Metropolitan School Desegregation

Congressional research reportDec 15, 1980

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R e p o r t No. 80-218

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METROPOLITAN SCtiOOL DESEGREGATION

K. F o r b i s J o r d a n

Senior S p e c i a l i s t i n Education

E d u c a t i o n and P u b l i c W e l f a r e D i v i s i o n

and

C h a r l e s V. Dale

Legislative Attorney

A m e r i c a n Law D i v i s i o n

December 1 5 , 1980

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ABSTRACT

D e s e g r e g a t i o n of s c h o o l s i n m u l t i - s c h o o l d i s t r i c t m e t r o p o l i t a n a r e a s

h a s b e e n proposed t o a c h i e v e r a c i a l b a l a n c e i n i n n e r c i t y s c h o o l s .

The

c o u r t s have been h e s i t a n t t o impose t h i s remedy e x c e p t where g o v e r n m e n t a l

a c t i o n h a s been t a k e n t o f o s t e r s e g r e g a t i o n .

Some c o n t e n d t h a t a b e t t e r

a l t e r n a t i v e would be t o u s e e d u c a t i o n a l r e m e d i e s .

options a r e available.

Limited congressional

CONTENTS

SUWRY.

I

.

.................................................................... v i i

SOCIAL AND EDUCATIONAL IMPLICATIONS OF METROPOLITAN SCHOOL

DESEGREGATION

........................................................ 1

BACKGROUND ........................................................... 1

S e g r e g a t e d S c h o o l D i s t r i c t s ........................................... 2

E d u c a t i o n a l R e m e d i e s .................................................. 3

E d u c a t i o n a l G o v e r n a n c e ................................................

7

TYPES OF METROPOLITAN DESEGREGATION ................................... 9

IMPACT OF METROPOLITAN DESEGREGATION .................................. 1 0

W h i t e F l i g h t .......................................................... 11

A d m i n i s t r a t i v e F e a s i b i l i t y ............................................ 1 6

M a g n i t u d e of S c h o o l B u s i n g Under M e t r o p o l i t a n D e s e g r e g a t i o n ........... 2 0

I m p l i c a t i o n s f o r L o c a l C o n t r o l of E d u c a t i o n ........................... 2 1

E d u c a t i o n a l E f f e c t s ................................................... 2 3

ALTERNATIVES FOR METROPOLITAN DESEGREGATION ........................... 26

R e o r g a n i z a t i o n of S c h o o l D i s t r i c t S t r u c t u r e ........................... 27

C r e a t i o n of S p e c i a l M e t r o p o l i t a n U n i t s ................................ 27

S h a r e d S e r v i c e s ....................................................... 27

V o l u n t a r y I n t e r - d i s t r i c t T r a n s f e r s ............................... 28

I1 .

LEGAL HISTORY OF METROPOLITAN SCHOOL DESEGREGATION .................... 31

T h e D e c i s i o n i n M i l l i k e n v . B r a d l e y ................................... 3 3

POST-MILLIKEN CASES INVOLVING INTER-DISTRICT

SCHOOL DESEGREGATION REMEDIES

OR METROPOLITAN

......................................... 3 7

I n d i a n a p o l i s . I n d i a n a ................................................ 38

W i l m i n g t o n . D e l a w a r e .................................................. 44

L o u i s v i l l e a n d J e f f e r s o n C o u n t y . K e n t u c k y ............................. 51

S t . L o u i s . M i s s o u r i ................................................... 55

SUMMARY OF PART I1 .................................................... 5 9

111- CONGRESSIONAL RESPONSE ................................................ 67

I n t e r e s t i n d e s e g r e g a t i n g schools throughout mult i - d i s t r i c t

metropolitan

a r e a s h a s i n c r e a s e d a s a r e s u l t of l i t i g a t i o n i n t h e F e d e r a l c o u r t s c o n c e r n i n g

cross-district

i n t e g r a t i o n of s t u d e n t s i n t h e D e t r o i t , I n d i a n a p o l i s , L o u i s v i l l e ,

and W ilmington m e t r o p o l i t a n a r e a s .

Experience with school desegregation e f f o r t s

i n v o l v i n g a c e n t r a l c i t y s c h o o l d i s t r i c t and i t s s u b u r b a n i n d e p e n d e n t s c h o o l d i s t r i c t s i s very l i m i t e d .

Throughout t h e S o u t h e a s t , s c h o o l d i s t r i c t s g e n e r a l l y

c o v e r l a r g e r g e o g r a p h i c a l a r e a s t h a n i n o t h e r r e g i o n s of t h e N a t i o n .

In these

d i s t r i c t s , v a r i o u s e x a m p l e s c a n be found of s c h o o l d e s e g r e g a t i o n e f f o r t s i n v o l v i n g a c e n t r a l c i t y and i t s s u r r o u n d i n g s u b u r b s ; h o w e v e r , t h e s e a r e a s h a v e i n volved o n l y one school d i s t r i c t .

T h i s paper h a s been devoted t o a d i s c u s s i o n

of s c h o o l d e s e g r e g a t i o n i n m e t r o p o l i t a n a r e a s w i t h m u l t i p l e s c h o o l d i s t r i c t s ;

t h e i n t e n t i s n o t t o a d d r e s s t h e f u l l r a n g e of i s s u e s r e l a t e d t o s c h o o l d e s e g r e g a t i o n o r school busing f o r i n t e g r a t i o n .

The i n c r e a s i n g m i n o r i t y r a c e school-age

school-age

p o p u l a t i o n s and t h e d e c l i n i n g w h i t e

p o p u l a t i o n s i n some c e n t r a l c i t i e s h a v e r e s u l t e d i n s e v e r a l c i t i e s

a p p r o a c h i n g t h e p o i n t t h a t a m a j o r i t y of t h e e n r o l l m e n t i s c o m p r i s e d of m i n o r i t y

students ( r e f e r r e d t o a s "majority-minority"

pupil enrollments).

T h i s demographic

c o n d i t i o n h a s r e s u l t e d i n some p e r s o n s q u e s t i o n i n g t h e m e r i t s of m e t r o p o l i t a n

d e s e g r e g a t i o n e f f o r t s and p r o p o s i n g t h a t " e d u c a t i o n a l r e m e d i e s , " o r t h e e x p a n s i o n

of e d u c a t i o n a l p r o g r a m s and o p p o r t u n i t i e s i n t h e n e i g h b o r h o o d s c h o o l , b e t h e

s o c i a l goal r a t h e r then i n t e r - d i s t r i c t

desegregation.

However, o t h e r p e r s o n s

have u s e d t h i s d e m o g r a p h i c c o n d i t i o n a s j u s t i f i c a t i o n f o r p r o p o s i n g m e t r o p o l i t a n

desegregation.

These d e s e g r e g a t i o n a d v o c a t e s p o i n t t o t h e e v i d e n c e t h a t s i n g l e

u n i t school d i s t r i c t s serving metropolitan areas can desegregate t h e i r schools,

but n o t t h a t s e v e r a l school d i s t r i c t s s e r v i n g a metropolitan a r e a w i l l seek t o

i n t e g r a t e t h e i r schools.

The d e c e n t r a l i z e d g o v e r n a n c e s t r u c t u r e of American pub-

l i c e d u c a t i o n i s premised on t h e a s s u m p t i o n t h a t l o c a l c i t i z e n s w i l l make d e c i s i o n s a b o u t t h e o p e r a t i o n of s c h o o l s i n t h e i r own s e l f - i n t e r e s t

and c i t i z e n s i n

e a c h of s e v e r a l s c h o o l d i s t r i c t s i n a m e t r o p o l i t a n a r e a , and c i t i z e n s i n e a c h

s c h o o l d i s t r i c t may n o t view s c h o o l d e s e g r e g a t i o n a s b e i n g i n t h e i r s e l f - i n t e r e s t .

Concerns a b o u t m e t r o p o l i t a n s c h o o l d e s e g r e g a t i o n a r e r e l a t e d t o f a m i l y c h o i c e

of r e s i d e n c e , a d m i n i s t r a t i v e f e a s i b i l i t y , m a g n i t u d e of b u s i n g s c h o o l c h i l d r e n ,

i m p l i c a t i o n s f o r l o c a l c o n t r o l of s c h o o l s , and e d u c a t i o n a l e f f e c t s .

"White f l i g h t "

from t h e canmunity and from t h e s c h o o l s a p p e a r s t o t a k e p l a c e d u r i n g t h e e a r l y

s t a g e s of d e s e g r e g a t i o n , b u t r e s e a r c h s u g g e s t s (1) t h a t t h e moving of f a m i l i e s

may n o t be g r e a t e r t h a n i f t h e s c h o o l d e s e g r e g a t i o n p l a n had n o t been i n e f f e c t ,

and ( 2 ) t h a t many s t u d e n t s r e t u r n t o t h e p u b l i c s c h o o l s a f t e r t h e i n i t i a l d e s e g r e gation period.

S t u d i e s i n d i c a t e t h a t a d m i n i s t r a t i v e procedures f o r desegregation

c a n b e d e v e l o p e d , b u t l o g i s t i c a l problems i n c r e a s e when s e v e r a l s c h o o l d i s t r i c t s

a r e involved.

O b s e r v e r s c o n t e n d t h a t b u s i n g f o r s t u d e n t s i n a m e t r o p o l i t a n deseg-

r e g a t i o n e f f o r t may n o t b e any g r e a t e r t h a n i n many r u r a l and s u b u r b a n d i s t r i c t s

a t t h e present time.

One c o n c e r n i s t h a t p a r e n t s f e a r a p o t e n t i a l l o s s of c o n t r o l and c o n t a c t o v e r

t h e s c h o o l s a t t e n d e d by t h e i r c h i l d r e n , b u t p a r e n t s i n many l a r g e c i t i e s a l s o f e e l

t h a t t h e y a r e i s o l a t e d from t h e c e n t r a l s c h o o l a d m i n i s t r a t i o n and t h e s c h o o l b o a r d .

L i m i t e d s t u d i e s of s t u d e n t a c h i e v e m e n t i n m e t r o p o l i t a n - a r e a

desegregated schools

s u g g e s t t h a t w h i t e s t u d e n t s have n o t b e e n a d v e r s e l y a f f e c t e d and t h a t m i n o r i t y

s t u d e n t s have b e n e f i t t e d .

An a d d i t i o n a l p o t e n t i a l b e n e f i t i s t h e o p p o r t u n i t y

t o i n c r e a s e e d u c a t i o n a l p r o g r a m s and expand s t u d e n t s e r v i c e s .

L e g a l p r e c e d e n t s i n t h e F e d e r a l c o u r t s c o n c e r n i n g m e t r o p o l i t a n s c h o o l desegr e g a t i o n a r e l i m i t e d , b u t t h e c r i t i c a l e l e m e n t a p p e a r s t o be t h e e x i s t e n c e of

e v i d e n c e t h a t governmental a c t i o n h a s been t a k e n t o f o s t e r o r m a i n t a i n s c h o o l

segregation i n the metropolitan area.

When t h e c o u r t s h a v e viewed s c h o o l s e g r e -

g a t i o n a s b e i n g f o s t e r e d by s u c h a c t i o n s as t h e f o r m a t i o n of s c h o o l d i s t r i c t s ,

l o c a t i o n of p u b l i c h o u s i n g , and i n t e r - d i s t r i c t

t r a n s f e r of m i n o r i t y s t u d e n t s ,

d i s t r i c t s h a v e b e e n merged by c o u r t o r d e r .

The C o n g r e s s h a s v a r i o u s p u b l i c p o l i c y o p t i o n s c o n c e r n i n g m e t r o p o l i t a n des e g r e g a t i o n ; h o w e v e r , t h e u l t i m a t e r e s p o n s i b i l i t y f o r t h e c o n d u c t of s c h o o l s r e s i d e s w i t h t h e i n d i v i d u a l S t a t e s r a t h e r t h a n w i t h t h e F e d e r a l Government.

In

view of t h i s e s t a b l i s h e d l e g a l p r i n c i p l e , t h e C o n g r e s s c o u l d t a k e "no a c t i o n " .

A n o t h e r o p t i o n i s F e d e r a l f u n d i n g f o r " r e s e a r c h and d i s s e m i n a t i o n a c t i v i t i e s " t o

r a i s e t h e l e v e l of p u b l i c u n d e r s t a n d i n g of t h e i s s u e .

A t h i r d o p t i o n would be

t o fund "demonstration programs" f o r s c h o o l d i s t r i c t s t o p a r t i c i p a t e i n i n t e r d i s t r i c t desegregation a c t i v i t i e s .

S u p p o r t c a n a l s o be f o u n d f o r a f o u r t h o p t i o n

t h a t would p r o v i d e d i r e c t a i d f o r " e d u c a t i o n a l r e m e d i e s " t o improve e d u c a t i o n a l

o p p o r t u n i t i e s i n i n n e r c i t y s c h o o l s ; however, i n c r e a s e d d e s e g r e g a t i o n of s c h o o l s

would n o t be t h e d i r e c t r e s u l t .

E x c l u d i n g t h e "no a c t i o n " o p t i o n , e a c h c h o i c e

would r e p r e s e n t a p o s i t i v e F e d e r a l a c t i o n , b u t t h e o p t i o n r e m a i n s f o r t h e C o n g r e s s

t o p r o h i b i t t h e u s e of F e d e r a l f u n d s f o r a n y a c t i v i t y d e s i g n e d t o s u p p o r t o r

promote m e t r o p o l i t a n o r i n t e r - d i s t r i c t

desegregation a c t i v i t i e s .

T h i s p a p e r c o n s i s t s of t h r e e s e c t i o n s .

R e p o r t s and r e s e a r c h s t u d i e s a b o u t

m e t r o p o l i t a n d e s e g r e g a t i o n a r e summarized i n t h e f i r s t s e c t i o n .

a r e d i s c u s s e d i n t h e second s e c t i o n .

Legal precedents

A b r i e f d i s c u s s i o n of a l t e r n a t i v e c o u r s e s

of a c t i o n f o r t h e C o n g r e s s i s p r e s e n t e d i n t h e l a s t s e c t i o n .

SOCIAL AND EDUCATIONAL IMPLICATIONS OF METROPOLITAN SCHOOL DESEGREGATION

BACKGROUND

The pace of school integration has moved at different rates in different

localities over the 25 years since the Brown decision of the U.S.

Supreme Court.

Yuch attention has been devoted to integrating the previously dual school systems for black and white students that existed in the Southeastern States.

Pro-

gress has been made in integrating the schools in that part of the Nation, but

pockets of segregation remain throughout the Nation.

Recently, the focus has been on the older urban areas throughout the Nation,

for the concept of the neighborhood school has contributed to the maintenance of

segregated schools because of the housing patterns in most large cities.

The at-

tainment of racially-mixed schools in many urban areas has been further thwarted

by the continuously shifting population patterns, as the white school age population has declined and the minority school age population has increased.

Urban school districts thus find themselves confronted with an increasing

minority population and declining socio-economic and educational background levels

for the white families who continue to use the public schools.

The result is that

the white parents who are most threatened by the minority community are the ones

with the students in the public schools.

Since 1920 there has been a steady in-

11

crease in the segregation of children in the urban North by social class. -

1/ Havighurst, Robert J . , Education in Metropolitan Areas, Allyn and Bacon,

New ~ g r k ,1966, p . 59.

During this period the percent of minority students has also increased.

Movement

is in the direction of the majority of the school enrollment in many urban areas

consisting of minority children, often referred to as a "majority-minority" enrollment.

Segregated School Districts

For political, social, and economic reasons, families tend to sort themselves

out in the selection of residencies.

This sorting out process often results in

a pattern of racial segregation in housing that is reflected in the segregated

schools.

In States with county units or similar organizational patterns that re-

sult in geographically larger school districts, the challenge to integrate the

schools can then be resolved on an intra-district basis.

However, outside the

Southeast with its large school districts, the suburban school districts cover

less area and often are relatively homogenous in their economic characteristics.

The degree to which a community is integrated then depends upon the historical

housing policies, the clustering of homes with similar prices, and the efforts

that have been made to assure equitable treatment for minority home buyers and

renters.

Throughout the Nation, one can find a limited number of suburbs in which

fair housing practices have been in effect for a long time; these are often the

ones with the integrated schools while their neighboring suburbs remain segregated.

The tendency to locate subsidized housing in central cities has also contrihuted

to the overall pattern of racial and economic organization. This suggests that

the structure of school segregation may have been more related to housing decisions than to school districting or other direct educational decisions.

In 1977, the U.S. Commission on Civil Rights issued a "Statement on Metropolitan School Desegregation" which stated that the challenge of large city

desegregation was compounded not by the segregated schools, but by the segregated

school districts. 2/

The influx of minorities, the exit of whites, and the aging

of the remaining whites have contributed to the increasing percentage of the

school population that is minority in the large citites.

Cities with high mi-

nority percentages will naturally find that they still have racially identifiable schools even under a perfect balance of children by race among the schools

in the city.

Often the adjoining suburbs have a school age population in which

minority percentages are near the reverse of the pattern in the city school

districts.

The Commission indicated that substantial integration could only be

accomplished in some metropolitan areas through inter-district assignment of

students to bring about actual integration of schools.

The Commission's report recognized the progress that had been made in integrating schools during the previous decade, but the report noted that "millions

of minority children remain in segregated schools."

In further discussion, the

report indicated that to a very great extent the remaining problems of segregation were concentrated in the large cities, i.e., in the 26 largest cities, 3 of

3/

every 4 black children were assigned to "intensely segregated schools." -

Fur-

ther discussion in the report stated that the South had a better record on overall desegregation, but that similar conditions existed among all regions of the

Nation in terms of the racial isolation in the larger cities.

