Implementing School Desegregation

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Following its 1968 decision Green v. County School Board of New Kent County,1 the Court continued to encounter school districts’ refusals to comply with its Brown decisions.2 In another case involving the forty-third largest school system in the United States at the time, the Court thus undertook to define “in more precise terms” the duty of school authorities and federal courts to implement “Brown I and the mandate to eliminate dual systems and establish unitary systems at once.” 3 Observing that lower courts “have struggled in hundreds of cases with a multitude and variety of problems” to implement its directives,4 the Court in its 1971 decision Swann v. Charlotte-Mecklenburg Board of Education sought to address “with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause.” 5

In Charlotte-Mecklenburg, the Court stated that the “first remedial responsibility of school authorities is to eliminate invidious racial distinctions” —not only in student assignment, but also in other areas such as transportation, faculty and staff, extracurricular activities, building maintenance and equipment.6 The Court emphasized that apart from the racial composition of a school’s student body, if it is “possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities,” such features were indicative that a school district had failed to satisfy its constitutional obligations to dismantle its dual system and continued to deprive Black students of their rights to equal protection.7 Although “the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law,” 8 where a proposed desegregation plan “contemplates the continued existence” of such schools, school authorities must “satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.” 9

When school authorities fail in their obligations to dismantle state-sponsored racial segregation, the Court has held that a district court has “broad power to fashion a remedy that will assure a unitary school system,” 10 with “the nature of the violation determin[ing] the scope of the remedy.” 11 For “a system that has been deliberately constructed and maintained to enforce racial segregation,” the Court explained, a court may, and sometimes must, order race-based student assignments to desegregate.12 As the Court elaborated in a subsequent case, McDaniel v. Barresi,13 “steps will almost invariably require that students be assigned ‘differently because of their race’” in this remedial context, as “[a]ny other approach would freeze the status quo that is the very target of all desegregation processes.” 14

The Court in Charlotte-Mecklenburg specifically laid out several methods for undoing dual systems, such as set ratios for redistributing faculty and students to desegregated schools,15 the race-conscious redrawing of school districts and attendance zones,16 considering desegregation in new school construction,17 and transporting students through busing.18 Considering faculty reassignments, the Court rejected arguments “that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation” 19 and upheld a district court order setting a minimum ratio of Black to White faculty assigned to each school.20 The Court similarly upheld a court-ordered minimum ratio of Black to White students in various schools, describing the district court’s use of ratios in that case as “no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement.” 21 The Court also emphasized that the district court’s remedy came after the local authorities had undisputedly continued their dual school system at least fifteen years after the Court’s Brown decision,22 and “had totally defaulted” in presenting “an acceptable [desegregation] plan.” 23 If the district court, however, had required, “as a matter of substantive constitutional right, any particular degree of racial balance or mixing,” the Court observed that it would have reversed such an order, as the constitutional requirement to dismantle dual systems “does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” 24

The Court in Charlotte-Mecklenburg also held that courts and school authorities not only may, but sometimes must, alter attendance boundaries and group or pair noncontiguous school attendance zones to desegregate dual systems and undo past official action.25 Describing the “gerrymandering of school districts and attendance zones” as “one of the principal tools” to break up a dual system, the Court acknowledged that while the zones “are neither compact nor contiguous,” such “awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.” 26 Transporting students to and from school through busing is also a permissible tool of educational and desegregation policy, particularly in circumstances such as those in Swann where assigning children “to the school nearest their home . . . would not produce an effective dismantling of the dual system.” 27 Discussing specific features of the busing plan ordered by the district court in Swann, the Court upheld the lower court’s remedial decree, stating that “[d]esegregation plans cannot be limited to the walk-in school.” 28 More generally, the Court stated that when valid objections are raised to transporting students, such as when “the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process,” lower courts must “weigh the soundness of any transportation plan” in light of various factors including other features of the desegregation plan at issue.29

Finally, the Court stated, neither “school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.” 30

1: 391 U.S. 430 (1968).
2: See generally Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 14 (1971) (observing that “the 1969 Term of Court brought fresh evidence of the dilatory tactics of many school authorities” ). See, e.g., Alexander v. Holmes Cnty. Bd. of Educ., 396 U.S. 19, 20 (1969) (per curiam) ( “The question presented is one of paramount importance, involving as it does the denial of fundamental rights to many thousands of school children, who are presently attending Mississippi schools under segregated conditions contrary to the applicable decisions of this Court.” ).
3: Charlotte-Mecklenburg, 402 U.S. at 6.
4: Id.
5: Id. at 18.
6: Id.
7: Id. (stating that “a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown” where such racial identifiability remains).
8: Id. at 26.
9: Id.
10: Id. at 16.
11: Id.
12: See id. at 28. Contra the Court’s decision in Bazemore v. Friday, in which the Court held that the adoption of “a wholly neutral admissions policy” for voluntary membership in state-sponsored 4-H Clubs was sufficient even though single race clubs continued to exist under that policy. 478 U.S. 385 (1986) (per curiam). There is no constitutional requirement that states in all circumstances pursue affirmative remedies to overcome past discrimination, the Court concluded; the voluntary nature of the clubs, unrestricted by state definition of attendance zones or other decisions affecting membership, presented a “wholly different milieu” from public schools. Id. at 408 (White, J., concurring opinion endorsed by the Court’s per curiam opinion).
13: 402 U.S. 39 (1971).
14: Id. at 41. See also N.C. State Bd. of Educ. v. Swann, 402 U.S. 43, 46 (1971) ( “Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems.” ).
15: Charlotte-Mecklenburg, 402 U.S at 18–20, 22–25.
16: Id. at 27–29.
17: Id. at 20–21.
18: Id. at 29–31.
19: Id. at 19–20.
20: Id.
21: Id. at 25.
22: Id. at 24–25 ( “As the voluminous record in this case shows, the predicate for the District Court’s use of the 71%–29% ratio was twofold: first, its express finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969” ).
23: Id. at 24.
24: Id.
25: Id. at 27–28.
26: Id.
27: Id. at 30.
28: Id.
29: Id. at 30–31.
30: Id. at 32.