The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_1290/89_1290.zc3

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SUPREME COURT OF THE UNITED STATES
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No. 89-1290
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ROBERT R. FREEMAN, et al., PETITIONER v. WILLIE
EUGENE PITTS et al.
on writ of certiorari to the united states court of
appeals for the eleventh circuit
[March 31, 1992]

  Justice Blackmun, with whom Justice Stevens and
Justice O'Connor join, concurring in the judgment.
  It is almost 38 years since this Court decided Brown v.
Board of Education, 347 U.S. 483 (1954).  In those 38 years
the students in DeKalb County, Ga., never have attended
a desegregated school system even for one day.  The
majority of ``black'' students never have attended a school
that was not disproportionately black.  Ignoring this glaring
dual character of the DeKalb County School System
(DCSS), part ``white'' and part ``black,'' the District Court
relinquished control over student assignments, finding that
the school district had achieved ``unitary status'' in that
aspect of the system.  No doubt frustrated by the continued
existence of duality, the Court of Appeals ordered the school
district to take extraordinary measures to correct all
manifestations of this racial imbalance.  Both decisions, in
my view, were in error, and I therefore concur in the
Court's decision to vacate the judgment and remand the
case.
  I also am in agreement with what I consider to be the
holdings of the Court.  I agree that in some circumstances
the District Court need not interfere with a particular
portion of the school system, even while, in my view, it
must retain jurisdiction over the entire system until all
vestiges of state-imposed segregation have been eliminated.
See ante, at 21.  I also agree that whether the District
Court must order DCSS to balance student assignments
depends on whether the current imbalance is traceable to
unlawful state policy and on whether such an order is
necessary to fashion an effective remedy.  See ante, at 21,
23-24, 27-28.  Finally, I agree that the good faith of the
school board is relevant to these inquiries.  See ante, at
28-29.
  I write separately for two purposes.  First, I wish to be
precise about my understanding of what it means for the
District Court in this case to retain jurisdiction while
relinquishing ``supervision and control'' over a subpart of a
school system under a desegregation decree.  Second, I
write to elaborate on factors the District Court should
consider in determining whether racial imbalance is
traceable to board actions and to indicate where, in my
view, it failed to apply these standards.
                            I
  Beginning with Brown, and continuing through the
Court's most recent school-desegregation decision in Board
of Education of Oklahoma City v. Dowell, 498 U.S. ____
(1991), this Court has recognized that when the local
government has been running de jure segregated schools, it
is the operation of a racially segregated school system that
must be remedied, not discriminatory policy in some
discrete subpart of that system.  Consequently, the Court in
the past has required and decides again today that even if
the school system ceases to discriminate with respect to one
of the Green-type factors, ``the [district] court should retain
jurisdiction until it is clear that state-imposed segregation
has been completely removed.''  Green v. New Kent County
School Board, 391 U.S. 430, 439 (1968) (emphasis added);
Raney v. Board of Education, 391 U.S. 443, 449 (1968); see
ante, at 21.
  That the District Court's jurisdiction should continue
until the school board demonstrates full compliance with
the Constitution follows from the reasonable skepticism
that underlies judicial supervision in the first instance.
This Court noted in Dowell: ``A district court need not
accept at face value the profession of a school board which
has intentionally discriminated that it will cease to do so in
the future.''  498 U.S., at ___ (slip op. 10).  It makes little
sense, it seems to me, for the court to disarm itself by
renouncing jurisdiction in one aspect of a school system,
while violations of the Equal Protection Clause persist in
other aspects of the same system.  Cf. Keyes v. School Dist.
No. 1, Denver, Colo., 413 U.S. 189, 207 (1973).  It would
seem especially misguided to place unqualified reliance on
the school board's promises in this case, because the two
areas of the school system the District Court found still in
violation of the Constitution-expenditures and teacher
assignments-are two of the Green factors over which DCSS
exercises the greatest control.
