such student assignments with other factors. See, e.g., G. Forehand and M. Rogasta, ‘‘A Handbook for Inte- grated Schooling,’’ U.S. Dept. of Health, Education and Welfare 11-12 (1976) (desegregation is a multi-dimensional process affected by the various facets of the system). See also Sheehan, ‘‘A Study of Attitude Changes in Desegregated Intermediate Schools,’’ 53 Sociology of Education 51-59 (1980); R. Scott and J. McPartland, ‘‘Desegregation as National Policy: Correlates of Racial Attitudes,’’ 19 Amer. Educ. Research J. 397-414 (1984); Hughes, Gordon and Hill- man, Desegregating America’s Schools (1980) (noting various measures of inequality within schools that must be reviewed to develop an effective desegregation plan). Among other things, educators and social scientists alike have concluded that faculty and staff integration are essential components of effective school desegregation. After studying school districts in various cities, the United States Commis- sion for Civil Rights concluded in 1967 that the maintenance of faculty and staff segregation perpetuates schools’ racial identifiability. U.S. Commission on Civil Rights, Racial Iso- lation in the Public Schools 67 (1967) (‘‘[t]he racial identity of Southern schools is maintained in a variety of ways’’ 14 including ‘‘continued -segregation of teaching staff’’).* A 1976 report prepared by the Education Testing Service for the Department of Health, Education and Welfare similarly con- sidered the inclusion of racial minorities on faculty and administrative staffs to be ‘‘perhaps . . . our most important recommendation.’’ See G. Forehand and M. Ragosta, ‘“‘A Handbook for Integrated Schooling,’’ supra, at 11-12. See also W.D. Hawley, et al., Assessment of Current Knowledge About the Effectiveness of School Desegregation Strategies, Vanderbilt University Study (Vol. I) 86 (1981). B. Incremental findings of unitary status would frustrate the transition to unitary school systems mandated by Brown and all subsequent decisions of this Court. 1. Incremental findings of unitary status would allow vestiges of de jure segregation to survive the termina- tion of court jurisdiction in a school district. Because incremental reviews of unitary status focus only on whether isolated discriminatory practices have been elimi- nated from a particular facet of the school system during some period of time, such incremental inquiries by definition disregard those vestiges of de jure segregation—including, in particular, the racial identification of schools—that result from the interrelated effects of the various forms of discrimi- nation in the school system. Where such incremental findings * The Civil Rights Commission later reiterated that ‘‘[a]dequate minority representation on the school staff is critical to integrated educa- tion.’’ Fulfilling the Letter and Spirit of the Law: Desegregation of the Nation’s Public Schools 122 (1976). See also Tauber, ‘‘Housing, Schools, and Incremental Segregative Effects,’’ 441 Annals of the American Academy of Political and Social Science 157-67 (1979) (manipulation of student assign- ment process, ‘‘combined with segregative assignment of teachers, have com- bined to cause, enhance, and maintain racial identifiability of schools. . . in Milwaukee’’); G. Orfield, Must We Bus? Segregated Schools and National Policy 369 (1978) (in Cleveland, ‘‘[t]he racial identity of the schools was rein- forced by intense faculty segregation’’); Billingsley, et al., ‘‘School Segrega- tion and Residential Segregation: A Social Science Statement,’’ in Schoo/ Desegregation: Past, Present, and Future 235-36 (W.G. Stephan & J.R. Feagin, eds.) (1980). 15 are permitted, school boards can sequentially demonstrate that particular discriminatory practices affecting particular facets of the school system have been eliminated, while ves- tiges of de jure segregation—particularly the racial identifica- tion of schools—continue to operate. If particular discriminatory practices are considered incrementally and in isolation, the sum of the parts of the system will be less than the constitutionally mandated whole—a school system cleansed of the vestiges of de jure segregation. This means, in turn, that after a particular facet of the school system would be ‘‘carved out’’ from further judicial review based on the implementation of particular non- discriminatory practices, vestiges of de jure segregation could continue to operate so that even those non-discriminatory practices could soon be rendered ineffective. This is precisely what this Court has always sought to avoid, as this Court has recognized that the continuing vestiges of prior discrimination in such areas as faculty assignments and funding can render even non-discriminatory