Educational Remedies

The appropriateness of racial balance as the principal policy goal of private and government civil rights groups has been subjected to critical examina41

tion in a recent article: 2/ Asher, Steven E . , "Inter-district Remedies for Segregated Schools,"

~olum?;ia Law Review, Vol. 79, October 1979, p. 1168; U.S. Commission on Civil

Rights, Statement on Metropolitan School Desegregation, The Commission, February

1977, p. 8.

31

-

U.S. Commission on Civil Rights, p. 6.

41 Bell, Derrick, A., Jr., "A Reassessment of Racial Balance Remedies-I,"

Phi ~ e l t aKappan, November 1980, p. 177-178.

Continuing pressure for racial balance under all conditions, regardless

of its cost and disruptive potential, and regardless of the fact that

educational benefits to be obtained are unproven, is dangerous.

...

There is a world of difference, though, between "separate but

equal" schools--established over the objection of blacks and maintained

to insure the inferior character of the education they provide--and

institutions designed for and responsive to the very educational needs

of black children who either by parental choice or legal barriers are

unable to attend desegregated schools.

The growing number of minority children in many urban school districts suggests

that busing will not result in the desired level of racial balance in many inner

city schools.

In the search for an alternative to extensive busing, "educational

remedies" have been suggested as a substitute for racial balance in the efforts

to improve educational opportunities for black students.

The Federal courts have

accepted this alternative for improving educational programs and services in litigation involving Detroit and Atlanta.

Various research efforts in recent years have contributed to the identification of successful urban schools serving minority children. 51-

From these stud-

ies, some conditions or characteristics have been developed that provide direction

for those seeking to use the "educational remedies" route: 61

(1)

(2)

(3)

(4)

(5)

(6)

They have strong administrative leadership.

They have a climate of expectation in which no child is permitted

to fall below minimum standards.

The school's climate is orderly without being rigid, quiet without being oppressive.

The acquisition of basic school skills takes precedence over all

other school activities.

School energy and resources can be diverted from other business

in furtherance of the fundamental objectives.

There is some way to frequently monitor pupil progress.

51 Irvine, Jacqueline Jordan, and Russell W. Irvine, "A Reassessment of

" Phi Delta Kappan, November 1980, p. 180-181.

~ a c i a l ~ a l a n cRemedies-11,

e

6 1 Edmonds, Ronald, "Effective Schools for the Urban Poor," Educational

~ e a d e r s h i ~October

,

1979, p. 22.

I n s e v e r a l a r e a s of t h e N a t i o n , o u t s t a n d i n g m i n o r i t y s e g r e g a t e d h i g h s c h o o l s

have been i d e n t i f i e d . 7-1

I n t h e 1950s and 1 9 6 0 s , t h o s e s c h o o l s were s u c c e s s f u l

o n t h e c r i t e r i a of s t u d e n t a c h i e v e m e n t , s c h o o l c l i m a t e , and school-community

r e l a t i o n s ; however, t h e c o m p o s i t i o n of t h e s t u d e n t body i n many of t h o s e s c h o o l s

h a s changed i n t h e i n t e r v e n i n g p e r i o d .

One of t h e d i f f i c u l t i e s i n r e l y i n g upon c o n d i t i o n s i n s u c c e s s f u l m i n o r i t y

s e g r e g a t e d s c h o o l s i n t h e pre-Brown

e r a a s a s o u r c e of p o s s i b l e " e d u c a t i o n a l

r e m e d i e s " i s t h a t s o c i e t a l g o a l s have changed i n t h e p a s t two d e c a d e s ; c u r r e n t l y ,

schools a r e expected t o provide e d u c a t i o n a l o p p o r t u n i t i e s f o r a l l youth, i r r e s p e c t i v e of r a c e , r a t h e r t h a n t h o s e o n l y w i t h h i g h a b i l i t i e s and a s p i r a t i o n s .

A b r o a d e r r a n g e and m r e comprehensive s e t of e d u c a t i o n a l programs and s e r v i c e s

a r e r q u i r e d t o p r o v i d e a d e q u a t e e d u c a t i o n a l o p p o r t u n i t i e s f o r t h i s expanded

p u p i l population.

The u n r e s o l v e d i s s u e i s w h e t h e r o r not " e d u c a t i o n a l r e m e d i e s " p r o v i d e a n

a l t e r n a t i v e t o t h e contemporary r a c i a l b a l a n c e s t r a t e g y t h a t assumes b l a c k c h i l d r e n must a t t e n d s c h o o l s w i t h w h i t e c h i l d r e n t o be a s s u r e d t h a t t h e y w i l l have

a c c e s s t o t h e same q u a l i t y of e d u c a t i o n .

The b a s i c p o s i t i o n of t h e p o l i c y m a k e r s

i n t h e c i v i l r i g h t s movement h a s been t h a t e f f e c t i v e e d u c a t i o n c a n n o t be a c h i e v e d

i n a racially-isolated

s c h o o l , b u t t h i s c a n n o t be a c h i e v e d i n some a r e a s w i t h o u t

a r e s t r u c t u r i n g of s c h o o l governance s y s t e m s and e x p a n s i o n of t h e a r e a i n which

s c h o o l s a r e t o be s u b j e c t e d t o b a l a n c e r a c i a l c r i t e r i a .

81

-

One of t h e r e a s o n s t h a t i n t e r e s t g r o u p s have s o u g h t r a c i a l b a l a n c e among

s c h o o l s i n i n d i v i d u a l s c h o o l d i s t r i c t s i s i l l u s t r a t e d i n t h e f i n d i n g s from a

s t u d y of t h e a l l o c a t i o n of r e s o u r c e s i n t h e Los Angeles U n i f i e d S c h o o l D i s t r i c t

7/ S o w e l l , Thomas, " P a t t e r n s of Black E x c e l l e n c e , " The P u b l i c I n t e r e s t ,

spring-1970, p . 53.

81

p . 179:

Bell, Derrick A.,

J r . , "A Reassessment of R a c i a l B a l a n c e Remedies-I,"

CRS- 6

f o r t h e 1977-78 s c h o o l y e a r . 9/

S c h o o l s w i t h p r e d o m i n a n t l y b l a c k o r H i s p a n i c pu-

p i 1 p o p u l a t i o n s r e c e i v e d fewer f i s c a l r e s o u r c e s from r e g u l a r f u n d s , had t e a c h e r s

w i t h l o w e r l e v e l s of e x p e r i e n c e and t r a i n i n g , and a t t e n d e d s c h o o l s s t a f f e d by

f a c u l t i e s w i t h more m i n o r i t y t e a c h e r s and s u b s t i t u t e s t h a n o t h e r s c h o o l s whose

e n r o l l m e n t was p r e d o m i n a n t l y w h i t e .

When a d j u s t m e n t s w e r e made f o r F e d e r a l f u n d s

and s p e c i a l S t a t e f u n d s , t h e s c h o o l s w i t h p r e d o m i n a n t l y m i n o r i t y e n r o l l m e n t s d i d

have more f a v o r a b l e p u p i l - t e a c h e r r a t i o s ;

i n f a c t , when o n l y r e g u l a r f u n d s w e r e

c o n s i d e r e d , t h e r a t i o s were s l i g h t l y more f a v o r a b l e i n t h e m i n o r i t y s c h o o l s .

The

s t u d y i n d i c a t e d t h a t t h e d i f f e r e n c e s l i k e l y w e r e r e l a t e d t o v a r i a t i o n s i n t h e ave r a g e t e a c h e r s a l a r y ; t h e m i n o r i t y s c h o o l s had t e a c h e r s who l i k e l y would r e c e i v e

a l o w e r s a l a r y o n t h e s a l a r y s c h e d u l e b e c a u s e of l o w e r l e v e l s of t r a i n i n g and

experience.

I n t h e a n a l y s i s of p e r p u p i l f u n d i n g f o r t h e 1976-77

school y e a r ,

e x p e n d i t u r e s i n t h e m i n o r i t y s c h o o l s from r e g u l a r f u n d s were l e s s t h a n a v e r a g e

for t h e e n t i r e school d i s t r i c t .

The r e p o r t c o n c l u d e d t h a t two t y p e s of r e m e d i e s were a v a i l a b l e - - ( l )

allocate

m r e d o l l a r s t o t h e m i n o r i t y s c h o o l s so t h a t t h e y would have more i n p u t s i n t e r m s

of a d d i t i o n a l s t a f f o r o t h e r r e s o u r c e s o r ( 2 ) t r a n s f e r t e a c h e r s s o t h a t t h e b a l a n c e of t r a i n i n g and e x p e r i e n c e among t h e v a r i o u s s c h o o l s would be improved.

The

r e s e a r c h was b a s e d o n d a t a from s c h o o l y e a r s p r i o r t o t h e r e c e n t c o u r t - o r d e r e d

b u s i n g i n t h e Los Angeles s c h o o l d i s t r i c t and p r o v i d e s some a d d i t i o n a l i n s i g h t s

i n t o t h e r a t i o n a l e f o r t h e b u s i n g of s c h o o l c h i l d r e n among s c h o o l s t o a c h i e v e rac i a l balance.

The s t u d y a l s o i n d i c a t e s some of t h e d i f f i c u l t i e s t h a t would be en-

countered i f e d u c a t i o n a l remedies should r e p l a c e r a c i a l balance a s t h e v e h i c l e f o r

improving e d u c a t i o n a l o p p o r t u n i t i e s f o r m i n o r i t y s c h o o l c h i l d r e n , f o r t h e assumpt i o n u n d e r e d u c a t i o n a l r e m e d i e s i s t h a t d i s p r o p o r t i o n a t e r e s o u r c e s would be pro-

vided t o minority c h i l d r e n .

91 Choy, Ronald K . H. and Bernard R . G i f f o r d , "Resource A l l o c a t i o n i n

a s e g r e g a t e d S c h o o l System: The Case of Los A n g e l e s , " J o u r n a l of E d u c a t i o n

F i n a n c e , V o l . 6 , Summer 1980, p. 34-50.

Educational Governance

Few would question the contention that metropolitan desegregation has the

potential of disrupting traditional patterns of school assignment and educational

governance.

Most metropolitan proposals either suggest an eventual merger of

school districts or dramatic changes in pupil assignment procedures.

All pupils

to be served in a school district would not be residents of the district unless

all involved districts merged into a single school district.

Consequently, some

of the justification for the district's existence would be removed, for portions

of the decision-making power of local school boards would be transferred to a

pupil assignment authority responsible for achieving racial balance in an area

larger than individual school districts.

Citizens will naturally be reluctant

for the local school district to become involved in an extensive interdistrict

plan that would require reassignment of a significant number of pupils.

This

arrangement would eliminate some of the basic rationale for the existence of

separate school districts.

Then the issue becomes the appropriate number of

pupils to be served by a school district.

The appropriate size of a school district has been a subject of continuing

controversy.

Few would quarrel with the contention that a school district should

have a sufficient number of pupils to offer comprehensive educational programs

and services, but a rather wide difference of opinion exists as to the optimum

number of pupils required to offer the desired program and services.

Some have

suggested that the number might be as small as 10,000 pupils, and others have

indicated that 50,000 pupils is the optimal number.

These numbers are not based

on empirical research, and would be influenced by population density and the internal administrative organization of the district.

By delegating authority and

decentralizing decision making, sub-districts can be formed that approach the

level of autonomy accorded to independent school districts.

One point of controversy is the tendency for the school board and central

administration to be isolated from individual schools and citizens; comrnunication and parental participation are two of the principal challenges in large

school districts.

Another issue is the size level at which the district reaches

the point of diminishing returns when additional pupils or increased geographical

area no longer result in a decrease in unit cost, but result in an incremental

increase in cost.

High administrative costs and problems with communication and

coordination between parents and schools and the central administration are among

the major concerns related to the optimal size of school districts.

Assuming acceptance of the social goal of eliminating the vestiges of segregation, the rationale for the concept of metropolitan desegregation is illustrated

in the following statement: g/

If past experience is a guide, desegregation in big cities will not

come easily. Plans limited to the central city seem calculated to

stir both race and class resentments. The message received by many

is that working class whites and blacks are expected to bear the

entire burden of social change and that more affluent whites, who

are viewed as doing the prescribing, somehow manage to exempt themselves from the prescription.

Nor are plans limited to the central city likely to prove lasting.

This is not because (as Professor Coleman first had it) desegregation plans contain the seeds of their own destruction. Rather, the

instability of central city desegregation is attributable to the

fact that the forces leading to white suburbanization are continuing

and powerful. Until these forces are reversed or until minority

families participate in the movement, intra-city school desegregation

will not be a stable or lasting remedy.

One factor that has slowed the pace of metropolitan desegregation efforts

is that the courts are primarily concerned with the interpretation of the law, and

the intent of the law even in a broad interpretation is concerned only with ending--and eliminating remaining vestiges of--illegal segregation, not implementing

LO/ Taylor, William L., "Metropolitan Remedies for Public School Discrimination," The Urban Review, Vol. 10, No. 2, Summer, 1978, p. 185.

a successful plan for integration.

When one considers the problem in metro-

politan areas, the challenge becomes even greater if the goal is to bring about

the racial integration of the schools.

Orfield has indicated that limiting ef-

forts to districts with few white students means in effect that there is no

remedy, for long-term demographic trends seem to guarantee continued segregation

in the inner cities and a speeding up of the normal process of ghetto expansion

with the subsequent increase in minority percentage of the school population.

e/

TYPES OF METROPOLITAN DESEGREGATION

Efforts to achieve metropolitan desegregation can be subdivided into two

categories i.e., those that take place within a single school district and those

that involve two or more school districts.

The first is in those school districts

that comprise a geographical area consisting of a city and its immediate suburbs

(this is referred to as a metropolitan area).

FL):

Examples are Dade County (Miami,

Hillsborough County (Tampa, FL); Charlotte-Mecklenburg (Charlotte, NC);

Clark County (Las Vegas, NV); Jefferson County (Louisville, KY); and Nashville/

Davidson County (Nashville, TN).

These school districts are county units that

include a central city and the surrounding suburbs.

They are under the same

type of judicial review concerning desegregation as any other school district,

but they are different in that they comprise a larger geographical area and consist of a city with its suburbs and, in some instances, a portion of the surrounding rural area.

The second category of metropolitan desegregation effort involves an urban

school district with its adjacent suburban school districts, and on occasion

the involved districts may extend beyond those that are immediately adjacent.

111

-

Orfield, Gary, Must We Bus? Segregated Schools and National Policy,

The Brookings Institution, Washington, D.C., 1978, p. 406.

In the metropolitan desegregation litigation involving Detroit, several school

districts and more than one county were included; the same conditions existed in

the Indianapolis case.

The Wilmington case included only a major portion of one

county but several school districts.

In addition to these instances that have

been under litigation, voluntary efforts have been initiated in Boston, Milwaukee,

and Rochester (NY).

Typically, these programs have involved a central city with

its suburbs, and the transfer of pupils has normally been a one-way process with

the the minority pupils in the central city being bused to the suburbs.

The number

of pupils involved has usually been small, and typically a financial incentive has

been provided for the receiving school districts. Pupils have volunteered for

the program, and the purpose has been to reduce ethnic isolation for both minority

and majority pupils.

IMPACT OF METROPOLITAN DESEGREGATION

Parents and interested citizens may have a variety of positions about the

overall impact of metropolitan desegregation even though they may support the

social goals.

They may have questions about the impact that desegregation will

have on the racial composition of the communities, i.e., the degree to which increases will be evident in "white flight" or the movement of white families to

areas even farther from the central city that are not affected by the desegregation efforts.

Another of their concerns is the administrative feasibility of

metropolitan desegregation--the uncertainty of whether the task can be accomplished in that large a geographical area.

The magnitude and costs of busing

school children that would be required and the ability of citizens to exercise

local control over the schools are also areas of interest. Different positions

are also expressed about educational advantages that the metropolitan desegregation effort would have over intra-district desegregation.

White Flight

One point of continuing controversy is the impact that school desegregation

decisions have on residential patterns.

Various research studies have somewhat

contradictory findings because of problems associated with changing demographical

patterns and the lack of data concerning motives for certain actions.

A popu-

larly held contention is that decisions to desegregate the schools are followed

by the exit of white parents to school districts that either have not desegregated their schools, have no minority students, or have a small percent of minority students.

The historical background of the contention can possibly be traced

to the "block busting" techniques that were used when black families began to

move into all white residential areas.

The concept of "white flight" can be viewed from two different perspectives.

First, white residents of an area move to another area in which the percent of

minority population is less.

Second, the residents do not move, but students

leave the public schools for segregated private schools.

Parents may be placing

their children in private schools, but still maintaining their residences in the

community.

Data concerning this behavior are very limited, for only a relatively

few interviews have been conducted to determine the reasons for parents leaving

the community or transferring their children to private schools. 12/ Much of the

discussion has been related to the movement of residents, and the often unstated

assumption has been that the integration of schools has contributed to the degree

of white flight.

Of the various research efforts on the impact of metropolitan desegrega13/ After analyzing

tion, possibly the most controversial was that of Coleman. 12/ Green, Robert L., and Thomas P. Pettigrew, Public School Desegregation

and ~ h z Flight:

e

A Reply to Professor Coleman, U.S. Commission on Civil Rights,

Washington, D.C. (unpublished), December 1975, p. 11.

13/ Coleman, James S., "School Desegregation and Loss of Whites from Large

Central-City School Districts," School Desegregation: The Courts and Suburban

Migration, U.S. Commission on Civil Rights, Washington, D.C. 1975, p. 118.

desegregation data for the 22 largest central-city school districts for the period

1968 to 1973, Coleman contended that the integration of schools has contributed

to the flight of the white population.

