March 7: Busing Controversies
- Mark C. Radhert, “Obstacles and Wrong Turns on the Road From Brown: Milliken v. Bradley and the Quest for Racial Diversity in Education,” Temple Political and Civil Rights Law Review
- James T. Hannon, “The Influence of Catholic Schools on the Desegregation of Public School Systems: A Case Study of White Flight in Boston,” Population Research and Policy Review
The changing demographics of Boston Public Schools, after busing:
Syllabus
SUPREME COURT OF THE UNITED STATES
418 U.S. 717
Milliken v. Bradley
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 73-434 Argued: February 27, 1974 — Decided: July 25, 1974 [*]
Respondents brought this class action, alleging that the Detroit public school system is racially segregated as a result of the official policies and actions of petitioner state and city officials, and seeking implementation of a plan to eliminate the segregation and establish a unitary nonracial school system. The District Court, after concluding that various acts by the petitioner Detroit Board of Education had created and perpetuated school segregation in Detroit, and that the acts of the Board, as a subordinate entity of the State, were attributable to the State, ordered the Board to submit Detroit-only desegregation plans. The court also ordered the state officials to submit desegregation plans encompassing the three-county metropolitan area, despite the fact that the 85 outlying school districts in these three counties were not parties to the action and there was no claim that they had committed constitutional violations. Subsequently, outlying school districts were allowed to intervene, but were not permitted to assert any claim or defense on issues previously adjudicated or to reopen any issue previously decided, but were allowed merely to advise the court as to the propriety of a metropolitan plan and to submit any objections, modifications, or alternatives to any such plan. Thereafter, the District Court ruled that it was proper to consider metropolitan plans, that Detroit-only plans submitted by the Board and respondents were inadequate to accomplish desegregation, and that, therefore, it would seek a solution beyond the limits of the Detroit school District, and concluded that “[s]chool district lines are simply matters of political convenience, and may not be used to deny constitutional rights.” Without having evidence that the suburban school districts had committed acts of de jure segregation, the court appointed a panel to submit a plan for the [p718] Detroit schools that would encompass an entire designated desegregation area consisting of 53 of the 85 suburban school districts plus Detroit, and ordered the Detroit Board to acquire at least 295 school buses to provide transportation under an interim plan to be developed for the 1972-1973 school year. The Court of Appeals, affirming in part, held that the record supported the District Court’s finding as to the constitutional violations committed by the Detroit Board and the state officials; that, therefore, the District Court was authorized and required to take effective measures to desegregate the Detroit school system; and that a metropolitan area plan embracing the 53 outlying districts was the only feasible solution and was within the District Court’s equity powers. But the court remanded so that all suburban school districts that might be affected by a metropolitan remedy could be made parties and have an opportunity to be heard as to the scope and implementation of such a remedy, and vacated the order as to the bus acquisitions, subject to its reimposition at an appropriate time.
Held: The relief ordered by the District Court and affirmed by the Court of Appeals was based upon erroneous standards, and was unsupported by record evidence that acts of the outlying districts had any impact on the discrimination found to exist in the Detroit schools. A federal court may not impose a multidistrict, area-wide remedy for single-district de jure school segregation violations where there is no finding that the other included school districts have failed to operate unitary school systems or have committed acts that effected segregation within the other districts, there is no claim or finding that the school district boundary lines were established with the purpose of fostering racial segregation, and there is no meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those districts. Pp. 737-753.
(a) The District Court erred in using as a standard the declared objective of development of a metropolitan area plan which, upon implementation, would leave “no school, grade or classroom . . . substantially disproportionate to the overall pupil racial composition” of the metropolitan area as a whole. The clear import of Swann v. Board of Education, 402 U.S. 1, is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance. Pp. 739-741. [p719]
(b) While boundary lines may be bridged in circumstances where there has been a constitutional violation calling for inter-district relief, school district lines may not be casually ignored or treated as a mere administrative convenience; substantial local control of public education in this country is a deeply rooted tradition. Pp. 741-742.
(c) The inter-district remedy could extensively disrupt and alter the structure of public education in Michigan, since that remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate governmental units into a vast new super school district, and, since — entirely apart from the logistical problems attending large-scale transportation of students — the consolidation would generate other problems in the administration, financing, and operation of this new school system. Pp. 742-743.