student assignment policies inade- quate to remedy violations of the Fourteenth Amendment. Green, supra, 431 U.S. at 439-42. See also Rogers v. Paul, supra, 398 U.S. at 200 (segregated faculty can ‘‘render[ ] inadequate an otherwise constitutional pupil desegregation plan’’); United States v. Montgomery Bd. of Educ., supra, 395 U.S. at 231. At the same time, if particular facets of the school system were to be carved out from further judicial consideration, a school board could presumably become free to take actions in those discrete areas that actually have the effect of imped- ing the transition to a unitary system—so long as these actions do not otherwise constitute new violations of the Fourteenth Amendment. Cf. Dowell, 111 S. Ct. at 638 (if the Oklahoma City School board achieved unitary status in the city school system, further school board actions would be judged under ‘‘appropriate equal protection principles’’). Such a result would plainly impede the constitutionally man- dated transition to a system in which vestiges of de jure seg- regation have been eliminated to the extent practicable. It would also disregard that ‘‘[pJart of the affirmative duty imposed by [this Court’s] cases, as. . . decided in Wright v. 16 Council of Emporia, 407 U.S. 451 (1972), is the obligation not to take any action that would impede the process of dis- establishing the dual system and its effects.’’ See Dayton, supra, 443 U.S. at 538. See also United States v. Scotland Neck Bd. of Educ., 407 U.S. 484 (1972); Columbus, 443 U.S. at 460; Swann, 402 U.S. at 20-21. Ultimately, this would mean that at whatever point in time a school board will have finally succeeded in obtaining sequential ‘‘unitary’’ findings for all facets of the school sys- tem, remaining vestiges of de jure segregation may already have operated to re-establish segregation in those areas where incremental unitary findings have been made. At this point, it would become virtually impossible to conduct any meaningful inquiry as to whether the school board had in fact taken all practicable steps to eliminate all vestiges of prior discrimination—the very inquiry Dowell prescribed. 2. Incremental unitary findings would preclude future use of programs that implicate several facets of the school system. In many cases, incremental findings of unitary status would also preclude the use of remedies, such as optional transfer programs and magnet schools, that would otherwise be the most practicable means of completing the transition to a school system in which the vestiges of de jure segregation have been eliminated. Remedies such as optional majority-to-minority transfer programs have ‘“‘long been recognized as a useful part of every desegregation plan.’’ See Swann, 402 U.S. at 26. Such plans allow members of the majority racial group of a partic- ular school to transfer to other schools where they will be in the minority. While this Court has explained that transfer provisions are ‘‘an indispensable remedy for those students willing to transfer . . . in order to lessen the impact on thern of the state-imposed stigma of segregation,’’ Swann, 404 U.S. at 26, such optional transfer plans—that require adjust- ment of student assignments, faculty assignments, transporta- tion, or the allocation of school resources—would be 17 precluded in any district where any of those implicated facets of the school system had already been declared ‘‘unitary’’. A similar result would follow in the case of magnet school programs, which draw students with particular qualifications from throughout the district to a particular school. See Clark v. Board of Educ., 705 F.2d 265, 272 (8th Cir. 1983) (direct- ing establishment of magnet schools to promote ‘‘equal edu- cational opportunity’’); Adams v. Unite States, 620 F.2d 1277, 1296-97 (8th Cir. 1980) (endorsing magnet schools as a **‘technique[ ] to ensure students . . . will receive equal edu- cational opportunities’’). Implementation of magnet school plans plainly implicates the allocation of school resources, student assignments, faculty assignments, and, in some cases, transportation. The use of such magnet school remedies, however, would be precluded where any of those facets of the school system had already been ‘‘carved out’’ from fur- ther judicial consideration. * 3. Incremental review of unitary status would give rise to repeated and protracted litigation. In a regime allowing incremental ‘‘unitary’’ findings, dis- trict courts could remove from further judicial considera‘.on particular facets of the educational system, notwithstanding that the school system has not yet been brought into compli- ance with the Constitution. It is not difficult to contemplate the annual or even more frequent litigation that