His conclusion was that desegregation

brings about a decline in the white population, but this statement must be placed

in the context of the shifting demographical patterns in inner cities over an extended period of time.

Those trends suggest that the white population has been

declining independent of the status of school desegregation in urban areas. Coleman

suggests that the challenge of school desegregation then becomes one for metropolitan areas rather than being restricted to the city with its changing characteristics.

Keppel has supported Coleman's contention by indicating that short-term

desegregation solutions must consider metropolitan plans, but be contended that

the long-term solution is to be found in housing and transportation policies. 141

Rossell 151 has challenged the white flight contention, and indicated that

the movement of whites to the suburbs does not appear to be accelerated by the

degree of efforts being made to desegregate the schools.

In a study comparing con-

ditions in 86 northern school districts in 1967 with those in 1972, Rossell found

that, of the 10 districts that had implemented a significant degree of desegregation, only 2 showed a significant increase in white flight.

Further, in one of

these two districts, other factors may have contributed to the population movement.

This research is in contrast with work by Coleman suggesting that desegregation

has contributed to white flight.

Rossell contends that Coleman failed to consider

the degree of desegregation in school districts and may have confused parental

efforts to maintain residential segregation with parental responses to court ordered desegregation or locally instigated voluntary programs to integrate schools.

141 Keppel, Francis, "Education in the Eighties," Harvard Educational

Xeview, Vol. 50, No. 2, May 1980, p. 151.

151 Rossell, Christine H., "White Flight", Integrateducation, Vol. XIII,

No. 6, ~ovember/December1975, p. 3-10.

Weinberg et a1 have also suggested that Coleman's interpretation of the data

may have been incorrect; they contend that the data strongly suggest that "migration

of whites to the suburbs has brought about the school desegregation, but not that

desegregation leads to white migration from cities." %/

One of the problems

with the Coleman assumptions is that effective desegregation had not taken place

in many of the urban areas during the time periods of his analysis.

Weinberg et

a1 further state that data are not available as to the reasons for the movement

of whites from the cities.

They also point out that the movement of whites from

the cities has been at a rather constant rate without significant increases during

the period of school desegregation.

In further discussion, Weinberg et a1 indi-

cate that the relative percent of white enrollment in urban school districts may

continue to decline because of the higher birth rate of the black population and

the aging of the white urban population.

Rather than referring to white flight, a better choice night be to refer

to white going and white returning.

c/This distinction is becoming more inpor-

tant in view of some recent demographic indicators that suggest a slowing of

the white flight and a possible reversal of the movement from the cities.

XOW-

ever, the returnees may be less likely to have school aged children or to even

contemplate a family.

One interesting report concerning the white flight of students to private

schools is concerned with Mississippi.

White students appeared to be more prone

to leave the schools specifically when the control of the governance structure

for the county or the schools appeared to be shifting to blacks.

Even more inter-

esting is the report from the Mississippi State Department of Education that white

16/ Weinberg, Meyer et al, Three Myths: An Exposure of Popular Misconceptions bout School Desegregation, Southern Regional Council, Atlanta, September

1976, p. 64.

171

-

Harris, Joan R., "Stopping White Flight," Society, May/June 1977, p. 4 4 .

flight appears to have stabilized and was actually declining.

Reportedly, white

children returned to the public integrated school because of its greater educational program opportunities. 181

The experience of Louisville/Jefferson County (KY) in the integration of

the city schools with those in the suburban county does not suggest massive white

flight out of the newly formed school district even though a degree of unrest

accompanied the integration of the schools.

Cunningham et a1 19/ indicate that

some persons were willing to state that they moved out of the county because of

the court ordered integration and resultant busing of school children, but the

percent was a small proportion of the white enrollment in the county.

Housing

vacated by those who left often was occupied by white parents with school age

children, so the impact on the racial composition of the school enrollment appears

to have been minimal.

The study indicated that the mobility rate was consistent

with that of the previous 10 years and that "the existence of residential white

flight should not be assumed" as a result of the integration of the Louisville/

Jefferson County (KY) schools.

Analyses of population mobility in metropolitan areas suggest a relatively

constant movement with changes in the racial composition of the inner city and

movement between the inner city and the suburbs.

The possibility of desegre-

gation may have hastened the relocation. This pattern appears to have existed

in school districts with over 20 percent minority, especially in those districts

181 Weinberg, PIeyer, " School Desegregation and Planned Deprivation,"

~nte~raireducation,

Vol. 13, No. 3, May/June 1975, p. 115.

191 Cunningham, George K., William L. Husk, and James A. Johnson. "The

1mpact;f

Court Ordered Desegregation of Student Enrollment and Residential

Patterns (White Flight)," Journal of Education, Vol. 160, NO. 2, Boston

University, May 1978, pp. 35-46.

CRS-15

under mandatory court order. 20/

It appears that some studies have related

"white flight" to school desegregation when actually the schools in the inner

city had not been desegregated.

The exit movement may have been in anticipation

of desegregation but, in any event, the result has been an increase in minority

percentage of the inner city school population.

Where data are available, research studies indicate that the pace of movement between the inner city and the suburbs has not increased as a result of

desegregation. 21/

Other than the Mississippi study referred to above, research

studies are not available to indicate the long term trends in the white flight

movement to the private schools from the public schools.

The costs and reduced

curricular and extra-curricular activities in some private schools may be sufficient to bring about the return of some students, but others may consider that

the benefits are greater in the private schools.

With regard to the interaction between segregated housing and segregated

schools, an interesting position was postulated in a recent study conducted under

the auspices of the National Institute of Education. 22/

In a field analysis of

desegregation in 14 areas throughout the Nation, the theory was advanced that

school desegregation contributes to the eventual decline of housing segregation

and that busing eventually becomes unnecessary as the level of housing segregation is decreased.

The sample consisted of seven matched pairs of cities, one

group with the suburban area and the other with only the central city area.

2 0 / Green, Robert L., Public School Desegregation, pp. 34-37; and Armor,

David y,White Flight, Demographic Transition, and the Future of School Desegregation, Rand Corporation, Santa Monica, California, 1978, pp. 40-41.

21/ Hodgkinson, Harold L., and Ray C. Rist, School Desegregation in the

1970' ST

Problems and Prospects, National Institute of Education, Washington,

D.C., July 1976, p. 6.

22/ Pearce, Diana, Breaking Down Barriers: New Evidence on the Impact

of Metropolitan School Desegregation on Housing Patterns, Center for National

Policy Review, School of Law, The Catholic University of America, Washington,

D.C., November 1980, p. 67.

Extensive reliance was placed upon real estate listings in local newspapers and

personal interviews.

The conclusions and policy implications suggest that

metropolitan desegregation efforts can be used to breakdown segregated housing

patterns, but the major difference between the "segregated" and "desegregated"

school districts in the study was that the desegregated ones were geographically

larger and included suburban areas around a city while the segregated districts

encompassed all or a portion of the central city.

Consequently, the study did

not include any areas in which efforts had been made to achieve inter-district

metropolitan school desegregation.

varied in terms of

The report indicates that the data are "highly

. . . source, type, and quality." Information was obtained

both from relatively balanced sources and from advocacy group newsletters.

The

relevance of the sample of metropolitan desegregation efforts and lack of consistent and systematic data sources limit the value of the study in this discussion.

The generally accepted position appears to have been expressed by the U.S.

Commission on Civil Rights.

The Commission's report indicated that, in those

instances where metropolitan desegregation has been implemented and sufficient

time has elapsed for trends to have developed, the incidence of white flight

appears to have been in students leaving the public schools for private schools

rather than the relocation of families. Evidence analyzed by the Civil Rights

Commission suggests that the children who leave begin to return within a few

years and the citizens accept the desegregation after several years. 231

Administrative Feasibility

Various questions have been raised concerning metropolitan school desegregation efforts.

231

-

One concern is whether or not it is administratively feasible to

Commission on Civil Rights, Statement on Metropolitan School

Desegregation, The Commission, February 1977, p. 57; and Armor, David J., White

Flight, Demographic Transition, and the Future of School Desegregation, Rand

Corporation, Santa Monica, California, 1978, p. 4 1 .

U.S.

desegregate schools in a metropolitan area.

Different alternatives have been pro-

posed to bring about the integration of the schools.

One would involve retaining

the existing school district organizational structure and assigning pupils to

schools in other school districts in order to achieve racial balance in the

schools.

The litigation in Indianapolis, Kansas City, Richmond and the original

Detroit case was proposed for this purpose.

This alternative is also being used

in the voluntary efforts in Plassachusetts, New York State, and Wisconsin.

School

governance structures would remain the same, but children would be bused to

schools in other school districts, and funds transferred to pay for the additional

educational burden assumed by the receiving school district.

Another alternative would be to consolidate the school districts in an area

into one school district; this new district would then be subject to the same

legal constraints as existing school districts.

The district would have the duty

to follow Federal court precedents and eliminate the vestiges of segregation.

Examples of this approach include (1) the merger of the school districts in the

northern portion of New Castle County in Delaware as a result of the Wilmington

case in the Federal Courts, ( 2 ) the dissolution of the Louisville City Schools

and their assumption by Jefferson County in Kentucky with the result being a

county unit, and (3) the voluntary merger of the two former districts to form

the Nashville/Davidson County school district in Tennessee.

Other examples of school districts that encompass a metropolitan area may

be found in Evansville/Vanderburgh County (IN), Dade County (FL), Duval County

(FL), and Clark County (NV).

The first district was formed as a result of a

school consolidation referendum in the area.

The others resulted from the State

organizational structure for schools in such States as Florida, West Virginia,

Nevada, and Louisiana.

Most discussion concerning metropolitan desegregation has been related to an

inner city with its suburbs in which all are located in a single State.

Itowever,

there are a number of multi-State metropolitan areas, i.e., Cincinnati, Chicago,

Kansas City, Louisville, New York City, Philadelphia, St. Louis, and Washington,

D.C.

Interstate metropolitan desegregation programs for these areas would pose

a much greater logistical challenge than intrastate ones.

Each State has its own

set of statutes governing the powers of local school districts and the operation

of schools.

In some cases, the quality of the educational program might vary

among the States, and variations will exist in the level of expenditure per pupil,

fiscal requirements, staffing qualifications, and educational program and service

standards.

In a few instances, currently existing school districts do include

territory in more than one State.

They typically represent only a small portion

of the total enrollment of the State and began and have been maintained as a result of local initiative.

The entire area has a homogenous quality of similarity

rather than the heterogeneity that characterizes metropolitan areas consisting

of an inner city with one or two rings of suburbs.

The concept of desegregation on a metropolitan basis would have the potential of reducing the degree of racial isolation, but there may be some operational

problems with determining the boundaries of metropolitan areas.

Typically, they

are not conterminous with geographically defined governmental units; their reasons for being and reference points are economic activity, transportation patterns,

and employment opportunities rather than a unit of government such as a county.

The litigation in Indianapolis, Detroit, Richmond, and Kansas City involved more

than one county and even more than one State in the Kansas City effort.

Thus, an

unanswered question in a scenario of metropolitan desegregation plans is "HOW large

will the area eventually be?"

Currently, the litigants seek to integrate the

"majority-minority" schools in the central cities with the "majority-majority"

CRS-19

schools in the suburban areas.

Some proposals have limited the efforts to the

suburban areas immediately adjacent to the cities, but others have extended to

the more distant suburbs.

In the absence of defined boundaries, it appears as

though the area could be extended to the point that vestiges of segregation could

be reduced to almost any desired level.

Accepting the premise that the State is the agency with the ultimate responsibility, the extreme position would be that an entire State could be subject to

the desegregation effort.

Thus, the concept of "reasonableness" might be the only

constraint that would prevent imposition of racial balance standards on school enrollments for an entire State.

The magnitude of busing might be little greater

than under some current court orders, for the State could be divided into zones

in which racial balance standards would be applied.

Zones are currently used in

some of the large school districts as a means of reducing the magnitude of pupil

busing and still desegregating the schools. Without the possibility of the reasonableness constraint, the scenario can be extended even further when one considers

the possibility of interstate movement of pupils in those metropolitan areas that

cover more than one State.

In terms of administrative approaches that might be used to accomplish metropolitan desegregation, most States permit the transfer of pupils among school districts with the receiving district being provided with transfer tuition payments

for the students.

In fact, this device was formerly used in some States to main-

tain segregated schooling for minority children.

Another approach would be for

the school districts in an area to consolidate as was the case in Wilmington; one

problem with this alternative is that districts are not likely to merge in this

manner except under court order or legislative mandate.

Pride in the local dis-

trict, the desire to maintain the status quo, and the threat of the "unknown"

are among the reasons that citizens are reluctant to see their school districts

lose its identity and be consolidated into a larger district.

Magnitude of School Busing under Metropolitan Desegregation

The focal point of public attention in metropolitan desegregation efforts

has often been the busing of school children. Frequently, the assumption has

been that busing requirements will be greater under metropolitan plans than under

intra-district plans, and that children will spend excessive amounts of time on

the buses.

The report of the U.S. Commission on Civil Rights indicates that busing will

not be "far more burdensome" under a metropolitan plan than "those that exist

within a district (whether for desegregation or other purposes)." 241

The Commis-

sion contends that a large proportion of public school children is already transported to school on buses, that only a small percent of busing is for desegrega251

tion, that busing is safe, and that the costs are low. -

Interestingly, plans

for busing children in Detroit and Richmond indicated that the travel time would

261

not be greater than for children in rural areas. -

Reportedly, school facili-

ties also could be utilized better in those cases where schools are located near

school district boundaries.

The Commission stated that the need for busing to

desegregate on a metropolitan basis might be less than the need for busing to desegregate within the school district. 271

The increase in magnitude of busing attributable to desegregation is very

difficult to ascertain, for in most school districts some amount of busing will

have been taking place prior to the desegregation decision.

Routes and stops can

be arranged to provide for maximum convenience or maximum efficiency, and the

241

-

U.S. Commission on Civil Rights, p. 5 1 .

2 5 1 Ibid., p. 5 1 .

2 6 1 Ibid., p. 5 4 .

271

-

Ibid., p. 5 5 .

c o s t w i l l v a r y depending upon which d e c i s i o n i s made.

S t u d e n t s c a n be t r a n s p o r t e d

from t h e i r homes d i r e c t l y t o t h e s c h o o l t h a t t h e y w i l l be a t t e n d i n g o r t h e y c a n

be t r a n s p o r t e d t o a c e n t r a l p o i n t and t h e n r e l o a d e d on " e x p r e s s " b u s e s t o t h e i r

school.

T h e r e w i l l be d i f f e r e n c e s i n c o s t s and t i m e depending upon t h e c h o i c e .

P a r e n t s of c h i l d r e n who have n o t p r e v i o u s l y been t r a n s p o r t e d w i l l of t e n

view a n y amount of b u s i n g a s e x c e s s i v e , and t h o s e whose c h i l d r e n were p r e v i o u s l y

bused f o r f i f t e e n m i n u t e s w i l l view a t h i r t y m i n u t e t r i p a s e x c e s s i v e ; however,

c h i l d r e n i n s u b u r b a n and r u r a l s c h o o l d i s t r i c t s may be bused f o r c o n s i d e r a b l y

l o r g e r t h a n t h o s e i n v o l v e d i n m e t r o p o l i t a n d e s e g r e g a t i o n programs.

A s with those

who e x p r e s s t h e i r f r u s t r a t i o n o v e r governmental s p e n d i n g by v o t i n g a g a i n s t bond

r e f e r e n d a f o r s c h o o l s o r o p e r a t i n g l e v i e s , p a r e n t s who a r e opposed t o d e s e g r e g a t i o n c a n s e i z e upon t h e b u s i n g i s s u e a s a n i d e n t i f i a b l e p o i n t of c o m p l a i n t . 281

I m p l i c a t i o n s f o r L o c a l C o n t r o l of E d u c a t i o n

The c o n c e p t of l o c a l c o n t r o l of s c h o o l s i s one of t h e more e m o t i o n a l educat i o n a l concerns.

The i s s u e i n d e s e g r e g a t i o n may n o t be t h e l o s s of l o c a l c o n t r o l

o v e r s c h o o l d e c i s i o n making; t h e g r e a t e r c o n c e r n may be t h e f e a r of F e d e r a l con291

t r o l over t h e l o c a l school system. -

I r r e s p e c t i v e of t h e o v e r t o r c o v e r t r e a -

s o n s f o r e x p r e s s i n g t h e l o c a l c o n t r o l c o n c e r n , t h e i s s u e remains a r a l l y i n g p o i n t

f o r t h o s e who d e s i r e t o m a i n t a i n t h e s t a t u s quo.

The h i s t o r i c a l p a t t e r n i n America i s t h a t s c h o o l s i n many communities w e r e

s t a r t e d a s a r e s u l t of l o c a l i n t e r e s t .

Only i n t h e p e r i o d s i n c e t h e mid-1800s

d i d t h e c u r r e n t g o v e r n a n c e s t r u c t u r e f o r e d u c a t i o n b e g i n t o emerge.

With t h e

281 S m i t h , P h i l i p I . , " V o l u n t a r y P a r t i c i p a t i o n and P u b l i c O p i n i o n i n

~ i l w a u k e eSchool D e s e g r e g a t i o n , " I n t e g r a t e d u c a t i o n , V o l . XV, No. 6, ~ o v e m b e r l

December 1977, p. 90.

291 Hodgkinson, H a r o l d L . , S c h o o l D e s e g r e g a t i o n , p. 7 .

-

a b s e n c e of m e n t i o n of e d u c a t i o n i n t h e F e d e r a l C o n s t i t u t i o n , r e s p o n s i b i l i t y f o r

e d u c a t i o n t h e n was assumed by t h e i n d i v i d u a l S t a t e s .