(d) From the scope of the inter-district plan itself, absent a complete restructuring of the Michigan school district laws, the District Court would become, first, a de facto “legislative authority” to resolve the complex operational problems involved, and thereafter a “school superintendent” for the entire area, a task which few, if any, judges are qualified to perform, and one which would deprive the people of local control of schools through elected school boards. Pp. 743-744.
(e) 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 be first shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district; i.e., 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. Pp. 744-745.
(f) With no showing of significant violation by the 53 outlying school districts and no evidence of any inter-district violation or effect, the District Court transcended the original theory of the case as framed by the pleadings, and mandated a metropolitan area remedy the approval of which would impose on the outlying districts, not shown to have committed any constitutional violation, a standard not previously hinted at in any holding of this Court. P. 745.
(g) Assuming, arguendo, that the State was derivatively responsible for Detroit’s segregated school conditions, it does not follow [p720] that an inter-district remedy is constitutionally justified or required, since there has been virtually no showing that either the State or any of the 85 outlying districts engaged in any activity that had a cross-district effect. Pp. 748-749.
(h) An isolated instance of a possible segregative effect as between two of the school districts involved would not justify the broad metropolitan-wide remedy contemplated, particularly since that remedy embraced 52 districts having no responsibility for the arrangement and potentially involved 503,000 pupils in addition to Detroit’s 276,000 pupils. Pp. 749-750.
484 F.2d 215, reversed and remanded.
—
BURGER, J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
418 U.S. 717
Milliken v. Bradley
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 73-434 Argued: February 27, 1974 — Decided: July 25, 1974 [*]
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in these consolidated cases to determine whether a federal court may impose a multi-district, area-wide remedy to a single-districtde jure segregation problem absent any finding that the other included school district have failed to operate unitary school systems within their districts, absent any claim or finding that the boundary lines of any affected school district were established with the purpose of fostering racial segregation in public schools, absent any finding that the included districts committed acts which effected segregation within the other districts, and absent a [p722]meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multi-district remedy or on the question of constitutional violations by those neighboring districts. [n1]
I
The action was commenced in August, 1970, by the respondents, the Detroit Branch of the National Association for the Advancement of Colored People [n2]and individual parents and students, on behalf of a class later defined by order of the United States District Court for the Eastern District of Michigan, dated February 16, 1971, to include “all school children in the City of Detroit, Michigan, and all Detroit resident parents who have children of school age.” The named defendants in the District Court included the Governor of Michigan, the Attorney General, the State Board of Education, the State Superintendent of Public Instruction, the Board of Education of the city of Detroit, its members, and the city’s former superintendent of schools. The State of Michigan as such is not a party to this litigation, and references to the State must be read as references to the public officials, state and local, through whom the State is alleged to have acted. In their complaint, respondents attacked the constitutionality of a statute of the State of Michigan known as Act 48 of the 1970 Legislature on the ground that it put the State of Michigan in the position of unconstitutionally interfering with the execution and operation of a voluntary plan of partial high school desegregation, known as the April 7, 1970, Plan, which had been adopted by the Detroit Board of Education to be effective beginning [p723] with the fall 1970 semester. The complaint also alleged that the Detroit Public School System was and is segregated on the basis of race as a result of the official policies and actions of the defendants and their predecessors in office, and called for the implementation of a plan that would eliminate “the racial identity of every school in the [Detroit] system and . . . maintain now and hereafter a unitary, nonracial school system.”
Initially the matter was tried on respondents’ motion for a preliminary injunction to restrain the enforcement of Act 48 so as to permit the April 7 Plan to be implemented. On that issue, the District Court ruled that respondents were not entitled to a preliminary injunction, since, at that stage, there was no proof that Detroit had a dual segregated school system. On appeal, the Court of Appeals found that the “implementation of the April 7 plan was [unconstitutionally] thwarted by State action in the form of the Act of the Legislature of Michigan,” 433 F.2d 897, 902 (CA6 1970), and that such action could not be interposed to delay, obstruct, or nullify steps lawfully taken for the purpose of protecting rights guaranteed by the Fourteenth Amendment. The case was remanded to the District Court for an expedited trial on the merits.