would ensue, as school boards could continually seek to ‘‘carve out’’ more and more components of the educational process. * Ironically, the circumstances in DeKalb County are a plain illustra- tion of this result. If, indeed, it was appropriate to ‘carve out’’ the area of student assignments from further district court consideration, then presum- ably such an incremental finding could have been made as early as 1972— after the school board had purportedly implemented a racially non-discriminatory student assignment policy for several years. Such an incremental finding of ‘‘unitary’’ status, however, would have precluded the implementation in subsequent years of the very majority-to-minority transfer programs and magnet school prograrns that the district court considered necessary to effectuate the transition to a school system rid of the vestiges of de jure segregation. See J.A. 216 (majority-to-minority transfer program adopted in 1972); J.A. 217 (magnet school program adopted in 1980's). 18 Without having to establish that the racial identity of schools, or any other vestiges of the de jure system, had been eliminated, a school board could ask a district court to find that practicable steps had been taken to eliminate discrimina- tion in some discrete area. School boards could be expected subsequently to seek one such ‘‘carve out’’ after another, as such relief would self-evidently provide a means to limit the school board’s obligations in the transition to a unitary sys- tem. At the same time, individual litigations over the alleged ‘“‘unitary’’ status of each facet of a school system could require protracted factual inquiry in each case—including expert testimony, or documentary and other evidence con- cerning developments in the school district. There is, moreover, no reason to believe that school boards would seek only to ‘‘carve out’’ the six general facets of school systems identified in Green. Rather, motions could be made for ‘‘unitary’’ findings with respect to particular por- tions of a school district, particular schools, or even particu- lar facets of a single school. Indeed, no limit could easily be placed on the extent to which motions for incremental ‘‘uni- tary’’ findings might be narrowly focused. These scenarios by no means represent mere hypothetical speculation. In the First Circuit, where incremental findings of unitary status are permitted, see Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987), the Boston schoo! board has already sought such incremental unitary findings for small fragments of the system, including discrete groups within the system’s overall teaching staff. See Morgan v. Burke, 926 F.2d 86, 92 (1st Cir. 1991) (school board sought to ‘‘fragment’’ progress in desegregation into ‘‘very small parts’’ and proposed subdi- viding faculty and staff into blacks and other minorities, a proposal considered similar to subdividing student assign- ments on a school-by-school basis). C. The vestiges of de jure segregation in DeKalb County have had interrelated segregative effects, and cannot be considered in isolation. The interrelated effects of the vestiges of discrimination in various aspects of a school system are vividly illustrated in 19 this case. Here, the DCSS argues that it implemented a pur- portedly neutral student assignment plan for some period beginning in 1969.* Yet even during this period—as before and at all times thereafter—schools in DeKalb County retained their racial identity as a result of school board action in such areas as faculty and staff assignments. Indeed, it is undisputed that faculty and staff in DeKalb County have never been desegregated. This meant that the implementation of the DCSS’s neighborhood student attendance plan, even from 1969 to 1972, in fact resulted in black students being assigned predominantly to schools where the black faculty and staff were located—thereby rendering ineffective on its face a desegregation plan that under other circumstances might have served to limit racial identifiability. The DCSS’s own explanation for the continued segregation of its faculty and staff illustrates the interrelated effects of the vestiges of discrimination. The DCSS has attributed fac- ulty and staff segregation largely to faculty and staff prefer- ences to work in schools located near their residences. See J.A. 76; J.A. 230. This explanation makes plain that school construction, abandonment and expansion policies—viewed by the DCSS and the district court as generally falling within the purview of student assignment policies—have a significant effect on determining the effectiveness of steps in the area of faculty assignment. In this case, moreover, the DCSS took actions during the life of the desegregation decree