  The obligations of a district court and a school district
under its jurisdiction have been clearly articulated in the
Court's many desegregation cases.  Until the desegregation
decree is dissolved under the standards set forth in Dowell,
the school board continues to have ``the affirmative duty to
take whatever steps might be necessary to convert to a
unitary system in which racial discrimination would be
eliminated root and branch.''  Green, 391 U.S., at 437-438.
The duty remains enforceable by the district court without
any new proof of a constitutional violation, and the school
district has the burden of proving that its actions are
eradicating the effects of the former de jure regime.  See
Dayton Board of Education v. Brinkman, 443 U.S. 526, 537
(1979); Keyes, 413 U.S., at 208-211; Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 26 (1971);
Green, 391 U.S., at 439.
  Contrary to the Court of Appeals' conclusion, however,
retaining jurisdiction does not obligate the district court in
all circumstances to maintain active supervision and
control, continually ordering reassignment of students.  The
``duty'' of the district court is to guarantee that the school
district ``eliminate[s] the discriminatory effects of the past
as well as to bar like discrimination in the future.''  Green,
391 U.S., at 438, n. 4.  This obligation requires the court to
review school-board actions to ensure that each one ``will
further rather than delay conversion to a unitary, nonracial
nondiscriminatory school system.''  Monroe v. Board of
Comm'rs, 391 U.S. 450, 459 (1968); see also Dayton Board
of Education, 443 U.S., at 538; United States v. Scotland
Neck Board of Education, 407 U.S. 484, 489 (1972).  But
this obligation does not always require the district court to
order new, affirmative action simply because of racial
imbalance in student assignment.
  Whether a district court must maintain active supervision
over student assignment, and order new remedial actions
depends on two factors.  As the Court discusses, the district
court must order changes in student assignment if it ``is
necessary or practicable to achieve compliance in other
facets of the school system.''  Ante, at 27; see also ante, at
1 (Souter, J., concurring).  The district court also must
order affirmative action in school attendance if the school
district's conduct was a ``contributing cause'' of the racially
identifiable schools.  Columbus Board of Education v.
Penick, 443 U.S. 449, 465, n. 13 (1979); see also Keyes, 413
U.S., at 211 and n. 17 (the school board must prove that its
conduct ``did not create or contribute to'' the racial identifi-
ability of schools or that racially identifiable schools are ``in
no way the result of'' school board action).  It is the applica-
tion of this latter causation requirement that I now exam-
ine in more detail.
                           II
                            A
  DCSS claims that it need not remedy the segregation in
DeKalb County schools because it was caused by demo-
graphic changes for which DCSS has no responsibility.  It
is not enough, however, for DCSS to establish that demo-
graphics exacerbated the problem; it must prove that its
own policies did not contribute.  Such contribution can
occur in at least two ways: DCSS may have contributed to
the demographic changes themselves, or it may have
contributed directly to the racial imbalance in the schools.
  To determine DCSS' possible role in encouraging the
residential segregation, the court must examine the
situation with special care.  ``[A] connection between past
segregative acts and present segregation may be present
even when not apparent and . . . close examination is
required before concluding that the connection does not
exist.''  Keyes, 413 U.S., at 211.  Close examination is
necessary because what might seem to be purely private
preferences in housing may in fact have been created, in
part, by actions of the school district.
    ``People gravitate toward school facilities, just as
    schools are located in response to the needs of people.
    The location of schools may thus influence the patterns
    of residential development of a metropolitan area and
    have important impact on composition of inner-city
    neighborhoods.''  Swann, 402 U.S., at 20-21.

This interactive effect between schools and housing choices
may occur because many families are concerned about the
racial composition of a prospective school and will make
residential decisions accordingly.  Thus, schools that are
demonstrably black or white provide a signal to these
families, perpetuating and intensifying the residential
movement.  See Keyes, 413 U.S., at 202; Columbus Board of
Education, 443 U.S., at 465, n. 13; ante, at 2 (Souter, J.,
concurring).