On remand, the respondents moved for immediate implementation of the April 7 Plan in order to remedy the deprivation of the claimed constitutional rights. In response, the School Board suggested two other plans, along with the April 7 Plan, and urged that top priority be assigned to the so-called “Magnet Plan,” which was “designed to attract children to a school because of its superior curriculum.” The District Court approved the Board’s Magnet Plan, and respondents again appealed to the Court of Appeals, moving for summary reversal. The Court of Appeals refused to pass on the merits of the Magnet Plan, and ruled that the District Court had [p724] not abused its discretion in refusing to adopt the April 7 Plan without an evidentiary hearing. The case was again remanded with instructions to proceed immediately to a trial on the merits of respondents’ substantive allegations concerning the Detroit school system. 438 F.2d 945 (CA6 1971).
The trial of the issue of segregation in the Detroit school system began on April 6, 1971, and continued through July 22, 1971, consuming some 41 trial days. On September 27, 1971, the District Court issued its findings and conclusions on the issue of segregation, finding that
Governmental actions and inaction at all levels, federal, State and local, have combined with those of private organizations, such a loaning institutions and real estate associations and brokerage firms to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area.
338 F.Supp. 582, 587 (ED Mich.1971). While still addressing a Detroit-only violation, the District Court reasoned:
While it would be unfair to charge the present defendants with what other governmental officers or agencies have done, it can be said that the actions or the failure to act by the responsible school authorities, both city and state, were linked to that of these other governmental units. When we speak of governmental action, we should not view the different agencies as a collection of unrelated units. Perhaps the most that can be said is that all of them, including the school authorities, are, in part, responsible for the segregated condition which exists. And we note that just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of the schools.
The District Court found that the Detroit Board of Education created and maintained optional attendance zones [n3] within Detroit neighborhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. These zones, the court found, had the “natural, probable, foreseeable and actual effect” of allowing white pupils to escape identifiably Negro schools. Ibid. Similarly, the District Court found that Detroit school attendance zones had been drawn along north-south boundary lines despite the Detroit Board’s awareness that drawing boundary lines in an east-west direction would result in significantly greater desegregation. Again, the District Court concluded, the natural and actual effect of these acts was the creation and perpetuation of school segregation within Detroit.
The District Court found that, in the operation of its school transportation program, which was designed to relieve overcrowding, the Detroit Board had admittedly bused Negro Detroit pupils to predominantly Negro schools which were beyond or away from closer white schools with available space. [n4] This practice was found to have continued in recent years despite the Detroit Board’s avowed policy, adopted in 1967, of utilizing transportation to increase desegregation:
With one exception (necessitated by the burning of a white school), defendant Board has never bused [p726] white children to predominantly black school. The Board has not bused white pupils to black schools despite the enormous amount of space available in inner-city schools. There were 22,961 vacant seats in schools 90% or more black.
Id. at 588.
With respect to the Detroit Board of Education’s practice in school construction, the District Court found that Detroit school construction generally tended to have a segregative effect, with the great majority of schools being built in either overwhelmingly all-Negro or all-white neighborhoods, so that the new schools opened as predominantly one-race schools. Thus, of the 14 schools which opened for use in 1970-1971, 11 opened over 90% Negro and one opened less than 10% Negro.
The District Court also found that the State of Michigan had committed several constitutional violations with respect to the exercise of its general responsibility for, and supervision of, public education. [n5] The State, for example, was found to have failed, until the 1971 Session of the Michigan Legislature, to provide authorization or [p727] funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned; during this same period, the State provided many neighboring, mostly white, suburban districts the full range of state supported transportation.