that served to exacerbate the interrelated effects of these perpetuated vestiges. The DCSS built and expanded existing schools and drew attendance zones in a manner that guaranteed racial homogeneity, both of students and faculty, rather than racial integration. Thus in 1976 the district court had found that the DCSS had drawn attendance zones in such a way as to increase segrega- tion within the system. J.A. 89-92. The following year, in the context of considering an expansion of the Flat Shoals ele- mentary school, the district court specifically advised the DCSS to consider ‘‘alternatives to further construction, such * The district court, however, was itself unable to determine how long even these steps in the area of student assignments had been purportedly effective. J.A. 214. 20 as alterations in attendance zones, and, possibly, some form of busing, in order to remedy the overcrowding which is bound to occur and to promote desegregation in the county schools.’’ J.A. 122. Moreover, ‘‘in considering additions to other predominantly black schools in the county,’’ the DCSS was ‘‘admonished to keep this in mind.’’ The district court’s admonition has gone unheeded. The racial identities of schools were locked in place by the DCSS’s continued resistance to effective minority transfer and magnet schools programs. The DCSS consistently placed arbitrary restraints on the number of black students able to transfer to white schools, notwithstanding this Court’s instruction in Swann that in order for a minority transfer program to be effective, ‘‘space must be made available in the school in which [the transferring student] desires to move.’’ Swann, 402 U.S. at 26-27. Thus, in 1976, the district court found that ‘‘the regulations imposed under the M-to-M program perpetuate the vestiges of the dual system.’’ J.A. 83. In 1979, the district court once again was forced to preclude modifications sought by the DCSS to restrict the numbers of black students able to transfer to white schools. J.A. 138-50. The interrelated effects of the vestiges of discrimination in the various facets of school operations collectively deter- mined, and have perpetuated, the racial identities of the schools in DeKalb County. While vestiges of the de jure sys- tem remain, various facets of the school system have been subject to their interrelated effects. II THE DEKALB COUNTY SCHOOL SYSTEM REMAINS UNDER AN AFFIRMATIVE DUTY TO REMEDY, TO THE EXTENT PRACTICABLE, CURRENT RACIAL IDENTIFIABILITY OF THE SYSTEM’S SCHOOLS Since 1954, the schools in DeKalb County have retained their racial identity. Notwithstanding the adoption by the DCSS of certain purportedly non-discriminatory practices in the area of student assignment for some period beginning in 1969, it is not disputed that the DCSS never desegregated fac- 21 *% ulty and staff and always assigned black students dispropor- tionately to those schools in which black faculty and staff could be found. Moreover, since 1969, the DCSS’s school construction and abandonment policies have served primarily to exacerbate the racial identifiability of the schools. Notwithstanding the continuous racial identifiability of the schools, the DCSS now claims it should be released from further court supervision in the area of student assignments— not because it has satisfied its affirmative duty to complete the transition to a school system in which the vestiges of de jure segregation have been eliminated, but because demo- graphic changes during the life of the desegregation decree purportedly contributed to existing segregated student assign- ments in the district. Given the DCSS’s failure ever to take the steps necessary to eliminate the blatant racial identifiabil- ity of the county schools, however, there can be little doubt that the DCSS itself influenced relevant demographic patterns and their reinforcement of existing racial identification. This Court has long recognized the causal relationship between the perpetuation of racial identity of schools and demographic patterns that serve to reinforce such racial identity. And, in fact, while the demographic changes occurred, the DeKalb County school board took steps that served to reinforce and even exacerbate segregative effects of these patterns. The DCSS accordingly remains under an affirmative duty to take practicable steps to remedy the existing racial identification that now exists in the district’s schools—including in the area of student assignment. It remains true that the scope of the affirmative duty to effectuate the transition to a ‘‘unitary’’ school system is defined by the scope of the constitutional violation. Even in a case where a school board is no longer obligated to imple- ment affirmative remedial steps, however, the school board, when it does act, remains under a continuing obligation to take no action that would hinder the constitutionally man- dated transition to a school system in compliance with the Fourteenth Amendment. 