Governance s t r u c t u r e s v a r y

among t h e S t a t e s i n t e r m s of t h e number of s c h o o l d i s t r i c t s and t h e r e l a t i v e a u t o nomy t h a t i s p r o v i d e d l o c a l s c h o o l o f f i c i a l s .

The r e s u l t i s t h a t l o c a l c o n t r o l

of s c h o o l s e x i s t s o n l y t o t h e d e g r e e t h a t t h e S t a t e t h r o u g h i t s c o n s t i t u t i o n and

l e g i s l a t u r e d e l e g a t e s c e r t a i n powers t o t h e g o v e r n i n g b o d i e s of t h e l o c a l s c h o o l

districts.

The r e l a t i v e amount of l o c a l c o n t r o l v a r i e s among t h e S t a t e s and

a p p e a r s t o be more r e l a t e d t o t r a d i t i o n t h a n any o t h e r i d e n t i f i a b l e f a c t o r .

An-

o t h e r r e s p o n s e i s t h a t l o c a l c o n t r o l e x i s t s t o t h e d e g r e e t h a t c i t i z e n s have and

e x e r c i s e t h e p r i v i l e g e of p a r t i c i p a t i n g i n d e c i s i o n s a f f e c t i n g t h e e d u c a t i o n of

t h e i r children.

Urban s c h o o l d i s t r i c t s a r e o f t e n s o l a r g e t h a t c i t i z e n s p a r t i c i -

p a t i o n i s l i m i t e d t o v o t i n g i n s c h o o l board member e l e c t i o n s , o p e r a t i n g l e v y

r e f e r e n d a , o r s c h o o l bond e l e c t i o n s .

W i t h t h e i n d i v i d u a l s c h o o l , t h e c o n c e p t of l o c a l c o n t r o l o f t e n r e f e r s t o

i n f o r m a l c o n t a c t s , c o m m u n i c a t i o n s , and a c t i v i t i e s t h a t e x i s t between t h e s c h o o l ' s

p a t r o n s and t h e s c h o o l s t a f f .

Because of t h e p r o x i m i t y of t h e neighborhood s c h o o l ,

b o t h s t a f f and p a t r o n s may f e e l t h a t a s e n s e of community e x i s t s between t h e s c h o o l

and i t s p a t r o n s .

They may a l s o f e e l t h a t t h i s a t m o s p h e r e i s d i f f i c u l t t o d e v e l o p

when p u p i l s a r e bused t o s c h o o l s i n o t h e r communities and c o n t i n u i t y i n s c h o o l a t tendance h a s n o t been maintained.

As a human r e l a t i o n s a s p e c t i n t h e i n t e g r a t i o n

p r o c e s s , l o c a l s c h o o l o f f i c i a l s have o f t e n t a k e n s t e p s t o d e v e l o p and m a i n t a i n

i n t e r a c t i o n b e t w e e n s c h o o l p a t r o n s and s c h o o l s t a f f when t r a d i t i o n a l p a t t e r n s of

s c h o o l a t t e n d a n c e have been d i s r u p t e d .

I n most l a r g e r u r b a n a r e a s , a d e g r e e of i s o l a t i o n e x i s t s between t h e i n d i v i d u a l s c h o o l s and t h e c e n t r a l a d m i n i s t r a t i v e o f f i c e s and t h e s c h o o l b o a r d .

This

problem has been addressed in many of the large cities by subdividing the school

district into administrative areas or sub-districts.

For example, the new school

district in Wilmington has four geographical areas through which the district is

administered.

Educational Effects

Experience with metropolitan desegregation has been largely limited to the

county unit districts in the previously dual systems in the South and a few voluntary programs with a limited number of partici,pants. In the county unit systems, observers indicate that the programs have been somewhat successful; however,

some critics may contend that they have been successful because of the legal

pressures placed on the commmunity.

One facet of the problem is illustrated by the statement in the report of

the U.S.

Commission for Civil Rights indicating that parents view the schools more

positively and that educational outcomes are better when the majority of the students are not from disadvantaged backgrounds. 30/

This may be one of the strong

underlying rationales for the interest in metropolitan desegregation plans, for

many of the large cities have a student population that is approaching majority

disadvantaged in terms of income.

Children participating in the voluntary plans in Boston and Rochester appear

to have been positively influenced.

They evidently have stronger incentives to

stay in school, have higher aspirations concerning higher education, and have de31/

veloped contacts beyond those that would have been available in the inner city. -

30/

-

U.S. Commission on Civil Rights, pp. 58-59.

31/

-

Ibid., p. 60.

Detailed analyses of the effect of desegregation on student achievement have

addressed four questions: 32/

(1)

(2)

(3)

How does desegregation affect academic achievement?

What is the effect on a child's self-concept and career aspirations?

How does desegregation influence the manner in which children of

different races relate to each other?

(4) How do teachers and students relate to each other?

Achievement.

Research studies concerning student achievement indicate that

black children learn more in desegregated schools than in segregated schools.

The research also indicated that white students continue to learn at the same

rates.

Gaps in achievement had been narrowed, and patterns of decline were not

331

found for either group of students. -

The general findings are supported by

an analysis of research by the National Institute of Education in which achievement in 48 desegregated schools was studied.

In 29 instances, minority achieve-

ment increased; in 19 cases, no effect was discernible; and in no instances, was

there found evidence of decline. 341

Various studies have indicated the positive

points were that desegregation and educational growth were found to be compatible

and that the "no growth" outcome might be considered as positive since it reversed

a trend toward declining black achievement. 351

In the quest for quality education, the courts and sociological research

appear to be in agreement that quality education for minority children cannot be

achieved in a segregated school environment.

However, various researchers, such

321 Crain, Robert L. and Rita E. Mahard, "Desegregation and Black Achievement," Law and Contemporary Problems, School of Law, Duke University, Summer,

1978, p. 17-56; Hodgkinson, Harold L., School Desegregation, p. 6-7; and Weinberg,

Meyer, Three ILyths, p. 15-21.

33/ Ibid.

-

341 Nodgkinson, Harold L . , School Desegregation, p. 6.

35/ Crain and Mahard, "Desegregation and Black Achievement," p. 47-50;

Hodgkinson, Harold L . , School Desegregation, p . 6-7; and Weinberg, Meyer,

Three Myths, p. 17.

as Coleman and Jencks, have indicated that the impact of the family is so great

that the schools can make little difference.

This position has been challenged

by Cremin who has contended that the real message in the work of Coleman and

Jencks is not that the school does not make a difference in the life of a child,

but that the family makes a powerful difference. %/

He points out that school-

ing has such prominence in the current concept of education that the school receives virtually all of the blame or the praise for the educational outcomes.

Even though children may enter the educational system with varying levels of

ability and irrespective of the success that the school may have in reducing the

disparities, the school is blamed for the disparities that exist when the child

leaves the school.

Self-concept and Career Aspirations.

Research in this area is somewhat li-

mited, but there are certain common findings that provide information about some

commonly held concerns.

Research findings do not support the contention that

black self-concept is damaged when black and white children attend the same

school.

x/ The analyses also indicated that black students in inter-racial

schools and desegregated schools appeared to be more resilient and capable of

autonomous action than had been supposed; this countered the contention that the

the self-concept of the black child was too fragile to cope with the strains of

desegregation. =/ Findings from various studies suggest that there have been

some problems in adjustment when black and white students come together in the

36/

Cremin, Lawrence A , , Public Education, Basic Books, New York, 1976,

p. 68.

3 7 / Crain and Mahard, "Desegregation and Black Achievement," p. 47-50;

~ o d ~ k i z o nHarold

,

L . , School Desegregation, p. 6-7; and Weinberg, Meyer,

Three Myths, p. 17-21.

38/ Ibid.

-

desegregated setting, but they do indicate that a constructive relationship has

been worked out in the typical situations. 391

Teachers and Students.

The number of formal studies on relationships be-

tween students and teachers is rather limited, but reports did indicate that

black staff in administrative and teaching roles were viewed as positive factors in improving the learning opportunities for black children.

A key factor

was the degree to which the black teachers were perceived to be a net addition

to the quality of the school's staff.

The evidence did not support the conten-

tion that teachers of one race could not effectively teach children of another

race.

s/

An interesting facet of metropolitan desegregation is that possibilities

exist for educational opportunities to be increased for all students.

In most

cases, a sufficient critical mass of students would be in the metropolitan area

to justify and support a variety of special programs and classes.

Educational

opportunities could be enhanced for all students; the larger student body would

permit special offerings in traditional low demand areas.

Student psychological

services could be increased and programs could be expanded for the gifted and

the handicapped.

In addition, the larger school district might be better able

to provide a broader range of vocational programs.

ALTERNATIVES FOR METROPOLITAN DESEGREGATION

Various alternative solutions have been suggested to bring about metropolitan desegregation.

In the absence of mandatory court orders, decisions to de-

segregate on a metropolitan basis then become voluntary.

The choices may not

result in immediate integration over a large area, but Armor has indicated that

391

-

Ibid.

40/ Ibid.

-

voluntary plans could have the advantage of reducing the social costs attributable to a reversal in the erosion of public confidence in education that often

accompanies large scale mandatory desegregation.

421 Among the approaches that

431

might be used are the following: Reorganization of the School District Structure

The geographical boundaries of local school districts could be changed by

the State so that each district has a specified level (or range) of racial balance.

If this were done, the integration problem then would be an intra-district

issue and could be resolved under current legal precedent.

Creation of Special Metropolitan Units

In the same manner that inter-district service and taxing units were formed

for a limited purpose, a special metropolitan unit could be established whose purpose would be to assign pupils to schools within the multi-district unit in a manner that would bring about racial balance in the larger geographical area.

This

might infringe upon some of the traditional prerogatives of local school districts,

but would accomplish the goal of desegregating the schools.

Shared Services

Local school districts have a history of contracting among themselves for

specific programs, i.e., gifted, handicapped, and vocational education.

The con-

cept of special purpose schools, alternative schools, or magnet schools located

throughout a metropolitan area is illustrative of one possible approach.

421 Armor, David J . , White Flight, p. 47.

431 Rashman, Mary, Metropolitan School Desegregation, Education Commission

of theStates, Denver, Colorado, March 1979, pp. 17-19; and Hodgkinson, Harold L.,

School Desegregation, pp. 16-17.

Traditional assignment policies related to schools and school district

boundaries might be waived so that students could select the schools they wish

to attend.

Programmatic emphases in a series of schools could vary so that stu-

dents would be able to select the school that was most compatible with their

interests.

In all likelihood, some controls would need to be established to as-

sure that the special schools did not become racially imbalanced.

One of the limitations of this approach is that such programs have traditionally been limited to high school or special needs pupils; elementary school

pupils would be minimally affected under the shared services approach. However,

one approach that has been used to address the segregation problem in elementary

schools is clustering or pairing of schools and then cross-busing students to

achieve racial balance between or among the areas.

This option is available to

local districts on a voluntary basis, but has been used in only a few instances.

Voluntary Inter-district Transfers

Voluntary transfer programs are in effect in Massachusetts, New York, and

Wisconsin at the current time.

The programs have been somewhat limited and

essentially one way (central city to suburb), but they reportedly have been reasonably successful in providing educational benefits to the children directly

involved.

The combination of a voluntary transfer program and the magnet school

concept might provide the quantity of leverage needed to bring about a sufficient

interchange of students so that such programs would move beyond tokenism. Magnet

schools could be located at various sites throughout the metropolitan area, and

evidence would then become available concerning the power of these schools to

attract students.

At that point, determinations could be made as to the adminis-

trative and programmatic feasibility of inter-district assignment of students.

The current experience in the large school districts in the Southeast might be

c o n s t r u e d a s m e t r o p o l i t a n d e s e g r e g a t i o n of s c h o o l s , b u t e a c h i s a s i n g l e l a r g e

school d i s t r i c t r a t h e r than a multi-school

d i s t r i c t metropolitan area.

Many of t h e c o n c e r n s r e l a t i v e t o m e t r o p o l i t a n d e s e g r e g a t i o n e f f o r t s a r e

r e l a t e d t o t h e g e o g r a p h i c a l s i z e of t h e s c h o o l d i s t r i c t .

E f f o r t s such a s

Wilmington and t h e county u n i t d i s t r i c t s i n t h e S o u t h e a s t have r e s u l t e d i n

l a r g e s c h o o l d i s t r i c t s w i t h o n l y o n e g o v e r n i n g body; h o w e v e r , s h a r e d s e r v i c e s ,

v o l u n t a r y p r o g r a m s , a n d m e t r o p o l i t a n p l a n s p r o v i d e t h e o p t i o n of m a i n t a i n i n g

some t y p e of l o c a l g o v e r n a n c e s t r u c t u r e f o r s c h o o l s and s t i l l b r i n g i n g a b o u t

i n t e g r a t i o n of t h e s c h o o l s i n a m e t r o p o l i t a n a r e a .

LEGAL HISTOriY OF >lETROPOLITAN SCIIOOL DESEGREGATION

In the years since the Supreme Court's seminal decision in Brown v. Board

of Education 4 4 1 the law of school desegregation has undergone a process of continuous evolution, both with regard to legal standards for proving unconstitutional segregation and the scope of appropriate remedies.

Brown ruled that the Equal

Protection Clause forbade State statutes that required or permitted, by local

option, separate schools for black and white students.

For the next two decades,

all desegregation cases to reach the Supreme Court involved such "dual school

systems," mainly in the South, with a long history of racial separation pursuant

to explicit governmental policy.

In these cases, the "State action" necessary

to invoke equal protection safeguards was manifestly present; existing segregated

conditions within a school district that had, prior to -Brown,

practiced segregation by statute were presumed to be unconstitutional "vestiges" of the former dual

school system. 451

During the same period, the nature of the obligation placed on school officials evolved from the mere cessation of overt racial assignment, the target of

Brown, to elimination of the "effects" of the former dual system.

In Green v.

County Board of Education, the Court held school officials to have an "affirmative duty" to abolish the "last vestiges" of a dual school system, including all

441

-

347 U.S. 4 8 3 ( 1 9 5 4 ) .

4 5- .1 -Swann v. -Board

of

W r i o h t v.- r n l r n r i l n f

-- E

- -d-~-~- c- -a -t -i- o, nb.n- 7- 11.S.

- - - - 1- 1 1 9 7 1 1 - .

.-City o f~ m ~ o r i a407

, U.S. 4 5 1 ( 1 9 7 2 ) ; United States v. Scotland Neck Soard of Education. 407 U.S. 4 8 4 ( 1 9 7 2 )

-

\ - - . - I ,

L3..-

1

"racially-identifiable" schools. 461

Schools could be racially identifiable by

comparison with other schools in a geograhical area if the racial composition of

the student bodies or staffs or the quality of the physical facilities, curricula, or personnel differed significantly.

Although there is no duty to make

schools identical in all respects, there is a presumption against schools that

diverge markedly from the norm defined by these criteria.

Thus, the Court in

Swann v. Board of Education held that such differences between schools in a former statutory dual system establish a prima facie case that school officials

are continuing to discriminate or that they have failed to remedy fully the ef471

fects of past discrimination. Beginning in the early 1970s, as the judicial focus shifted from school

systems segregated by law at the time of Brown to systems in the urban North without a prior history of State sanctioned segregation, new doctrinal approaches

became necessary.

First, because the origins of "northern-style" segregation

could not be traced to a prior regime of statutory dual schools, additional

standards for determining the existence of forbidden "State action," or so-called

"de jure segregation," had to be developed.

Second, in many parts of the South,

the remedial framework for system-wide or metropolitan desegregation was established long before Brown by a tradition of county-wide school systems.

By con-

trast, the boundaries of northern school systems were frequently drawn along

township or municipal rather than county lines, with metropolitan areas often

461

391 U.S. 430, 438-9 (1968).

In Green, the Court declared that

operating State-compelled dual school systems [are] nevertheless charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination [is] eliminated

to

root and branch." This affirmative duty requires the "school board today.

come forward with a plan that promises realistically to work, and promises realistically to work now." See, also Alexander v. Holmes County Board, 396 U.S. 19

(1969).

" [s]c h z l s boards.

. .

..

471

-

402 U.S. 1, 25-27 (1971).

encompassing many independent school districts.

Further complicating the deseg-

regation process is the fact that many inner city systems are predominantly black,

while the suburban school districts are largely, often overwhelmingly white.

In

the face of this demographic reality, northern litigants have increasingly sought

metropolitan solutions to segregation problems, either by consolidating school

districts or by transferring students between city and suburban schools.

481 the Supreme Court for the first

Six years ago, in Milliken v. Bradley, time delineated the circumstances under which school district lines could be

disregarded in formulating remedies for unconstitutionally segregated school

systems.

By a narrow five to four margin, the Court reversed a lower court order

requiring a metropolitan area plan for the Detroit schools, which were found to be

unlawfully segregated.

But in doing so the Court outlined when such a remedy

might be appropriate.

In essence, the majority held that a prerequisite for

inter-district relief was not only "a current condition of segregation resulting

from intentional State action," but also a violation that was of an inter-district

character.

Thus, in the Detroit case the scope of the remedy exceeded "the nature

and extent of the constitutional violation," which was confined to Detroit. 491

The Decision in Milliken v. Bradley

By its rejection of a proposed inter-district remedy for segregated schools

in Detroit and its suburbs, the Court's 1974 decision in the blilliken case raised

481 418 U.S. 717 (1974). Xilliken however, was not the first interdistrict desegregation case to reach the Supreme Court. In 1973, the Court summarily affirmed, by a four-to-four vote (Judge Powell abstaining), a Fourth Circuit decision voiding a three-county desegregation plan for the Richmond, Virginia

area. Bradley v. -State Board of Education, 412 U.S. 92 (1973). The court of

appeals had found that inter-district relief was warranted only where the defendants were shown to have "conspired" to segregate schools across county lines.