The District Court found that the State, through Act 48, acted to “impede, delay and minimize racial integration in Detroit schools.” The first sentence of § 12 of Act 48 was designed to delay the April 7, 1970, desegregation plan originally adopted by the Detroit Board. The remainder of § 12 sought to prescribe for each school in the eight districts criteria of “free choice” and “neighborhood schools,” which, the District Court found, “had as their purpose and effect the maintenance of segregation.” 338 F.Supp. at 589. [n6]
The District Court also held that the acts of the Detroit Board of Education, as a subordinate entity of the State, were attributable to the State of Michigan, thus creating a vicarious liability on the part of the State. Under Michigan law, Mich.Comp.Laws § 388.851 (1970), for example, school building construction plans had to be approved by the State Board of Education, and, prior to 1962, the State Board had specific statutory authority to supervise schoolsite selection. The proofs concerning the effect of Detroit’s school construction program were, [p728] therefore, found to be largely applicable to show state responsibility for the segregative results. [n7]
Turning to the question of an appropriate remedy for these several constitutional violations, the District Court deferred a pending motion [n8] by intervening parent defendants [p729] to join as additional parties defendant the 85 outlying school districts in the three-county Detroit metropolitan area on the ground that effective relief could not be achieved without their presence.[n9] The District Court concluded that this motion to join was “premature,” since it “has to do with relief,” and no reasonably specific desegregation plan was before the court. 338 F.Supp. at 595. Accordingly, the District Court proceeded to order the Detroit Board of Education to submit desegregation plans limited to the segregation problems found to be existing within the city of Detroit. At the same time, however, the state defendants were directed to submit desegregation plans encompassing the three-county metropolitan area[n10] despite the fact that the 85 outlying school [p730] districts of these three counties were not parties to the action and despite the fact that there had been no claim that these outlying districts had committed constitutional violations. [n11] An effort to appeal these orders to the Court of Appeals was dismissed on the ground that the orders were not appealable. 468 F.2d 902 (CA6), cert. denied, 409 U.S. 844 (1972). The sequence of the ensuing actions and orders of the District Court are significant factors, and will therefore be catalogued in some detail.
Following the District Court’s abrupt announcement that it planned to consider the implementation of a multi-district, metropolitan area remedy to the segregation problems identified within the city of Detroit, the District Court was again requested to grant the outlying school districts intervention as of right on the ground that the District Court’s new request for multi-district plans “may, as a practical matter, impair or impede [the intervenors’] ability to protect” the welfare of their students. The District Court took the motions to intervene under advisement pending submission of the requested desegregation plans by Detroit and the state officials. On March 7, 1972, the District Court notified all parties and the petitioner school districts seeking intervention that March 14, 1972, was the deadline for submission of recommendations for conditions of intervention and the [p731] date of the commencement of hearings on Detroit-only desegregation plans. On the second day of the scheduled hearings, March 15, 1972, the District Court granted the motions of the intervenor school districts [n12] subject, inter alia, to the following conditions:
1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court.
2. No intervenor shall reopen any question or issue which has previously been decided by the court.
* * * *
7. New intervenors are granted intervention for two principal purposes: (a) to advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) to review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objection, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court.
1 Joint Appendix 206 (hereinafter App.).
Upon granting the motion to intervene, on March 15, 1972, the District Court advised the petitioning intervenors that the court had previously set March 22, 1972, as the date for the filing of briefs on the legal propriety of a “metropolitan” plan of desegregation and, accordingly, that the intervening school districts would have one week to muster their legal arguments on the issue. [n13] [p732] Thereafter, and following the completion of hearings on the Detroit-only desegregation plans, the District Court issued the four rulings that were the principal issues in the Court of Appeals.
(a) On March 24, 1972, two days after the intervenors’ briefs were due, the District Court issued its ruling on the question of whether it could “consider relief in the form of a metropolitan plan, encompassing not only the City of Detroit, but the larger Detroit metropolitan area.” It rejected the state defendants’ arguments that no state action caused the segregation of the Detroit schools, and the intervening suburban districts’ contention that inter-district relief was inappropriate unless the suburban districts themselves had committed violations. The court concluded:
[I]t is proper for the court to consider metropolitan plans directed toward the desegregation of the Detroit public schools as an alternative to the present intra-city desegregation plans before it and, in the event that the court finds such intra-city plans inadequate to desegregate such schools, the court is of the opinion that it is required to consider a metropolitan remedy for desegregation.
Pet. App. 51a.
(b) On March 28, 1972, the District Court issued its findings and conclusions on the three Detroit-only plans submitted by the city Board and the respondents. It found that the best of the three plans “would make the Detroit school system more identifiably Black . . . , thereby increasing the flight of Whites from the city and the system.” Id. at 55a. From this the court concluded that the plan “would not accomplish desegregation . . . within the corporate geographical limits of the city.” Id. at 56a. Accordingly, the District Court held that it “must look beyond the limits of the Detroit school [p733] district for a solution to the problem,” and that “[s]chool district lines are simply matters of political convenience, and may not be used to deny constitutional rights.” Id. at 57a.