22 A. The demographic changes that have occurred in DeKalb County cannot shield the school authorities from respon- sibility for remedying existing racial identity in the school system—including in the area of student assignments. It is well settled that when a school district has operated a de jure segregated system, it bears the burden of demonstrat- ing that the existence of racially identifiable schools is not the result of school board action. See Dayton II, 443 U.S. at 537 (“‘systemwide nature of the violation furnished prima facie proof that current segregation . . . was caused at least in part by prior intentionally segregative official acts’’); Colum- bus, 443 U.S. at 465 n.13 (burden on the school board was to prove that its conduct was not a ‘“‘contributing cause’’ of racial identifiability of schools); Keyes, 413 U.S. at 211 & n.17 (burden is on the school board to prove that its conduct did not ‘‘create or contribute to’’ the racial identifiability of schools, or that racially identifiable schools are ‘‘in no way the result of’’ school board action); Swann, 402 U.S. at 26 (“‘[t}he court should scrutinize [predominantly one-race] schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part’’). Thus the Courts of Appeals, including the Court below, have consistently held that a school system that has not removed all vestiges of segregation cannot avoid the constitu- tional obligation to do so on the basis of claims that ongoing demographic changes have made the process more difficult. See Vaughns v. Board of Educ., 758 F.2d 983, 988 (4th Cir. 1985); Davis v. East Baton Rouge Parish School Bd., 721 F.2d 1425, 1435 (Sth Cir. 1983); Lee v. Macon County Bd. of Educ., 616 F.2d 805, 810 (Sth Cir. 1980). This doctrine reflects the principle that school authorities cannot avoid the continuing duty to desegregate a school system based on the consequences of their failure, to date, effectively to dismantle all features or vestiges of the dual system. These holdings are supported by the decisions of this Court in Columbus and Swann and are premised on the clear recognition by this Court that patterns of segregated schooling influence housing choices and cause or contribute to residential segre- 23 gation—with the result that the patterns of school segregation are compounded and exacerbated.* In this case, it would be difficult for the DCSS to maintain its burden of demonstrating that existing racial segregation is not the result of school board action, given the district’s pre- viously described segregative actions. It is an insuperable bur- den in light of the responsibility of school authorities for influencing demographic patterns that have reinforced the racial identity of the schools, and the actions of the schoo! authorities that actually magnified the segregative effects of those demographic changes. It should come as no surprise that the demographic changes in DeKalb County occurred in racially identifiable patterns reinforcing the racial identifiability of the DCSS schools. This Court has long recognized that ‘‘people gravi- tate toward school facilities,’’ Swann, 402 U.S. at 20, and that racially identifiable schools influence the gravitational pull. Indeed, the DCSS’s claim that it should be released from its affirmative duty to dismantle the dual system because of demographic changes is certainly not novel, and similar claims have already been rejected by this and lower courts. In Columbus, for example, school authorities con- tended that ‘‘because many of the involved schools were in areas that had become predominately black residential areas by the time of trial, the racial separation in the schools would have occurred even without the unlawful conduct of [the school board].’’ Columbus, 443 U.S. at 465 n.13. That * This rule is not one of absolute liability without regard to the facts and circumstances of a particular case, however, as the opinion of the Court below might be read. This Court’s school desegregation precedent establishes a framework according to which a previously de jure school district may seek to demonstrate that segregation in its schools or programs is not the result of the dual system, its failure to eradicate that system and its ef fects, or any actions it has taken that have impeded that process. A school board that has effectively implemented remedies to desegregate all aspects of a school sys- tem and, therefore, has removed the racial identifiability and stigma that influence housing choice and residential segregation, may be in a position to demonstrate that subsequently occurring racial imbalance is not the product of any failure to dismantle de jure schooling. Whatever the circumstances in which a district could carry this burden, they are not presented by the DCSS in this case. 24 argument—then as it should be now—was easily dispatched by this Court: ‘‘the phenomena described by [the school board] seems only to confirm, not disprove . . . that school segregation is a contributing cause of housing segregation.”’ Id. (emphasis added). This Court found persuasive the dis- trict court’s findings that notwithstanding adoption of an ostensibly racially neutral attendance policy, the school board’s failure to dismantle the dual school system perpetu- ated racially identifiable residential patterns. See Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 259 (S.D. Ohio 1977). The DCSS obviously did not cause people to move into DeKalb County. But as explained in Keyes, the perpetuation of identifiably black or white faculty in schools [has] the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construc- tion, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concen- tration within the schools. —Keyes, 413 U.S. at 202. By failing to eliminate the racial identifiability of its schools, the DCSS cast the die for the occurrence of demographic changes that would reinforce the racial identifiability of the schools. Moreover, once those demographic changes began and the need arose for increased school capacity to accommodate the increased student population, the DCSS affirmatively exacer- bated the effects of the demographic changes on the school system through its policy of expansion. Rather than build schools or expand existing schools in areas that promised a racially diverse student body, the DCSS instead built and expanded schools in the peripheral parts of DeKalb County that guaranteed racial homogeneity. Together with the neigh- borhood student attendance plan and restricted minority transfer programs, the new and expanded schools locked the system into a separation of the races. Black schools were 25 located in areas within DeKalb County that assured their racial identifiability would remain intact. In Swann, this Court recognized that within a school sys- tem that had yet to achieve unitary status, the location of schools can have a powerful effect on residential patterns, particularly when the students are assigned to schools on a neighborhood zoning basis: The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state- segregated school system. In addition to the classic pat- tern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools wh. n appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with mini- mum departure from the formal principles of ‘neighbor- hood zoning.’ Such a policy does more than simply influence the short-run composition of the student body of a new school. Jt may well promote segregated resi- dential patterns which, when combined with ‘neighbor- hood zoning,’ further lock the school system into the mold of separation of the races. —Swann, 402 U.S. at 20-21 (emphasis added). Studies by social scientists have confirmed that racially identifiable schools influence demographic patterns so as to reinforce the schools’ racial identifiability. See, e.g., Bil- lingsley, et al., ‘‘School Segregation and Residential Segrega- tion: A Social Science Statement,’’ in School Desegregation: Past, Present, and Future 240 (W.G. Stephan & J.R. Feagin, eds.) (1980). Indeed, as thirty-eight social scientists agreec * 26 a collective statement, ‘‘{a]ll discriminatory acts by school authorities that contribute to the racial identifiability of schools promote racially identifiable neighborhoods.’’ /d. at 236. Moreover, a school board can trigger or influence a racially identifiable demographic trend in neighborhoods by ‘‘signalling’’ that the racial identity of an existing school is to change, or, in the case of a new school, what its racial iden- tity will be. This is particularly so in communities undergoing substantial demographic changes, because ‘“‘the changing racial composition of a school’s pupils and staff serves as a signal to the public—realtors, homeseekers, residents, etc.— that school authorities expect the school to become all black.’’ Tauber, Demographic Perspectives on Housing and School Segregation, 21 Wayne L. Rev. 833, 843 (1975). See also ‘‘School Segregation and Residential Segregation: A Social Science Statement,’’ supra, at 235 (‘‘[c]Jhange in the racial identifiability of a school can influence the pace of change in racial composition in a ‘changing’ residential area’’). A significant, and perhaps most obvious, reason for this relationship between racially identifiable schools and demo- graphic patterns is that parents perceive that black schools are generally inferior to white schools. See, e.g., Tauber, Demographic Perspectives on Housing and School Segrega- tion, supra, 21 Wayne L. Rev. at 843 (‘‘if predominantly black schools were not perceived as inferior schools, then schoo] attendance zones would play only a minor role in resi- dential choices and in the behavior of real estate busi- nesses’’). Swann, Keyes and Columbus teach that when assessing the relationship between racially identifiable demographic trends and school board action, the district court must consider the acts (and omissions) of the school board before and during the time period in which those trends occurred. An analysis which considers only the present overlooks the vital question: whether past actions have contributed t« present harm. This “‘segregative snowball’’ effect, Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 259 (S.D. Ohio 1977), has been rec- ognized by numerous lower courts and taken into account 27 when determining the appropriate scope of relief required to effectively desegregate a formerly de jure school system.* Not surprisingly, racially identifiable demographic trends are less likely in communities which have undergone success- ful school desegregation. ‘‘School desegregation, if effectively implemented, removes the racial identifiability of schools, and hence removes one of the restrictions on housing choice by white and black families.’’ Tauber, ‘‘School Desegregation and Racial Housing Patterns,’’ in New Directions for Testing and Measurement: Impact of Desegregation 63 (D. Monti, ed.) (1982). ‘‘[S]chool desegregation has helped ease the tra- ditional patterns of rigid residential segregation. . . . Once the racial character of a neighborhood can no longer easily be stamped by an identification of its schools as black or white,- racial barriers in housing begin to lower."’ Taylor, Brown, Equal Protection and the Isolation of the Poor, 95 Yale L.J. 1700, 1711 (1986) (citing D. Pearce, Breaking Down Barriers: New Evidence on the Impact of Metropolitan School Desegregation on Housing Patterns (1980)). Here, by contrast, the district court’s reliance on demo- graphic changes to relieve the DCSS of its duty to desegre- gate the schools in DeKalb County simply ignored how demographic changes responded to, and thus reinforced, racially identifiable schools. Had the DCSS effectively acted to remedy the vestiges of de jure segregation, the DCSS would not today retain its dual characteristics. The district court’s analysis of the DCSS’s responsibility for the current racial identifiability of the schools in DeKalb County overlooked the critical analysis: whether those ves- * See, e.g., United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055 (1988); United States v. Board of School Comm'rs, 573 F.2d 400, 408- 09 n.20 (7th Cir. 1978); NAACP v. Lansing Bd. of Educ., 559 F.2d 1042, 1049 n.9 (6th Cir.), cert. denied, 434 U.S. 997 (1977); Evans v. Buchanan, 393 F. Supp. 428, 436-37 (D. Del.), aff'd, 423 U.S. 963 (1975); Hart v. Com- munity School Bd., 383 F. Supp. 699, 706 (E.D.N.Y. 1974), aff'd, $12 F.2d 37 (2d Cir. 1975); Davis v. School District, 309 F. Supp. 334, 742 (E.D. Mich. 1970), aff’d, 443 F.2d $73 (6th Cir.), cert. denied, 404 U.S. 913 (1971 ). See also Adams v. United States, 620 F.2d 1277, 1291 (8th Cir.) (public per- ception of racial identity of a school is a powerful factor in shaping neigh- borhood residential patterns), cert. denied, 449 U.S.” 826 (1980). 28 tiges of the de jure system, such as segregated faculty and staff, which have perpetuated the racial identities of the schools, contributed to the racially segregated character of demographic changes. The burden properly belonged on the DCSS to demonstrate that such segregative demographic changes were not influenced by racial identity of the schools that school authorities had themselves caused or perpetuated. Moreover, the district court was clearly erroneous in conclud- ing that the DCSS’s actions in response to the demographic changes had achieved maximum practical desegregation in light of the DCSS’s record with regard to the location of new schools, the neighborhood student attendance plan, and the restricted minority transfer programs—steps that exacerbated the segregative effects of the demographic changes. Because the current segregation of student assignments can only properly be considered a vestige of de jure segregation in DeKalb County, the DCSS continues to bear the duty to implement affirmative steps to remedy, to the extent practica- ble, this racial identifiability. Consideration of remedies, of course, must be based upon the current circumstances in the schoo] system