However, because the Supreme Court was evenly divided and issued no opinion in the

Richmond case, and Milliken articulates other, broader grounds for an inter-district

remedy, the affirmance may be regarded as having no precedential value.

some i n i t i a l d o u b t s a b o u t t h e f u t u r e of m e t r o p o l i t a n d e s e g r e g a t i o n .

In that case,

t h e d i s t r i c t c o u r t found t h a t t h e D e t r o i t s c h o o l board had committed numerous a c t s

of de j u r e s e g r e g a t i o n w i t h i n t h e D e t r o i t s c h o o l d i s t r i c t , i n c l u d i n g t h e u s e of

o p t i o n a l a t t e n d a n c e zones i n t r a n s i t i o n neighborhoods, r e f u s i n g t o a s s i g n white

s t u d e n t s t o u n d e r u t i l i z e d , p r e d o m i n a t e l y b l a c k s c h o o l s , and c o n s t r u c t i n g and c l o s i n g s c h o o l s i n a manner t o promote s e g r e g a t e d a t t e n d a n c e p a t t e r n s .

However, none

of t h e v i o l a t i o n s , w i t h t h e e x c e p t i o n of a s i n g l e c o n t r a c t i n t h e l a t e 1950s f o r

t h e e d u c a t i o n i n D e t r o i t of s t u d e n t s from a p r e d o m i n a n t l y b l a c k s u b u r b - w h o were

r e f u s e d a d m i s s i o n t o n e a r b y w h i t e s u b u r b a n h i g h schools--had

d i s t r i c t segregation.

resulted i n inter-

Nor d i d t h e c o u r t h e a r e v i d e n c e o r make s p e c i f i c f i n d i n g s

t h a t any s c h o o l d i s t r i c t o u t s i d e D e t r o i t had o t h e r w i s e engaged i n u n c o n s t i t u t i o n a l

a c t i v i t y , o r t h a t t h e S t a t e of Michigan had drawn s c h o o l d i s t r i c t l i n e s w i t h t h e

i n t e n t i o n of f o s t e r i n g s e g r e g a t i o n .

Nevertheless, the d i s t r i c t court held t h a t

e f f e c t i v e d e s e g r e g a t i o n c o u l d n o t be a c c o m p l i s h e d w i t h i n t h e c o r p o r a t e l i m i t s of

the city.

It t h e n d e s i g n a t e d 5 3 s u b u r b a n d i s t r i c t s p l u s D e t r o i t a s t h e a p p r o p r i -

a t e "desegregation a r e a . "

The d i s t r i c t c o u r t o r d e r was a f f i r m e d on a p p e a l t o t h e

Sixth Circuit.

The Supreme C o u r t r e v e r s e d , f i v e t o f o u r , h o l d i n g t h a t a F e d e r a l c o u r t i s

n o t empowered t o impose s u c h a remedy u n l e s s a c t s of t h e S t a t e o r l o c a l s c h o o l

d i s t r i c t s have b e e n a s u b s t a n t i a l c a u s e of i n t e r - d i s t r i c t

segregation.

The

C o u r t r u l e d t h a t w h i l e s c h o o l d i s t r i c t l i n e s may be b r i d g e d on a showing of cons t i t u t i o n a l v i o l a t i o n having a n " i n t e r - d i s t r i c t "

e f f e c t , " t h e notion t h a t school

d i s t r i c t s l i n e s may be c a s u a l l y i g n o r e d o r t r e a t e d a s mere a d m i n i s t r a t i v e conveni e n c e i s c o n t r a r y t o t h e h i s t o r y of p u b l i c e d u c a t i o n i n t h i s c o u n t r y . "

The C o u r t

c o n s i d e r e d a s c o n t r o l l i n g a p r i n c i p l e s e t f o r t h i n Swann t h a t " t h e s c o p e of t h e

remedy i s d e t e r m i n e d by t h e n a t u r e and e x t e n t of t h e c o n s t i t u t i o n a l v i o l a t i o n . "

Inter-district

r e l i e f was p r o p e r l y a v a i l a b l e o n l y where i t was d e m o n s t r a t e d t h a t

the constitutional violation embraced more than one school district.

In the

words of the Chief Justice:

Before the boundaries of separate and autonomous school districts may

be set aside by consolidating the separate units for remedial purposes

or by imposing a cross-district remedy, it must first be shown that

there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the State

or local school districts, or of a single school district have been a

substantial cause of inter-district segregation. Thus, an interdistrict remedy might be in order where the racially discriminatory

acts of one or more school districts caused racial segregation in an

adjacent district, or where districts lines have been deliberately

drawn on the basis of race. In such circumstances, an inter-district

remedy would be appropriate to eliminate the inter-district segregation

caused by the constitutional violation. Conversely, without an interdistrict violation and inter-district effect, there is no constitutional

501

wrong calling for an inter-district remedy. Thus, the majority in Milliken concluded that, absent a finding of inter-district

violation and effect, the district court was not empowered to order inter-district

relief merely because agencies with state-wide authority were found to be involved

in maintaining segregation in the Detroit schools.

The constitutional right of Kegro respondents residing in Detroit is

to attend a unitary school system in that district. Unless petitioners

drew the district lines in a discriminatory fashion, or arranged for

white students residing in the Detroit district to attend schools in

[suburban districts], they were under no constitutional duty to make

provisions for Negro students to do so. The view of the dissenters,

that the existence of a dual system in Detroit can be made the basis

for a decree requiring cross-district transportation of pupils cannot

he supported on the grounds that it represents merely the devising of a

suitably flexible remedy for the violation of rights already established

511

by our prior decisions. Milliken thus indicates that an inter-district remedy is appropriate only

if there is a showing that school authorities or the State have contributed to

significant inter-district segregation by purposeful, racially discriminatory

action.

The majority found it unnecessary to determine whether governmental

511

-

4 1 8 U.S. at 7 4 5 .

policies in housing acted to contain blacks in Detroit.

"[Tlhis case does not

present any question concerning possible State housing violations." 521

-

Similar-

ly, Justice Stewart, concurring, found that the record failed to show that the

"racial composition of the Detroit school population or the residential patterns

within Detroit and in the surrounding areas were in any significant measure caused

by governmental activity."531

But in addition to intentional gerrymandering of

school district lines, Justice Stewart clearly indicated that, in his view, "purposeful, discriminatory use of housing or zoning laws" may serve as a basis for

inter-district remedial relief.

"Were it to be shown, for example, that State of-

ficials had contributed to the separation of the races.

. . by pu:poseful,

racially

discriminatory use of State housing or zoning laws, then a decree calling for transfer of pupils across district lines or for restructuring lines might be appropriate. 541

521 418 U.S. at 728, n. 7.

53/ 418 U.S. at 756, n. 2 (Stewart, J., concurring).

541 418 U.S. at 755 (Stewart, J., concurring). In a subsequent ruling,

~ i l l i k e n11, the Supreme Court affirmed a district court order, entered on remand from Milliken I, requiring the Detroit School Board to implement compensatory programs in the areas of reading, in-service teacher training, testing and

counseling as part of a plan to desegregate the city's schools. The Court also

affirmed the requirement that the costs of those programs be borne equally by the

School Board and the State. 433 U.S. 267 (1977).

In so doing, the Court noted that the remedial plan did not break new legal

ground; rather, plans going beyond mere pupil reassignment had been expressly

approved in Swann and earlier decisions. Where the record warrants, such relief

can be ordered, and the district court did not abuse its discretion in going beyond the proposals proffered by school authorities. Citing its earlier opinion

in Milliken I, the Court stated that "where, as here, a constitutional violation

has been found, the remedy does not 'exceed' the violation if the remedy is tailored to cure the 'condition that offends the Constitution.'"

Additionally, the Court ruled that the Eleventh Amendment did not bar the

district court from ordering the State to share costs because, under Edelman v.

Jordan, 415 U.S. 651 (1974), a decree requiring the payment of State funds" as

a necessary consequence of compliance in the future with a substantive Federalquestion determination" is perfectly proper. The Court also concluded that there

was no merit to petitioners' claims that the relief ordered violates the Tenth

Amendment or principles of federalism.

POST-MILLIKEN CASES INVOLVING INTER-DISTRICT OR XETROPOLITAN SCHOOL

DESEGREGATION REMEDIES

Since Milliken, both Federal and State courts have held inter-district

and the Supreme Court summarily affirmed the

remedies proper in eight cases, 5/

order in one of these. 561

In addition, by denying review in the Indianapolis

case on the opening day of its 1980 term, 571 and to a metropolitan busing order

581 the Supreme Court may have provided further

in Wilmington the term before, impetus for metropolitan desegregation efforts.

The remainder of this section

will consider these post-Milliken inter-district cases for the guidance they

provide with respect to the principles set forth in the Detroit case.

551 Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), aff'd mem., 423 U.S. 963

(1975)Fon remand 416 F. Supp. 328 (D. Del. l976), aff 'd as modified 555 F. 2d 373

(3d Cir. 1977), cert. denied 434 U.S. 880 (1977), rehearing denied, 434 U.S. 944

Del.), aff 'd 582 F. 2d 750 (1978), cert. denied 100

(1977), 447 F. Supp. 982

S. Ct. 1862 (1980); United States v. Board of School Commissioners,

-419 F. Supp.

180 (S.D. Ind. 1975), aff'd 541 F. 2d 121 (7th Cir. 1976), vacated and remanded

429 U.S. 1068 (1977), 573 F. 3d 400 (7th Cir. :978), cert. denied 439 U.S. 824

(1978), on remand 456 F. Supp 193 (S.D. Ind. 1978); Newburg Area Council, Inc. v.

Board of Education, 510 F. 2d 1358 (6th Cir. 1974), cert. denied 421 U.S. 931

(1975), unreported decision on remand, aff'd 541 F. 2d 538 (6th Cir.), cert. denied

429 U.S. 1074 (1976); United States v. Missouri, 515 F. 2d 1365 (8th Cir.) (en banc),

cert. denied 423 U.S. 951 (1975); Berry v. School District, 467 F. Supp. 721 (W.D. Mo.

--1978) (ordering defendants to submit remedies for inter-district violations);

School District v. Missouri, 460 F. Supp. 421 (W.D. No. 1978) (refusing to dismiss

plaintiff's suit for inter-district relief on defendants' motion under Fed. R.

Civ. P. 12(b)(6)),

appeal dismissed, 592 F. 2d 493 (8th Cir. 1979); hlorrilton

School Dist. No. 32 v. United States, 606 F. 2d 222 (8th Cir. 1979), cert. denied

48 U.S.L.W. 3535 (S. Ct. 2/19/80); Tinsley v. Palo Alto Unified School District,

91 Cal. App. 3d 871, 154 Cal. Rptr. 591 (1979) (avoided Milliken in upholding

plaintiff's suit by predicating relief on State constitutional grounds).

561

Evans v. Buchanan, 393 F. Supp. 428 (D. Del), aff'd mem., 423 U.S. 963

(1975)571 Metropolitan School District of Perry Township v. Buckley, No. 791975, G r t . denied 49 U.S.L.W. 3238 (S. Ct. lO/O7/8O).

581

-

Delaware State Board of Education v. Evans, 100 S. Ct. 1862 (1980).

-

Indianapolis, Indiana

The I n d i a n a p o l i s l i t i g a t i o n began i n t h e 1 9 6 0 s a s a t r a d i t i o n a l i n t r a d i s t r i c t desegregation s u i t .

It e v o l v e d o v e r n e a r l y two decades t o a m e t r o p o l i t a n -

wide c a s e , e v e n t u a l l y i n v o l v i n g e i g h t s u b u r b a n s c h o o l d i s t r i c t s , s e v e r a l S t a t e

o f f i c i a l s , and t h e Housing A u t h o r i t y of t h e C i t y of I n d i a n a p o l i s ( I U C I ) .

The

c a s e was among t h e f i r s t a f t e r M i l l i k e n which d e a l t w i t h t h e l i m i t a t i o n s imposed,

and t h e p o s s i b i l i t i e s l e f t open, by t h a t d e c i s i o n f o r m e t r o p o l i t a n r e l i e f .

I n i t s f i r s t r u l i n g following M i l l i k e n , t h e Seventh C i r c u i t reversed i n

part an inter-district

Commissioners. 591

remedy i n U n i t e d S t a t es v. I n d i a n a p o l i s Board of S c h o o l

The e v i d e n c e i n i t i a l l y p r e s e n t e d i n t h e d i s t r i c t c o u r t was

very similar t o t h a t i n t h e D e t r o i t c a s e .

T r a c i n g t h e l o n g h i s t o r y of r a c i a l

s e g r e g a t i o n i n t h e I n d i a n a p o l i s P u b l i c S c h o o l s ( I P S ) , t h e c o u r t found t h a t t h e

s y s t e m was d e j u r e s e g r e g a t e d a s a r e s u l t of t h e b o a r d ' s g e r r y m a n d e r i n g of a t t e n d a n c e z o n e s , s e g r e g a t i o n of f a c u l t y , u s e of o p t i o n a l a t t e n d a n c e z o n e s , d i s c r i m i 601

n a t o r y s c h o o l c o n s t r u c t i o n , s i t e s e l e c t i o n , and f e e d e r p a t t e r n s . -

Thereafter,

t h e d i s t r i c t c o u r t p e r m i t t e d t h e Buckley p l a i n t i f f s , r e p r e s e n t i n g a c l a s s of b l a c k

s c h o o l c h i l d r e n , t o e n t e r t h e c a s e a s i n t e r v e n o r s and o r d e r e d t h e a d d i t i o n , a s

d e f e n d a n t s , of t h e S t a t e of I n d i a n a and 10 s u b u r b a n s c h o o l d i s t r i c t s , b o t h w i t h i n

and o u t s i d e of Marion County, t o c o n s i d e r t h e a p p r o p r i a t e n e s s of a m e t r o p o l i t a n

remedy.

Although numerous de j u r e v i o l a t i o n s w e r e proven i n t h e c i t y s c h o o l d i s t r i c t , t h e r e was n o showing t h a t t h e y had c o n t r i b u t e d t o i n t e r - d i s t r i c t

tion.

segrega-

Nor was t h e r e e v i d e n c e t h a t t h e s u b u r b a n d i s t r i c t s had committed any a c t s

591 503 F . 2d 6 8 ( 7 t h C i r . 1 9 7 4 ) , r e v ' g 368 F . Supp. 1191 (S.D. I n d . 1 9 7 3 )

c e r t . d e n i e d 421 U.S. 929 ( 1 9 7 5 ) .

601 332 F . Supp. 655 (S.D. I n d . 1 9 7 1 ) , a f f ' d , 474 F . 2d 81 ( 7 t h C i r . 1 9 7 3 ) ,

c e r t . d e n i e d , 413 U.S. 920 ( 1 9 7 3 ) .

of de jure segregation within their own borders.

The district court declined to

rule, initially, on the intervenors' contention that the "Uni-Gov" Act, enacted

by the State Legislature in 1969 to permit a consolidation of the city government

with that of Marion County, had the effect of perpetuating segregation by excluding school districts from the merger of governmental functions. 611

At the end

of a second trial, however, the court held that the discriminatory acts of the

Indianapolis board could be imputed to the State of Indiana, and found tkpt the

State Board of Education and other State agencies had, by acts of "commission

and omission," practiced de jure segregation.

The court weighed possible deseg-

regation remedies and concluded that meaningful desegregation in Indianapolis

could not be achieved by a remedy limited to the city schools because it would

accelerate "white flight" to the suburbs. 621

The Seventh Circuit reversed and remanded the case one month after the

Supreme Court decision in Nilliken.

The court of appeals held that the district

court order was invalid to the extent that it applied to school districts outside

of Marion County, because Yilliken required that acts of de jure segregation with

611 The "Uni-Gov" Act, and companion legislation passed by the Indiana

Legislature in 1969, carved an exception out of a 38 year-old law on local

government consolidations so that Indianapolis could merge with its surrounding

suburbs in Marion County for all major purposes except school districting. As

a result of this merger, Uni-Gov succeeded to most of the functions of the city

and county governments and of numerous special service districts. Under Indiana

law prior to 1969, the consolidation of the city and county functions would automatically have resulted in concommitant expansion of the IPS. But 16 days before final passage of Uni-Gov, the legislature repealed the prior law as applied

to cities of the first class, of which Indianapolis was the only one in the State,

with the effect of separating for the first time the boundaries of IPS and the

City of Indianapolis. Accordingly, the IPS could thereafter enlarge its territory only by agreement with the losing district, or by annexation. Both were

subject to "remonstrance" and the law further provided that any annexations not

yet effective were, in the district court's phrase, "cancelled by legislative

fiat." Thus, a metropolitan government for all Marion County was created while

the school systems of the city and county remained intact.

62/

-

368 F. Supp. 1191, 1198 (S.D. Ind. 1973).

inter-district effects must be found before an inter-district remedy can be ordered.

Passage of the Uni-Gov Act provided a possible basis for such a finding, but the

suburbs outside llarion County were not included in Uni-Gov and so were not affected

by the Uni-Gov Act's exclusion of school district consolidation.

As to the school

districts within Xarion County, the appeals court vacated and remanded for further

proceedings to "determine whether the establishment of Uni-Gov boundaries without

a like re-establishment of the IPS boundaries warrants an inter-district remedy

within Uni-Gov in accordance with Milliken." 631

On remand, the district court found that Uni-Gov's exclusion of school district consolidation was a violation of the Equal Protection Clause. 64/

Further,

this violation had the requisite inter-district segregative effect to trigger an

inter-district remedy under Milliken, because Marion County would have had a single

school system but for the exclusion of school district consolidation from Uni-Gov.