  School systems can identify a school as "black" or "white"
in a variety of ways; choosing to enroll a racially identifi-
able student population is only the most obvious.  The
Court has noted: ``[T]he use of mobile classrooms, the
drafting of student transfer policies, the transportation of
students, and the assignment of faculty and staff, on
racially identifiable bases, have the clear effect of earmark-
ing schools according to their racial composition.''  Keyes,
413 U.S., at 202.  Because of the various methods for
identifying schools by race, even if a school district manages
to desegregate student assignments at one point, its failure
to remedy the constitutional violation in its entirety may
result in resegregation, as neighborhoods respond to the
racially identifiable schools.  See ante, at 2-3 (Souter, J.,
concurring).  Regardless of the particular way in which the
school district has encouraged residential segregation, this
Court's decisions require that the school district remedy the
effect that such segregation has had on the school system.
  In addition to exploring the school district's influence on
residential segregation, the District Court here should
examine whether school board actions might have contrib-
uted to school segregation.  Actions taken by a school
district can aggravate or eliminate school segregation
independent of residential segregation.  School board
policies concerning placement of new schools and closure of
old schools and programs such as magnet classrooms and
majority-to-minority (M to M) transfer policies affect the
racial composition of the schools.  See Swann, 402 U.S., at
20-21, 26-27.  A school district's failure to adopt policies
that effectively desegregate its schools continues the
violation of the Fourteenth Amendment.  See Columbus
Board of Education, 443 U.S., at 458-459; Dayton Board of
Education, 443 U.S., at 538.  The Court many times has
noted that a school district is not responsible for all of
society's ills, but it bears full responsibility for schools that
have never been desegregated.  See e.g., Swann, supra.
                            B
  The District Court's opinion suggests that it did not
examine DCSS' actions in light of the foregoing principles.
The court did note that the migration farther into the
suburbs was accelerated by ``white flight'' from black schools
and the ``blockbusting'' of former white neighborhoods.  It
did not examine, however, whether DCSS might have
encouraged that flight by assigning faculty and principals
so as to identify some schools as intended respectively for
black students or white students.  See App. 226-231.  Nor
did the court consider how the placement of schools, the
attendance zone boundaries, or the use of mobile classrooms
might have affected residential movement.  The court, in
my view, failed to consider the many ways DCSS may have
contributed to the demographic shifts.
  Nor did the District Court correctly analyze whether
DCSS' past actions had contributed to the school segrega-
tion independent of residential segregation.  The court did
not require DCSS to bear the ``heavy burden'' of showing
that student assignment policies-policies that continued
the effects of the dual system-served important and
legitimate ends.  See Dayton Board of Education, 443 U.S.,
at 538; Swann, 402 U.S., at 26.  Indeed, the District Court
said flatly that it would ``not dwell on what might have
been,'' but would inquire only as to ``what else should be
done now.''  App. 221.  But this Court's decisions require the
District Court to ``dwell on what might have been.''  In
particular, they require the court to examine the past to
determine whether the current racial imbalance in the
schools is attributable in part to the former de jure segre-
gated regime or any later actions by school officials.
  As the Court describes, the District Court placed great
emphasis on its conclusion that DCSS, in response to the
court order, had desegregated student assignment in 1969.
DCSS' very first action taken in response to the court
decree, however, was to shape attendance zones to result in
two schools that were more than 50% black, despite a
district-wide black student population of less than 6%.  See
ante, at 8.  Within a year, another school became majority
black, followed by 4 others within the next 2 years.  App.
304, 314, 350, 351, 368.  Despite the existence of these
schools, the District Court found that DCSS effectively had
desegregated for a short period of time with respect to
student assignment.  See ante, at 9.  The District Court
justified this finding by linking the school segregation
exclusively to residential segregation existing prior to the
court order.  See ante, at 8.
  But residential segregation that existed prior to the
desegregation decree cannot provide an excuse.  It is not
enough that DCSS adopt race-neutral policies in response
to a court desegregation decree.  Instead, DCSS is obligated
to ``counteract the continuing effects of past school segrega-
tion.''  Swann, 402 U.S., at 28.  Accordingly, the school
district did not meet its affirmative duty simply by adopting
a neighborhood-school plan, when already existing residen-
tial segregation inevitably perpetuated the dual system.