rather than those existing at an earlier point in the desegregation process. This case should be remanded to the district court so that the school board itself can imple- ment necessary remedies. In the event of default by the school board in that duty, the district court will be in the best position to fashion an appropriate remedy. B. Where a school board that has not completed the transi- tion to a unitary system is not obligated to implement fur- ther affirmative remedial steps, school authorities, when they do act, remain obligated to take no action that would impede completion of the transition. The continuing obligation of the DCSS to achieve the transition to a unitary system is fully consistent with the Fourteenth Amendment principle that a school board’s affirmative duty in a given district is defined by the scope of the constitutional violation. See, e.g., Swann, 402 U.S. at 16; Milliken v. Bradley (Milliken II), 433 U.S. 267, 282 (1977). This Court has, of course, long recognized that the vestiges 29 of de jure segregation can be manifest or perpetuated through various means that are thus embodied within the vio- lation of the Fourteenth Amendment. See Point 1, supra. Moreover, as this Court reiterated in Dayton I], the obliga- tion to effectuate the transition to a unitary system includes ‘“‘the obligation not to take any action that would impede the process of disestablishing the dual system and its effects.’’ Dayton, 443 U.S. at 538. See also Wright v. Council of Emporia, 407 U.S. 451 (1972); United States v. Scotland Neck City Bd. of. Educ., 407 U.S. 484 (1972). This duty to *‘do no harm’’ applies without regard to the purported moti- vation for particular school board actions. During the transi- tion to a school system in compliance with the Constitution, ““[t]he existence of a permissible purpose cannot sustain [school board] action that has an impermissible effect’’ of impeding ‘‘the effectiveness of the remedy ordered to disman- tle the dual system.’’ Wright, 407 U.S. at 462, 470. Thus, in both Wright and Scotland Neck, school authorities could not erect new sitident assignment boundary lines where the effect of such new boundaries would have been to undermine pro- gress towards school desegregation in the districts. See Wright, 407 U.S. at 460 (proposed action could be judged only according to whether ‘‘it hinders or furthers the process of school desegregation’’); Scotland Neck, 407 U.S. at 489. This duty not to impede the transition to a unitary system remains until the transition is complete. For example, even if a school district has been implementing effective steps toward the transition to a unitary system, and therefore may be under no obligation to initiate further restructuring of the school system in response to racial imbalances resulting from demographic change, it nevertheless is obligated to take no action that will impede or frustrate the transition. See also p. 23n., supra. Accordingly, when such a district does act— to adjust attendance zones, to construct or abandon schools, to assign faculty, to implement pupil transfer programs—it is obligated to act in a manner that does not exacerbate segre- gation within the district or ‘‘serve to perpetuate or reestab- lish the dual system.’’ Swann, 402 U.S. at 21. A school board that is not obligated to take further affirm- ative remedial steps thus cannot permissibly take the type of 30 action proposed by the DCSS in this case—expansion of a high school in a section of the county with a predominantly white population, where the result will be to draw students to the school from currently less segregated schools and thereby increase the separation of the races in the district. The affirmative duty to bring a school district into compli- ance with the Constitution would be rendered meaningless if school authorities were free to take action during the period 0} transition that would hinder the process of schoo] desegre- gation or even promote separation of the races in the system. CONCLUSION ; The judgment of the Eleventh Circuit Court of Appeals should be affirmed. June 21, 1991 Respectfully submitted, Herbert M. Wachtell, /S/ NORMAN REDLICH Co-Chairman Norman Redlich* Wiham H. Brown III, Stephen R. Neuwirth Co-Chairman Jeffrey 1. Lang Nofman Redlich, Trustee Barbara R. Arnwine Thomas J. Henderson Paul Holtzman LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1400 Eye Street, NW Washington, D.C. 20005 (202). 371-1212 WACHTELL, LIPTON, ROSEN & KATZ . 299 Park Avenue New York, New York 10171 (212) 371-9200 Burke Marshall 127 Wal Street New Haven, Connecticut 06520 (203) 432-4953 Attorneys for Amicus Curiae * Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0719%3A17. Public record. Not legal advice.