In addition, the court found that the suburban Xarion County governments:

...

have resisted school consolida~ion,they have resisted civil

annexation so long as civil annexation carried school annexation with

it, they ceased resisting civil annexation only when the Uni-Gov Act

made it clear that the schools would not be involved. Suburban

Marion County has resisted the erection of public housing projects

outside IPS territory, suburban Marion County officials have refused

to cooperate with HUD on the location of such projects, and the customs and usages of both the officials and inhabitants of such areas

have been to discourage blacks from seeking to purchase or rent homes

therein, all as shown in detail in previous opinions of this Court. 651

The district court also held that HACI, which had jurisdiction five miles beyond

the city limits, had perpetuated the segregation of blacks in the IPS territory.

63/ 503 F. 2d 68, 80 (7th Cir. 1974), cert. denied 421 U.S. 929 (1975).

641 419 F. Supp. 180 (S.D. Ind. 1975).

651

-

419 F. Supp. at 182-83.

The court therefore ordered an inter-district remedy which included an injunction

prohibiting HACI from further construction of public housing within the city. 66/

The Seventh Circuit affirmed both with respect to Uni-Gov and the district

court findings of public housing violations.

In regard to the former, the appeals

court stated that "[tlhe record fails to show any compelling State interest that

would have justified the failure to include IPS in the Uni-Gov legislation."

Ad-

mitting that there were legitimate considerations of school system size, the loss

of citizen participation, and increased taxes for excluding schools from Uni-Gov,

the court nevertheless stated that "[tlhese considerations, although not racially

motivated, cannot justify legislation that has an obvious racial segregative impact."

As to housing, the court found that all public housing projects for fami-

lies, in which 98 percent of the residents were black, were restricted to the

inner city of Indianapolis.

The suburbs resisted building any public housing out-

side the city, and this affected the disparate racial composition of the schools

671

in the city and suburban area. 66/ Pending the outcome of appeals, the district court in an unreported

memorandum of decision on August 1, 1975 ordered limited inter-district relief

requiring the transfer of black students from IPS grades one through nine in such

numbers that each transferee suburban school would have a 15 percent black enrollment. The suburban school defendants were ordered to accept the transfers for

the 1975-76 school year and each year thereafter. The decision indicated that the

order would require the transfer of 6,533 students in grades one through nine from

IPS to suburban schools for the fall of 1975, with the number increasing over the

next four years, as high school students were included, until approximately 9,925

black students would be transferred to the suburban school districts. However,

this initial order was never implemented as the defendant schools on August 22,

1975 sought and obtained a stay of the order from the Seventh Circuit Court of

Appeals. Thereafter, on August 20, 1976, Justice Stevens further delayed implementation of inter-district desegregation of Marion County schools by continuing

the stay pending review by the U.S. Supreme Court. Metropolitan School District

of Perry Township v. Buckley, Uo 76-212 (U.S., August 20, 1976).

671 On the issue of the housing remedy, the court of appeals stated:

"It i s ~ b v i o u sthat there is a close relationship between the racial balance in

The record supports [the lower

housing and the racial balance in schools.

court's] findings and clearly shows a 'purposeful, racially discriminatory use of

State housing.' Milliken v. Bradley

(Stewart, J., concurring)

Accordingly, the district court did not abuse its discretion in enjoining the Housing

Authority from building additional projects within IPS." 541 F 2d. 1222-23.

...

.. .

...

1

The dissenting judge on the Seventh Circuit panel, Judge Tone, objected

that the majority failed to properly apply Washington v. Davis which, he asserted,

precluded a finding of constitutional violation based solely on the disproportionate racial impact of otherwise neutral State action.

He took issue with the

district court's findings of racial discrimination in the exclusion of school district consolidation from Uni-Gov and in HACI's building low-income housing projects only in IPS territory.

Indicating possible agreement, the Supreme Court,

as noted above, vacated and remanded the appeals court ruling for reconsideration

681

in view of the Davis and Arlington Heights case, without an explanatory opinion. On remand, the court of appeals reaffirmed that the passage of Uni-Gov and

its companion legislation met the requirements of Yilliken and could therefore

provide a predicate for a metropolitan remedy if the district court found that the

691

Indiana legislature acted with a racially discriminatory intent or purpose. In this regard, the court adopted an "objective" standard, inferring a forbidden

purpose or intent from acts of the legislature having "natural and forseeable"

segregative consequences.

The district court was directed, therefore, to make

additional findings as to the intent of the legislature in enacting Uni-Gov and

to consider, in addition, whether HACI and county planning authorities "acted

701

with an invidious purpose in limiting the construction of public housing to IPS." -

681

-

Board of School Commissioners v. Buckley, 429 U.S. 1068 (1977).

691

-

573 F. 2d 400 (7th. Cir. 1978).

701 573 F. 2d at 414. With respect to the alleged housing violations, the

appealscourt stated that "an inter-district desegregation remedy is appropriate

if the following circumstances are shown to exist (given the fact that there is a

vast racial disparity between IPS and the surrounding school districts within the

'new' City of Indianapolis):

(1) that discriminatory practices have caused segregative residential housing patterns and population shifts; (2) that State action,

at whatever level, by either direct or indirect action, initiated, supported, or

(continued)

The l a t e s t d i s t r i c t c o u r t r u l i n g made t h e s p e c i f i c f i n d i n g s r e q u i r e d by

t h e S e v e n t h C i r c u i t and r e i n s t a t e d i t s i n t e r i m o r d e r of August 1 , 1 9 7 5 , t o a p p l y

t o t h e 1978-79 and s u b s e q u e n t s c h o o l y e a r s .

711

As a p r e l i m i n a r y m a t t e r , t h e

c o u r t r e v i e w e d t h e h i s t o r i c a l r e c o r d and found t h a t u n t i l t h e 1 9 5 0 s , b l a c k s

had b e e n s u b j e c t e d t o a regime of s e g r e g a t e d t r e a t m e n t i n r e g a r d t o h o u s i n g ,

e d u c a t i o n , and o t h e r p u b l i c f a c i l i t i e s w i t h i n t h e S t a t e .

U n l i k e most S t a t e s

i n t h e n o r t h and w e s t , I n d i a n a had u n t i l 1949 p r a c t i c e d s e g r e g a t i o n by a c t of

t h e S t a t e l e g i s l a t u r e , j u s t a s was t r u e i n t h e s o u t h e r n and b o r d e r S t a t e s p r i o r

t o Brown.

More i m p o r t a n t l y , however, t h e l e g i s l a t i v e h i s t o r y of t h e Uni-Gov

Act d i s c l o s e d a c t i v e i n v o l v e m e n t of c i t y and c o u n t y o f f i c i a l s a t e a c h s t a g e

of t h e p r o c e e d i n g s , w i t h t h e e x e m p t i o n of IPS m o t i v a t e d by e x p r e s s e d p u b l i c

o p p o s i t i o n t o i n c l u s i o n of s c h o o l s , r a t h e r t h a n any l e g i t i m a t e e d u c a t i o n a l o r

governmental r e a s o n .

A c c o r d i n g l y , i t was " p e r f e c t l y o b v i o u s " t o t h e c o u r t t h a t

the legislature's actions:

. ..

were done, a t l e a s t i n p a r t , w i t h t h e r a c i a l l y d i s c r i m i n a t o r y

i n t e n t and p u r p o s e of c o n f i n i n g b l a c k s t u d e n t s i n t h e IPS s c h o o l system t o t h e 1969 b o u n d a r i e s of t h a t s y s t e m , t h e r e b y p e r p e t u a t i n g t h e

721

s e g r e g a t e d w h i t e s c h o o l s i n s u b u r b a n Y a r i o n County. S i m i l a r l y , t h e d i s t r i c t c o u r t r e a s s e r t e d t h a t H A C I had t h e a u t h o r i t y u n d e r S t a t e

law t o b u i l d h o u s i n g p r o j e c t s i n a d j a c e n t s u b u r b a n a r e a s w i t h i n f i v e m i l e s of t h e

( c o n t i n u e d ) c o n t r i b u t e d t o t h e s e p r a c t i c e s and t h e r e s u l t i n g h o u s i n g p a t t e r n s

and p o p u l a t i o n s h i f t s ; and ( 3 ) t h a t a l t h o u g h t h e S t a t e a c t i o n need n o t be t h e

s o l e c a u s e of t h e s e e f f e c t s , i t must have had a s i g n i f i c a n t r a t h e r t h a n a de

minimus e f f e c t .

F i n a l l y , a n i n t e r d i s t r i c t remedy may be a p p r o p r i a t e e v e n t h o u g h

t h e S t a t e d i s c r i m i n a t o r y h o u s i n g p r a c t i c e s have c e a s e d i f i t i s shown t h a t p r i o r

d i s c r i m i n a t o r y p r a c t i c e s h a v e a c o n t i n u i n g s e g r e g a t i v e e f f e c t on h o u s i n g p a t t e r n s

( a n d , i n t u r n , on s c h o o l a t t e n d a n c e p a t t e r n s ) w i t h i n t h e I n d i a n a p o l i s metrop o l i t a n a r e a . " 5 7 3 F . 2d a t 409.

711 456 P . Supp. 1 8 3 , 1 9 1 (S.D. I n d . 1 9 7 8 ) . See n o t e 66 ( s u p r a ) .

t h i s o r d e r h a s n o t a p p a r e n t l y been implemented t o d a t e .

721

-

456 F . Supp. 1 8 8 .

However

city limits, and that its failure to do so was motivated hy a desire to confine

blacks to the inner city.

Against this backdrop of racial discrimination, can it be said to

be a mere benign coincidence that IIACI and the Commission located all

public housing projects within IPS boundaries? This court thinks

not and specifically holds that the actions of such official bodies

in locating such projects within IPS, as well as the opposition of

the suburban governments to the location of public housing within

their borders, were racially motivated with the invidious purpose

to keep blacks within pre-Uni-Gov Indianapolis and IPS, and to keep

the territory of the added suburban defendants segregated for the

use of whites only. The Court of Appeals has already agreed that

the record shows a 'purposeful, racially discriminatory use of State

.' 731

housing.

.

In addition to reinstating its original 1975 order requiring "one-way" transfers

from IPS to the suburban districts, the district court required the State to fund

a comprehensive in-service training program for teachers and staff of the receiving suburban schools.

Most recently, the Supreme Court denied review of the dis-

trict court's "one-way" busing order for Indianapolis on the opening day of the

741

1980 term. Wilmington, Delaware

Besides the Indianapolis case, perhaps the most widely publicized litigation since 1974 involving a metropolitan desegregation remedy is the Wilmington

case.

Proceedings to desegregate the Wilmington school system date back to the

Belton,

- 75/ which, together with cases from other

1953 ruling in Gebhart v. States that were segregated by law, formed the basis of the Supreme Court's historic ruling in Brown v. Board of Education.

Another suit, Evans v. Buchanan,

was filed in 1957 charging failure to dismantle the dual school system in compliance with the Brown decisions.

731

-

Subsequently, in the course of that litigation,

456 F . Supp. at 189.

741 49 U.S.L.W. 3238 ( S . Ct. 10/07/80).

75/ 33 Del. 144 (1952).

-

spanning more than two decades, the city of Wilmington entered the case as a

plaintiff, and suburban New Castle County districts were joined with the State

as defendants.

Following the Supreme Court ruling in Milliken, the Evans court ordered the

joinder of the suburban school districts for consideration of evidence supporting

an inter-district remedy. 761

Significant in the district court's view was the

pattern of historical interdependence between the city school system and those in

the county.

For many years, the only high school in the area that accepted black

students was located in Wilmington and blacks in the county were required to transfer to the city school.

In addition, before Brown suburban students of both races

had, for a variety of reasons, been transferred across district lines to Wilmington,

and in recent years, the State had subsidized inter-district transportation of

students to private and parochial schools.

The effect of these early line cross-

ings was not fully explained by the court.

But it did note that the concentration

of predominantly white private and parochial schools in suburban New Castle County

made it likely that the current subsidized transfers enabled white students to

flee the Wilmington district, and thereby "undoubtedly served to augment the racial

disparity between Wilmington and the suburban public school population." 771

Fur-

thermore, after Brown abolished the State's former statutory dual school system,

the district court found that "white flight" caused by the use of optional attendance zones in the Wilmington district may likewise "have affected the relative

racial balance in housing and schools in Wilmington and the suburbs." 781

Whether

or not racial motivation could be inferred from these causal effects was not considered by the court, however.

-

761

-

3 9 3 F . Supp. 4 2 8 (D. Del. 1 9 7 5 ) .

7 7 1 3 9 3 F. Supp. at 4 3 7 .

781

-

3 9 3 F. Supp. at 4 3 6 .

As in the case of Indianapolis, the Evans court also found that governmental housing policies had resulted "to a significant degree [in] the increasing

disparity in residential and school populations between Wilmington and its suburbs

791

in the past two decades." -

The court pointed to the discriminatory effects of

official housing policies in the following areas as a factor contributing to interdistrict segregation of students:

FHA mortage policies; enforcement of racially-

restrictive covenants; publication of a discriminatory manual by the State real estate commission; concentration of public housing in the city even though the Wilmington Housing Authority had jurisidiction to site units in part of the surrounding county; and the failure of the county housing authority to build any units since

its creation in 1972.

"The specific effect of these policies was to restrict the

availability of private and public housing to blacks in suburban New Castle County

at a time when housing became increasingly available to them in Wilmington." 801

The most critical factor in the court's analysis, however, related to the

segregative effects of the Educational Advancement Act of 1968, a Delaware school

reorganization statute, which explicitly excluded the Wilmington District from a

general reorganization 9f Delaware school districts.

Although the district court

concluded that the provisions excluding the Wilmington district from school reorganization were not purposefully, racially discriminatory, this did not end its

inquiry.

The court noted that "statutes that do not explicitly deal with race but

have a pronounced racial effect,

fications." 811

. . . can also establish suspect racial classi-

It further stated that "where a statute, either explicitly or

effectively, makes the goals of a racial minority more difficult to achieve than

791

393 F . Supp. at 438.

801

Ibid.

811 393 F. Supp. at 441.

-

other related governmental interests, the statute embodies a suspect racial classification and requires a particularly strong justification." 82/

The court therefore held that the Educational Advancement Act, although

racially neutral on its face, "had a significant racial impact on the policies

of the State Board of Education," and thereby constituted an "inter-district violation" under Milliken.

In effect, the statute prevented a predominantly black

school district from being reorganized into a predominantly white school district

while other districts within the State were able to consolidate.

Neither the

State's asserted interest in preserving an historic school district boundary, nor

promotion of administrative efficiency by maintaining school districts with relatively small enrollments, could justify the exclusion of Wilmington where about

half of all black students in Delaware live and unremedied violations--racially

identifiable schools persisting in a system formerly segregated by law--remained.

On this basis, the district court concluded that the General Assembly had, in

contravention of Milliken, "contributed to the separation of races by redrawing

school district lines," and ordered the preparation of Wilmington-only and interdistrict plans.

The Supreme Court affirmed this decision without issuing an

83/

opinion. In May 1976, the district court ordered the adoption of an inter-district

plan involving 11 suburban school districts. 84/

This decision was affirmed by

the Third Circuit Court of Appeals, and the State Board of Education was ordered

to submit a plan. 85/

After a series of delays and the failure to produce an

82/ 393 F. Supp. at 441.

83/ 423 U.S. 963 (1975).

84/ 416 F. Supp. 328 (D. Del. 1976).

851

-

555 F. 2d 373 (3d Cir. 1977).

acceptable plan, implementation was postponed until September 1978.

The Supreme

Court refused to review this decision, clearing the way for implementation of the

plan approved by District Judge Murray M. Schwartz on January 9, 1978. 861

-

The district court plan employed a "9-3" approach involving all students

in the desegregation area while insuring the use of Wilmington schools for the

full-grade span, including at least one of the city high schools.

Basically, the

plan required use of three-year consecutive grade reassignments and busing for

students living in predominantly white suburban districts, and nine-year reassignments for students in the predominantly black Wilmington district.

In addition,

the court's detailed remedial order required the State to provide noney for a

variety of educational programs to overcome the effects of segregation and to prevent resegregation. 871

Also necessitated by the State legislature's inaction,

Judge Schwartz previously rejected a "10-2"

861 4 3 4 U.S. 880 (1977).

grade-center approach (with 2 grades in Wilmington and 10 grades in the suburbs)

developed by the New Castle County Planning Board of Education that would have

left white students in their neighborhood schools for 10 years and black students

for 2, with Wilmington schools never used for primary grades or senior high school,

despite a location of a Wilmington high school that was "ideal" for desegregation

purposes. The court found that the board's plan deferred to sentiment against

busing younger students, but was apparently insensitive to busing younger black

students. While Judge Schwartz found some disproportionate racial burden unavoidable because of the smaller capacity of schools that were then predominantly black,

he said that the burden should not be excessive where a practical alternative exists

Also rejected was a plan proposed by the State Board of Education dubbed

"reverse volunteerism" whereby every Wilmington black student would be reassigned

to existing suburban districts with the absolute right to transfer back to the Wilmington district. This approach was unacceptable because it "carried with it the

tacit assumption that only--and that all--black students benefit from transferring

to a white environment, and not vice versa," and because it was "totally ineffective" as a remedy for an inter-district violation of the nature and extent found

by the court in this case.

871 Included in this portion of the decree were in-service training of

a d m i n i ~ r a t o r s ,faculty, and other staff ; special programs for reading and communication skills that do not employ resegregative practices; curriculum and materials

free of bias and reflecting cultural pluralism; effective, nondiscriminatory counseling to prevent resegregation and to promote nondiscriminatory offering of vocational training and college preparatory programs; nondiscriminatory policy on new

school construction, additions, and closings; human relations programs for students

and teachers; a nondiscriminatory disciplinary code, procedures, and practices; and

the reassignment of staff to eliminate racial identifiability of faculties.

the district court "with deep seated reluctance" confronted the difficulties arising from the widely disparate local tax rates in the 11 school districts that

were consolidated for purposes of desegregation.