See Davis v. School Comm'rs of Mobile County, 402 U.S. 33,
37 (1971); Swann, 402 U.S., at 25-28, 30.
  Virtually all the demographic changes that DCSS claims
caused the school segregation occurred after 1975.  See
ante, at 5-6; App. 215, 260.  Of particular relevance to the
causation inquiry, then, are DCSS' actions prior to 1975;
failures during that period to implement the 1969 decree
render the school district's contentions that its noncompli-
ance is due simply to demographic changes less plausible.
  A review of the record suggests that from 1969 until
1975, DCSS failed to desegregate its schools.  During that
period, the number of students attending racially identifi-
able schools actually increased, and increased more quickly
than the increase in black students.  By 1975, 73% of black
elementary students and 56% of black high school students
were attending majority black schools, although the
percentages of black students in the district population
were just 20% and 13%, respectively.  Id., at 269-380.
  Of the 13 new elementary schools DCSS opened between
1969 and 1975, six had a total of four black students in
1975.  Id., at 272, 299, 311, 316, 337, 353.  One of the two
high schools DCSS opened had no black students at all.
Id., at 367, 361.  The only other measure taken by DCSS
during the 1969-1975 period was to adopt the M to M
transfer program in 1972.  Due, however, to limitations
imposed by school district administrators-including a
failure to provide transportation, ``unnecessary red tape,''
and limits on available transfer schools-only one-tenth of
1% of the students were participating in the transfer
program as of the 1975-1976 school year.  Id., at 75, 80.
  In 1976, when the District Court reviewed DCSS' actions
in the M-to-M program, it concluded that DCSS' limitations
on the program ``perpetuate the vestiges of a dual system.''
Id., at 83.  Noting that the Department of Health, Educa-
tion and Welfare had found that DCSS had ignored its
responsibility affirmatively to eradicate segregation and
perpetuate desegregation, the District Court found that
attendance zone changes had perpetuated the dual system
in the county.  Id., at 89, 91.
  Thus, in 1976, before most of the demographic changes,
the District Court found that DCSS had not complied with
the 1969 order to eliminate the vestiges of its former de jure
school system.  Indeed, the 1976 order found that DCSS
had contributed to the growing racial imbalance of its
schools.  Given these determinations in 1976, the District
Court, at a minimum, should have required DCSS to prove
that, but for the demographic changes between 1976 and
1985, its actions would have been sufficient to ``convert
promptly to a system without a `white' school and a `Negro'
school, but just schools.''  Green, 391 U.S., at 442.  The
available evidence suggests that this would be a difficult
burden for DCSS to meet.
  DCSS has undertaken only limited remedial actions since
the 1976 court order.  The number of students participating
in the M-to-M program has expanded somewhat, comprising
about 6% of the current student population.  The district
also has adopted magnet programs, but they involve fewer
than 1% of the system's students.  Doubtless DCSS could
have started and expanded its magnet and M-to-M pro-
grams more promptly; it could have built and closed schools
with a view toward promoting integration of both schools
and neighborhoods; redrawn attendance zones; integrated
its faculty and administrators; and spent its funds equally.
But it did not.  DCSS must prove that the measures it
actually implemented satisfy its obligation to eliminate the
vestiges of de jure segregation originally discovered in 1969,
and still found to exist in 1976.
                           III
  The District Court apparently has concluded that DCSS
should be relieved of the responsibility to desegregate
because such responsibility would be burdensome.  To be
sure, changes in demographic patterns aggravated the
vestiges of segregation and made it more difficult for DCSS
to desegregate.  But an integrated school system is no less
desirable because it is difficult to achieve, and it is no less
a constitutional imperative because that imperative has
gone unmet for 38 years.
  Although respondents challenged the District Court's
causation conclusions in the Court of Appeals, that court
did not reach the issue.  Accordingly, in addition to the
issues the Court suggests be considered in further proceed-
ings, I would remand for the Court of Appeals to review,
under the foregoing principles, the District Court's finding
that DCSS has met its burden of proving the racially
identifiable schools are in no way the result of past segrega-
tive action.