Faced with "imminent peril" if

nothing were done, the court set a maximum rate for the reorganized system within

the range of rates previously existing in the separate districts, leaving the

actual rate for determination by the new school board.

The court further noted,

however, that "the Delaware legislature may raise or lower the tax authorization

established here" provided that it does not imperil the desegregation process. 88/

Finally, the court declined to set up a mechanism for monitoring implementation

but retained jurisdiction of the case until the system is deemed completely unitary, as demonstrated over a reasonable period of time. 891

On a final appeal, the Third Circuit affirmed the plan for student reassignment and ancillary relief adopted by the district court and that court's rejec901

tion of alternative plans proposed by State and county officials. -

In re-

evaluating the extent and continuing impact of the inter-district violation previously found in Wilmington and New Castle County, the appeals court ruled that

881 The district court order conferred on the reconstituted county board

the authority to establish, levy and collect taxes for the current operating

expenses up to a maximum authorized rate of $1.91 per $100 of assessed property

valuation. The new board was also permitted to set a tax rate of up to S.32 for

tuition, debt service, and minor capital improvements. The board established a

tax rate for current operating expenses of $1.68, within the confines of the

court's order, but the Delaware legislature thereafter passed a law directing the

State Board of Education to establish a tax rate for the consolidated district,

which was eventually set at $1.585, or 9-112 cents lower than the county board

rate. The district court later denied the State Board's application for an injunction against enforcement of the county board rate because the court found that

the legislature's action provided "a taxation scheme likely to frustrate or imperil the desegregation process in the single school district." 455 F. Supp.

692, 695.

891 447 F. Supp. 982 (D. Del. 1978).

901

8/21/79).

582 F. 2d 750 (3d Cir. 1978), cert. denied 48 U.S.L.W.

3097 (S. Ct.

t h e p l a n s a t i s f i e d t h e r e m e d i a l d u t y imposed by Swann and M i l l i k e n and conformed

t o t h e " i n c r e m e n t a l s e g r e g a t i v e e f f e c t " s t a n d a r d of Dayton I .

T h a t t h e ' c o n d i t i o n t h a t of f e n d s t h e C o n s t i t u t i o n ' was found t o be

i n t e r - d i s t r i c t i n n a t u r e and e x t e n d i n g t h r o u g h o u t t h e 1 1 - d i s t r i c t a r e a

r e q u i r e d t h a t t h e remedy be c o n g r u e n t w i t h t h e a f f e c t e d g e o g r a p h i c

a r e a . Given t h e p e r v a s i v e n a t u r e of t h e c o n d i t i o n and t h e e x t e n s i v e

a r e a i m p l i c a t e d by t h e f i n d i n g s of t h e t h r e e - j u d g e c o u r t , t h e c o u r t

f a s h i o n e d a remedy t h a t was prima f a c i e r e a s o n a b l e , t o - w i t , a p l a n t h a t

sought t o root out segregative e f f e c t s i n t h e i n t e r - d i s t r i c t a r e a , a

p l a n d e s i g n e d ' t o e x t i r p a t e t h e d e j u r e s e g r e g a t i o n and d u a l s c h o o l

and t o r e s t o r e t h e s c h o o l

s y s t e m s i n N o r t h e r n New C a s t l e County,

s y s t e m t o t h e s t a t u s i t would have e n j o y e d b u t f o r t h e c o n s t i t u t i o n a l

violations'.

I n o u r v i e w , o n c e t h i s showing was made, t h e b u r d e n p a s s e d

t o t h e d e f e n d a n t - a p p e l l a n t s t o d e m o n s t r a t e by e v i d e n c e and t e s t i m o n y

t h a t t h e p r o f f e r e d p l a n was ' a r b i t r a r y , f a n c i f u l , o r u n r e a s o n a b l e , ' by

s p e c i f y i n g i n what r e s p e c t s t h e r e a c h of t h e p l a n exceeded t h e g r a s p of

t h e c o n d i t i o n s c r e a t e d by c o n s t i t u t i o n a l v i o l a t i o n s .

The d e f e n d a n t a p p e l l a n t s f a i l e d t o meet t h i s b u r d e n . 911

...

However, t h e a p p e a l s c o u r t v a c a t e d t h e d i s t r i c t c o u r t o r d e r of Xay 5 , 1 9 7 8 , which

had r e f u s e d t o e n j o i n t h e c o u n t y b o a r d from e n f o r c i n g a t a x r a t e f o r t h e c o n s o l i d a t e d s c h o o l s y s t e m i n e x c e s s of t h a t e s t a b l i s h e d by t h e S t a t e board p u r s u a n t t o

t h e Act of t h e S t a t e l e g i s l a t u r e . 921

I n e f f e c t , t h e T h i r d C i r c u i t concluded t h a t

t h e d i s t r i c t c o u r t had f a i l e d t o a c c o r d " t h e r e q u i s i t e d e f e r e n c e t o which l e g i s l a t i v e judgment i n t h e f i e l d of t a x a t i o n a r e e n t i t l e d . " 931

The d i s t r i c t c o u r t was

911 582 F . 2d a t 766. The a p p e a l s c o u r t found t h e d e f e n d a n t s ' a r g u m e n t s

t h a t the p l a n exceeded t h e r e m e d i a l l i m i t s imposed by Dayton I i n a p p r o p r i a t e f o r

t h r e e other reasons.

F i r s t , i t found t h e Dayton I c l a i m s a " b e l a t e d a t t e m p t " t o

r e l i t i g a t e a n i s s u e a l r e a d y c o n c l u s i v e l y r e s o l v e d by p r i o r p r o c e e d i n g s i n t h e c a s e ,

i n c l u d i n g t h e Supreme C o u r t ' s a f f i r m a n c e of t h e f i n d i n g of a n i n t e r - d i s t r i c t v i o l a tion.

I n a d d i t i o n , Dayton I was d i s t i n g u i s h a b l e i n t h a t t h e system-wide remedy i n

t h a t c a s e was based on t h r e e " r e l a t i v e l y i s o l a t e d " v i o l a t i o n s of " q u e s t i o n a b l e val i d i t y , " whereas t h e r e c o r d i n Wilmington d i s c l o s e d " p e r v a s i v e de j u r e i n t e r d i s t r i c t s e g r e g a t i o n " t h r o u g h o u t t h e d e s e g r e g a t i o n a r e a . F i n a l l y , u n l i k e Dayton I ,

t h e s e " f i r m l y e s t a b l i s h e d c o n s t i t u t i o n a l v i o l a t i o n s " had t h e e f f e c t of p e r p e t u a t i n g s e g r e g a t i o n i n a s c h o o l s y s t e m f o r m e r l y s e g r e g a t e d by law.

S e e , Dayton

Board of E d u c a t i o n v. Brinkman, (Dayton I ) , 433 U . S . 406 ( 1 9 7 7 ) .

921

-

See note 88 (supra).

directed to hold additional hearings to determine the adequacy of the rate established by the State legislature in accordance with the "presumption of regularity

and constitutionality" mandated by relevant judicial decisions.

The appeals court

indicated that only if the amount allocated was "substantially insufficient" to

operate the system would the State's action "clearly be unacceptable as interfering with the operation of the desegregation decree." 94/

Louisville and Jefferson County, Kentucky

When the Supreme Court decided Milliken, it also vacated and remanded for

reconsideration in light of that decision an appeals court order to desegregate

95/

the Louisville and Jefferson County school systems. -

In Newburg, the Sixth

Circuit had held that a finding of contiguous dual school systems in the city and

surrounding county justified the imposition of an inter-district remedy.

In order-

ing the district court to eliminate "all vestiges of State-imposed segregation,"

the Sixth Circuit had declared that "State-created school district lines [are] to

impose no barrier in accomplishing such purpose".

The suit to desegregate schools in the Louisville metropolitan area began as

separate actions against the city and county school systems seeking relief in the

form of a merger of the Louisville district with two other districts in the county.

The district court, in an order entered prior to Milliken, dismissed both lawsuits

on the grounds that it lacked authority to require crossing school district boundaries and that, in any event, segregation within the systems was the consequence

of residential housing patterns and not the unlawful actions of school officials.

9 5 1 Newburg Area Council, Inc. v. Board of Education, 489 F. 2d 925 (6th

Cir. 1 9 7 3 ) , v a c a t e d , d i f i e d

and reinstated, 510 F. 2d 1358 (6th

Cir. 1974), cert. denied, 421 U.S. 931 (1975).

The Sixth Circuit reversed, holding that the school districts were de jure

segregated and that school attendance policies based on geographical zoning were

not adequate to remedy the unconstitutional conditions.

Specifically, the court

noted that prior to 1954 both the city and county school boards operated separate

schools for black and white students as then required by Kentucky law.

It also

found that these schools remained racially identifiable to the present, and that

segregated conditions had been aggravated by school board practices related to

new school construction and student attendance policies.

For example, pointing

to an elementary school in the county that had remained segregated since before

Brown, the court concluded that vestiges of the dual school system were not eliminated as long as the school remained all black.

Since the Jefferson County Board has not eliminated all vestiges of

State-imposed segregation from the system, it had the affirmative

responsibility to see that no other school, in addition to Newburg,

would become a racially identifiable black school. It could not be

'neutral' with respect to students on assignments at [the other

elementary schools]. It was required to insure that neither school

96/

would become racially identifiable. In addition, it appeared that county board policies had led to "under-utilization"

of certain black schools while other facilities in nearby white neighborhoods were

operated with enrollments greater than capacity.

Similarly, the Louisville board was found, inter alia, to have maintained an

"open enrollment" policy which had the effect of aggravating segregation by enabling white students who were assigned to black schools to transfer out.

Despite

so-called "integration plans" adopted in the intervening years by the ~ouisville

Eoard of Education, the court found that over 80 percent of the schools in Louisville remained racially identifiable in a school system that was 50 percent white.

Since the effects of the pre-Brown State-imposed segregation still remained in the

Louisville school system, the Sixth Circuit also reversed the trial judge's dismissal of the suit against the Louisville board and remanded both cases for further proceedings.

Meanwhile, the Supreme Court issued its ruling in Milliken prohibiting an

order for inter-district relief in the absence of a constitutional violation with

inter-district effects.

Because the order in the Louisville and Jefferson County

cases covered all school districts in Jefferson County, the Supreme Court vacated

the order and sent the case back to the Sixth Circuit for reconsideration in light

971

of Milliken. On remand, the Sixth Circuit reinstated its order. 981

In support of the

conclusion that an inter-district remedy was appropriate, the court emphasized

certain factors distinguishing J~ouisville and Jefferson County from the situation

in Detroit.

First, the court noted that the boundary lines between the Louisville

and Jefferson County school districts had been frequently disregarded in the past

to aid segregation, while ?lilliken involved only one such instance.

In addition,

the expansion of the municipal boundaries of Louisville without concurrent expansion of the city school district had resulted in a substantial number of white

Louisville residents attending schools in the county.

The Sixth Circuit also ob-

served the importance of the county as the primary unit of government in Kentucky

and that there were only three school systems involved, not 53 separate districts

as in the Detroit metropolitan area.

Thus, a metropolitan remedy would be consi-

derably less complex to administer than it would have been in Eiilliken.

Host important, however, was the fact that unlike Detroit, both the Louisville and Jefferson County school districts were "equally guilty in failing to

971 418 U.S. 918 (1974).

981

-

510 F . 2d 1358 (6th Cir. 1974).

eliminate all vestiges of segregation mandated by the same Kentucky statute."

Because of this, the court reasoned that it could not allow the school districts

to remain separate where the effect would be to impede disestablishment of the

dual school systems.

A vital distinction between Milliken and the present cases is that

in the former there was no evidence that the outlying school districts had committed acts of de jure segregation or that they were

operating dual school systems. Exactly the opposite is true here

since both the Louisville and Jefferson County School Districts

failed to eliminate all vestiges of State-imposed segrehave.

gation. Consequently, as contrasted with the outlying Nichigan

districts, they are guilty of maintaining dual school systems. 991

..

This latter rationale suggests that a finding of contiguous dual school systems

may provide an independently adequate justification for an inter-district remedy,

regardless of the extent to which segregative acts in one district affect the

racial composition of schools in an adjoining district.

Subsequently, the inter-district aspect of the Louisville case was effectively mooted when the Louisville Board of Education voted to dissolve itself and con1001

solidate its territory with that governed by the Jefferson County School Board. Thereafter, proceeding on an intra-district basis, the district court on July 30,

1975 ordered a county-wide desegregation plan to be implemented in the fall, and

dismissed the Anchorage Independent School District because there was no evidence

1011

that it had discriminated. -

The plan, developed with the aid of Jefferson County

100/ Following the appeals court's 1974 decision, the Louisville school

district was dissolved pursuant to a procedure authorized by the Kentucky statutes

and the State Board of Education ordered the Jefferson County Board of Education

to merge with the Louisville district to establish a new county school system

that would be 81 percent white. However, had the Louisville board not voted to

relinquish its jurisdiction, it appears likely that the court would have required

implementation of an inter-district remedy. Consequently, the litigation may have

had the effect of prompting administrative action to consolidate the two principal

districts into a single metropolitan whole.

101/ In 1977-78, the Anchorage Independent Schools enrolled slightly over

300 pupils in grades k-9 and the combined enrollment of the public schools in

Louisville and Jefferson County exceeded 114,000 pupils in grades k-12.

districts in St. Louis County, Missouri.

Until 1937, the present Kinloch School

District constituted a single system that operated separate schools for black

and white students pursuant to a ?lissouri law that required segregation in the

public schools.

When the city of Berkeley was incorporated in that year, the

Berkeley District was detached from the present Kinloch District, creating two

almost completely segregated school districts, Kinloch (black) and Berkeley

(white).

Inter-district segregation had been enforced by formal transfer arrange-

ments between the districts until 1954.

The district court found that the edu-

cational opportunities in the present Kinloch School district were vastly inferior

to those in the rest of St. Louis County, and that this inferiority was "a direct

and forseeable consequence of the creation and maintenance of Kinloch as a small,

105/

all-black school district." Racial motivation with respect to the detachment of Berkeley from Kinloch

was inferred from the fact that Xissouri required dual school systems by statute

at the time, and the fact that the school district boundaries themselves were inexplicable on nonracial grounds.

County educational officials had favored the

reorganization of Kinloch District, as had studies commissioned by the State and

county which "uniformly reconmended that the Kinloch District be consolidated with

other school districts."

Anticipating voter rejection, however, neither the State

nor the county had included the Kinloch District in various consolidation plans

proposed for the county.

"[Iln exercising their powers of school district reor-

ganization, State, and county school officials have, because of the race of resident students, treated Kinloch District differently from other similarly situated

106/ In short, racial considerations were found to have entered

school districts." -

-1051 363 F . Supp. at 743.

1061

Ibid.

districts in St. Louis County, Missouri.

Until 1937, the present Kinloch School

District constituted a single system that operated separate schools for black

and white students pursuant to a Missouri law that required segregation in the

public schools. When the city of Berkeley was incorporated in that year, the

Berkeley District was detached from the present Kinloch District, creating two

almost completely segregated school districts, Kinloch (black) and Berkeley

(white).

Inter-district segregation had been enforced by formal transfer arrange-

ments between the districts until 1954.

The district court found that the edu-

cational opportunities in the present Kinloch School district were vastly inferior

to those in the rest of St. Louis County, and that this inferiority was "a direct

and forseeable consequence of the creation and maintenance of Kinloch as a small,

1051

all-black school district." -

Racial motivation with respect to the detachment of Berkeley from Kinloch

was inferred from the fact that Missouri required dual school systems by statute

at the time, and the fact that the school district boundaries themselves were inexplicable on nonracial grounds.

County educational officials had favored the

reorganization of Kinloch District, as had studies commissioned by the State and

county which "uniformly recommended that the Kinioch District be consolidated with

other school districts."

Anticipating voter rejection, however, neither the State

nor the county had included the Kinloch District in various consolidation plans

proposed for the county.

"[Iln exercising their powers of school district reor-

ganization, State, and county school officials have, because of the race of resident students, treated Kinloch District differently from other similarly situated

school districts." 1061

In short, racial considerations were found to have entered

105/

-

363 F. Supp. at 743.

1061

-

Ibid.

into the decision not to reorganize the Kinloch District, and "State and county

officials acted on these considerations to the detriment of the Kinloch students.'

The segregative effects of these actions had persisted:

the black district had

only a handful of white students at the time of trial, and its assessed tax valuation per pupil, buildings, equipment, and faculty salaries were markedly inferior to the other districts.

Subsequent to the trial, the district court entered an order enjoining the

defendants from operating the schools in St. Louis County in a discriminatory

fashion, and requiring the submission of reorganization plans which would eliminate segregation in those schools.

The plan submitted by the defendants and ap-

proved by the court provided for the consolidation of the Kinloch and Berkeley

districts with a third, considerably larger district, Ferguson-Florissant.

Con-

solidation of only Kinloch and Berkeley was rejected because it would not have

resulted in significant desegregation and was not financially viable due to low

assessed property valuations in the two districts.

The approved remedy would

necessitate some increase in the number of students bused but, the court found,

involved no health or safety hazards.

Yeasured against the standards laid down by Milliken, the district court

concluded that the proposed inter-district remedy was appropriate in this particular situation.

Milliken found an inter-district remedy suitable only in the pres-

ence of an inter-district violation or a violation having inter-district effects.

The situation in St. Louis County was a vestige of a formerly State-mandated dual

school system and was also "a continuing effect of racially discriminatory State

actions on the part of the defendants." 107/

Although not a party to the crea-

tion of the black Kinloch District, the court justified the inclusion of FergusonFlorissant on the basis that the rejection by Ferguson voters of a proposed plan

107/

388 F. Supp. at 1059.

for consolidation with Kinloch had been racially motivated. 1081

Focussing on

one major distinguishing factor, the court noted that as compared to the 53 school

districts included in the proposed desegregation plan for Detroit, the three district remedy would not cause any significant disruption of public education or

any deviation from Missouri law, thereby meeting the equitable objections voiced

in Milliken.

The consolidation plan was affirmed by the Eighth Circuit, but another portion of the district court decree dealing with tax levies to support the consolidated district was modified on appeal.

Testimony before the district court in-

dicated that a maximum tax rate of $6.03 per $100 valuation would be required to

operate the new district, but that it would be impossible to obtain voter approval

for that level of funding. The State Board of Education therefore recommended

that the maximum rate not exceed $5.38 per $100 valuation, the then current rate

in Ferguson-Florissant District, with the remainder financed through the State

legislature.

In modifying the district court order which had opted for the higher

rate, the Eighth Circuit held that while it was within the judiciary's power to

require tax levies to implement a school desegregation plan, nevertheless "deference should be given to the plan submitted in good faith by the State and county

officials and which is largely accepted by the court." 1091 The rate in the

consolidated school district was therefore reduced to $5.38 per $100 valuation.

108/

388 F. Supp. at 1060; 363 F. Supp. at 748-49.

1091 515 F . 2d at 1373.

-

SUMMARY

Lower court decisions since Milliken demonstrate that, despite the apparent

limitations on inter-district relief imposed by the Supreme Court in the Detroit

case, judicial remedies to desegregate schools in an entire metropolitan area may

be appropriate in certain circumstances.

Basically, three distinct types of prac-

tices that may form a pattern of constitutional violations justifying interdistrict relief have been identified by these decisions:

school board policies

that result in actual district line crossings by students; legislative or administrative reorganizations of school districts, consolidations, or detachments that

intensify segregation within affected districts; and actions by local housing

authorities that affect the residential location of families with school children

within a metropolitan area.

The Wilmington and Louisville cases illustrate this first type of "interdistrict" violation where school officials in two or more districts act in concert to segregate students across district lines.

For example, the Evans court

stressed historical arrangements of city/county cooperation for the education of

students in the Wilmington metropolitan area; in particular, the fact that for

many years county blacks had been transferred to an all-black city high school.

In addition, before Brown, suburban students of both races had, for a variety

of other reasons, been transferred across district lines to Wilmington, and the

State had contributed to "white flight" from the city public schools by subsidizing inter-district transportation of students to private and parochial schools

in the county.

Similarly, in Newburg, the Sixth Circuit noted that boundary

lines between the Louisville and Jefferson County school districts had frequently

been disregarded in the past to aid segregation, while Plilliken involved only

one such instance.

Although Plilliken, by rejecting the theory that State officials may be held

vicariously liable for all acts of a local school board, severely weakened the

viability of certain types of "State action" arguments as justification for

inter-district relief, some forms of action at the State vis-a-vis local level may

still support a claim for such relief.

For example, when State legislative or

administrative action related to the organization, consolidation, or detachment

of school districts results in increased segregation, this may provide a basis for

finding an inter-district violation under Milliken.

The court in Evans relied

primarily on the State legislature's passage of the Educational Advancement Act,

excluding Wilmington from a general reorganization of Delaware school districts,

as the basis for an inter-district remedy.

In United States v. Missouri, the

separation of one district into black and white districts in 1937, and the refusal

by State and local officials to include the black district in subsequent consolidation plans for the county, was held to justify their reconsolidation almcst

forty years later.

In Milliken, the Supreme Court specifically referred to "line

1101

drawing" of this sort as one acceptable ground for an inter-district remedy. -

A second type of line drawing problem is presented when school district

lines do not conform to governmental boundaries for other purposes, and the

effect of this discrepancy is increased segregation within city and suburban

school systems.

In the Indianapolis case, the State legislature approved a plan

organizing all governmental services on a metropolitan basis except for schools,

which remained divided between city and suburbs.

1101 418 U.S. at 745.

-

In Louisville, the boundaries

of the Louisville School District were drawn well inside the city limits, allowing

10,000 students, mostly white, to live in the city but attend county schools. 1111

The mismatches were found to be prima facie evidence of a segregative purpose

whose effects justified inter-district relief.

It follows from the Louisville and

Indianapolis cases that unless the defendant State or local officials can demonstrate that the determination of governmental boundaries was based solely on

legitimate non-racial reasons, an inter-district remedy may be appropriate. 1121

Another type of line drawing that may provide a basis for finding an interdistrict violation involves the consolidation of school districts.

In Morrilton

School District No. 32 v. United States 1131 a series of three major school district consolidations in Conway County, Arkansas, mandated by the State Legislature

prior to 1950, had the effect of combining a number of small segregated districts

into a few larger, but still segregated, districts.

In an en banc decision, the

Eighth Circuit unanimously held that because the consolidation program failed to

remedy, and effectively preserved, the de jure segregation enforced by a statute in

Arkansas until 1954, it constituted an inter-district violation justifying further

consolidation of the districts to achieve desegregation.

The court's reasoning

anticipated the Columbus and Dayton I1 decisions, where a history of past de jure

1111 Newburg Area Council, Inc. v. Board of Education, 510 F. 2d 1358, 1361

(6th CT

1974), cert. denied 421 U.S. 931 (1975).

1121 The difficulty with this approach may lie in the requirement of finding a discriminatory purpose. There may be legitimate reasons, such as economies

of scale, for providing some services but not others on a metropolitan basis. Indeed, the ~ i l l i k e ncourt itself stressed the importance of the factor of local control over education as militating against imposition of inter-district remedies.

However, when most services are provided regionally, the exclusion of school districts from an overall plan of government consolidation may become more suspect,

and it may be more difficult for defendants to defeat a prima facie case by showing

that they acted exclusively for non-racial reasons in not consolidating schools.

606 F. 2d 222 (8th Cir. 1979), cert. denied 48 U.S.L.W.

3535 (S. Ct.

segregation and the continuing failure to eliminate its effects warranted a broad

intra-district remedy.

In addition, there is language in Morrilton to suggest

that, even in the absence of statutorily enforced segregation prior to 1954, the

the consolidation program would have justified an inter-district remedy because

it had led to discontiguous districts serving widely scattered areas.

Since this

pattern lacked apparent educational justification, the court felt that the intent

of the consolidations could be viewed as "discriminatory." 1141

The Wilmington and Indianapolis cases also illustrate that State action

contributing to significant inter-district residential segregation, by control

of land use or construction of public housing, may also justify metropolitan relief of school segregation indirectly caused thereby.

In Evans, the district

court adopted the housing discrimination theory suggested by Justice Stewart in

Milliken, where he referred to purposeful State manipulation of housing or zoning

laws, to find an inter-district violation based on the discriminatory policies of

various officials involved in public and private housing.

Regional housing autho-

rities that built all public housing units within the city when they had authority

extending into the suburbs were also found to have committed inter-district violations in Indianapolis.

Although such practices may constitute an inter-district

violation, the casual relationship between housing policies and inter-district

school segregation may not be as apparent as in the case of district line crossings and reorganizations.

This is suggested by Justice Stewart's assertion in

Milliken that the concentration of black residents in Detroit was due to "unknown

and perhaps unknowable factors."

Another difficulty in using State or local

housing or zoning laws as a basis for finding an inter-district violation is the

necessity of showing a discriminatory purpose.

Certain zoning and housing laws

that have the effect of segregating blacks in urban areas may have been designed

to preserve open space, lessen the burden on municipal services, or accomplish

other legitimate purposes that may preserve them from constitutional challenge. 115/

Nonetheless, the post-Milliken cases demonstrate that a litigation strategy

based in part on housing violations may succeed in certain circumstances. 1161

It should be noted, however that the post-Milliken cases in which lower

courts have ordered inter-district relief all involved school districts that had

operated statutory dual school systems in the past, and where the effects of pre1954 de jure segregation had lingered without remedy.

Although not directly con-

fronted with the issue, the Supreme Court's decisions during its 1978-79 term in

Columbus Board of Education v. Penick 1171 and Dayton Board of Education v.

v. Brinkman (Dayton 11) 1181 leave open the possibility that such a "vestiges"

rationale could likewise be used to obtain inter-district relief in school districts without a prior history of statutorily enforced racial separation of

students.

In Milliken where only intra-district violations in a single school

district were proven the Court was unwilling to presume the existence of interdistrict violations. 1191

By contrast, it is arguable that once the plaintiffs

in such a case have established a single or repeated inter-district violations

1151 See, Arlington Heights v. Metropolitan Rousing Development Corp. 429

U.S. 252(1977).

1161 See, also Hills v. Gautreaux, 425 U.S. 284 (1976) n. 75 (supra).

1171 443 U.S. 449 (1979).

1181 443 U.S. 526 (1978).

1191 While the opinions of both the Chief Justice and Justice Stewart, concurring, emphasized that Milliken did not involve contiguous dual school systems,

the Court did not expressly consider whether a showing of contiguous intra-district

violations, but without evidence of inter-district effect, might be sufficient in

and of itself to justify the imposition of an inter-district remedy. To date, the

only decision to suggest that it would is the Sixth Circuit ruling in the Louisville

dicta

- since

case (Newburg, supra) but that aspect of the court's ruling was largely there were other grounds to support the findings of an inter-district violation.

See, 510 F. 2d at 1361.

with significant unremedied effects, the vestiges "presumption" of Columbus and

Dayton TI might be applied to shift the burden of proof to State and local defendants regarding other segregation between the districts' school.

For example,

if cooperative transfers of students for a segregative purpose, or significant

housing violations, are proven, it could be presumed that the identified officials

committed other violations having similar effects.

Thus, while northern litigants

may be less able than their southern counterparts to trace current segregation to

an historical statutory source, the theory of unremedied vestiges of past segregative action (i.e., the continuing failure of State officials to remedy the effects

of their past misdeeds), borrowed from the intra-district context, could lessen

the plaintiffs' burden of showing that other, more subtle forms of discrimination

led to segregated schools in more than one district.

Finally, by relying on State constitutional provisions, the courts in at

least two cases have avoided the barriers posed by Yilliken to inter-district relief.

An intermediate California State court, Tinsley v. Palo Alto Unified School

District, 1201 found that inter-district relief could be justified under Article I,

Section 7 , of the California constitution, which established a State guarantee of

of equal protection.

In Tinsley, the district court of appeals upheld on demurrer

the plaintiff's request for the integration of students from a black-majority

elementary school district in the San Francisco suburbs with those from a neighboring white-majority elementary school district.

The court began its analysis by not-

ing that the California Supreme Court, in Crawford v. Board of Education, 1211 had

held de facto intra-district segregation to be a violation of the State constitution's

1201

-

91 Cal. App. 2d 871, 154 Cal. Rptr. 591 (1979).

3.211 17 Cal. 3d 280, 551 P. 2d 28, 130 Cal. Rptr. 724 (1974) (Los Angeles

County Schools).

equal protection guarantee.

The court then held that Crawford applied to de facto

segregation across district lines, as long as the districts were adjoining.

Hav-

ing found a violation of State constitutional law, the court rejected the defendant's

argument that llilliken was binding precedent.

In Berry v. School District, 1 2 2 / a Federal district court in Michigan based

resort to an inter-district remedy on Article VIII, Section 2 , of the 1962 State

constitution, which orders "every school district [to] provide for the education of

its pupils without discrimination.

. ." Although the provision is addressed to

"school districts," the court concluded that it imposed an affirmative duty on "all

State and school authorities," the Governor, and the attorney general.

Dereliction

by State officials of this duty to remedy local de jure segregation, the court held,

constituted a violation of State-wide scope justifying inter-district relief.

The

court thus relied on the State constitution to achieve the same ends sought by the

plaintiffs in Milliken:

characterization of the violation as State-wide to allow

for inclusion of more than one school district within scope of the remedy.

In conclusion, while ?:illiken places restrictions on the courts' authority to

order inter-district or metropolitan remedies in school desegregation cases, such

relief may still be available in a wide range of cases.

Line crossings, boundary

changes and residential population shifts brought about by official discrimination

may all satisfy Milliken's requirement of an inter-district violation.

Both the

Wilmington and Louisville cases appear to depart from strict adherence to Milliken,

suggesting a relaxed application of the discriminatory intent test, and that where

there is some combination of de jure violations within the included districts,

breaches of district lines, and an absence of equitable restraints based on local

122/

-

467 F. Supp. 630 (W.D. Yich. 1978).

control and administrative difficulties, rigorous inquiry into inter-district

segregative effects may not be required.

Additional developments in the law

can be expected, particularly in regard to the applicability of Columbus and

Dayton IT. to multidistrict litigation seeking metropolitan-wide desegregation

of northern urban areas.

Finally, it is possible that claims based on State

constitutional grounds will more frequently be used to supplement the Federal

law in the future.

CONGRESSIONAL RESPONSE

The o p t i o n s f o r Congress i n responding t o t h e m e t r o p o l i t a n d e s e g r e g a t i o n

r o p o s a l s c o u l d r a n g e from l e g i s l a t i v e p r o h i b i t i o n s o n t h e u s e of F e d e r a l f u n d s

f o r s e g r e g a t e d a c t i v i t i e s t o " i n c e n t i v e " p r o g r a m s f o r t h e d e v e l o p m e n t and supp o r t of m e t r o p o l i t a n d e s e g r e g a t i o n e f f o r t s .

Advocates f o r S t a t e ' s r i g h t s and

t h e m a i n t e n a n c e of t h e s t a t u s quo n i g h t f a v o r l e g i s l a t i v e p r o h i b i t i o n s o r " n o

r e s p o n s e " a s a means of m i n i m i z i n g t h e p r e s s u r e t o move i n t h e d i r e c t i o n of

aetropolitan plans.

The b a s i c p o l i c y o p t i o n s f o r c o n g r e s s i o n a l a c t i v i t y i n c l u d e

t h e following:

Research and Dissemination.

S e v e r a l m e t r o p o l i t a n d e s e g r e g a t i o n e f f o r t s have

b e e n underway f o r a s u f f i c i e n t p e r i o d of t i m e t o j u s t i f y r e s e a r c h and e v a l u a t i o n

a c t i v i t i e s a s t o t h e i r e f f e c t i v e n e s s , i m p a c t on s c h o o l g o v e r n a n c e , s t u d e n t

a c h i e v e m e n t g a i n s o r l o s s e s , i m p a c t of e d u c a t i o n a l programs and s e r v i c e s , s o c i a l

b e n e f i t s , p u b l i c a c c e p t a n c e , and a d d i t i o n a l c o s t s a s s o c i a t e d w i t h t h e d e s e g r e g a tion efforts.

I n d e p e n d e n t r e s e a r c h e f f o r t s would p r o v i d e some of t h e t y p e s of

i n f o r m a t i o n t h a t t h e p u b l i c s e e k s when c o n s i d e r i n g t h e p o s s i b i l i t y of i n i t i a t i n g

v o l u n t a r y programs o r when c o n f r o n t e d w i t h t h e p o s s i b i l i t y o f m a n d a t o r y c o u r t

orders.

After c m p l e t i n g t h e research projects,

summaries of t h e f i n d i n g s and

r e l a t e d m a t e r i a l s c o u l d be p r e p a r e d and made a v a i l a b l e t o i n t e r e s t e d p a r t i e s .

Demonstration Programs.

The p r e v i o u s l y m e n t i o n e d r e s e a r c h and d i s s e m i n a t i o n

e f f o r t s c o u l d be conducted w i t h o u t p r o v i d i n g f u n d s f o r d e m o n s t r a t i o n programs;

h o w e v e r , i f t h e d e t e r m i n a t i o n s h o u l d be made t h a t i t i s i n t h e n a t i o n a l i n t e r e s t t o promote m e t r o p o l i t a n d e s e g r e g a t i o n e f f o r t s , f u n d s c o u l d be p r o v i d e d f o r

CRS- 6 8

a s e r i e s of d e m o n s t r a t i o n programs i n d i f f e r e n t l o c a t i o n s t h r o u g h o u t t h e N a t i o n .

Under t h e Emergency S c h o o l A s s i s t a n c e A c t , f u n d s have been p r o v i d e d f o r magnet

s c h o o l s and o t h e r d e m o n s t r a t i o n programs d e s i g n e d t o f o s t e r d e s e g r e g a t i o n ; howe v e r , f u n d s h a v e been l i m i t e d and n o t a v a i l a b l e t o s c h o o l d i s t r i c t s u n d e r Fede r a l court orders t o desegregate.

Examples of p o s s i b l e programs i n c l u d e magnet

s c h o o l s , a l t e r n a t i v e s c h o o l s , p a i r i n g and c l u s t e r i n g of e l e m e n t a r y and j u n i o r

h i g h s c h o o l s , and t e c h n i c a l a s s i s t a n c e w i t h p u p i l t r a n s p o r t a t i o n , t e a c h e r i n s e r v i c e t r a i n i n g , community r e l a t i o n s , and f i s c a l management.

Supplemental Aid.

A n o t h e r p o s s i b l e a p p r o a c h from t h e F e d e r a l l e v e l would

b e t o p r o v i d e d i r e c t s u p p o r t t o l o c a l s c h o o l d i s t r i c t s t h a t p a r t i c i p a t e i n metropolitan desegregation efforts.

Funding c o u l d be f o r t

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Metropolitan School Desegregation · 80-218 | Frix