(c) During the period from March 28 to April 14, 1972, the District Court conducted hearings on a metropolitan plan. Counsel for the petitioning intervenors was allowed to participate in these hearings, but he was ordered to confine his argument to “the size and expanse of the metropolitan plan,” without addressing the intervenors’ opposition to such a remedy or the claim that a finding of a constitutional violation by the intervenor districts was an essential predicate to any remedy involving them. Thereafter, on June 14, 1972, the District Court issued its ruling on the “desegregation area” and related findings and conclusions. The court acknowledged at the outset that it had
taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties [in the Detroit area], nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de juresegregation.
Nevertheless, the court designated 53 of the 85 suburban school districts plus Detroit as the “desegregation area,” and appointed a panel to prepare and submit “an effective desegregation plan” for the Detroit schools that would encompass the entire desegregation area. [n14] The plan was to be based on 15 clusters, each containing part of the Detroit system and two or more suburban districts, [p734] and was to
achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom [would be] substantially disproportionate to the overall pupil racial composition.
345 F.Supp. 914, 918 (ED Mich.1972).
(d) On July 11, 1972, and in accordance with a recommendation by the court-appointed desegregation panel, the District Court ordered the Detroit Board of Education to purchase or lease “at least” 295 school buses for the purpose of providing transportation under an interim plan to be developed for the 1972-1973 school year. The costs of this acquisition were to be borne by the state defendants. Pet. App. 106a-107a.
On June 12, 1973, a divided Court of Appeals, sitting en banc, affirmed in part, vacated in part, and remanded for further proceedings. 484 F.2d 215 (CA6). [n15]The Court of Appeals held, first, that the record supported the District Court’s findings and conclusions on the constitutional violations committed by the Detroit Board, id. at 221-238, and by the state defendants, id. at 239-241. [n16]It stated that the acts of racial discrimination [p735] shown in the record are “causally related to the substantial amount of segregation found in the Detroit school system,” id. at 241, and that “the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System.” Id. at 242.
The Court of Appeals also agreed with the District Court that
any less comprehensive a solution than a metropolitan area plan would result in an all-black school system immediately surrounded by practically all-white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.
Id. at 245. The court went on to state that it could
not see how such segregation can be any less harmful to the minority students than if the same result were accomplished within one school district.
Ibid.
Accordingly, the Court of Appeals concluded that
the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan.
Id. at 249. It reasoned that such a plan would be appropriate because of the State’s violations, and could be implemented because of the State’s authority to control local school districts. Without further elaboration, and without any discussion of the claims that no constitutional violation by the outlying districts had been [p736] shown and that no evidence on that point had been allowed, the Court of Appeals held:
[T]he State has committed de jure acts of segregation and . . . the State controls the instrumentalities whose action is necessary to remedy the harmful effects of the State acts.
Ibid. An inter-district remedy was thus held to be “within the equity powers of the District Court.” Id. at 250. [n17]
The Court of Appeals expressed no views on the propriety of the District Court’s composition of the metropolitan “desegregation area.” It held that all suburban school districts that might be affected by any metropolitan-wide remedy should, under Fed.Rule Civ.Proc.19, be made parties to the case on remand and be given an opportunity to be heard with respect to the scope and implementation of such a remedy. 484 F.2d at 251-252. Under the terms of the remand, however, the District Court was not “required” to receive further evidence on the issue of segregation in the Detroit schools or on the propriety of a Detroit-only remedy, or on the question of whether the affected districts had committed any violation of the constitutional rights of Detroit pupils or others. Id. at 252. Finally, the Court of Appeals vacated the District Court’s order directing the acquisition of school buses, subject to the right of the District Court to consider reimposing the order “at the appropriate time.” Ibid.[p737]
II
Ever since Brown v. Board of Education, 347 U.S. 483 (1954), judicial consideration of school desegregation cases has begun with the standard:
[I]n the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.
Id. at 495. This has been reaffirmed time and again as the meaning of the Constitution and the controlling rule of law.
The target of the Brown holding was clear and forthright: the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils. This duality and racial segregation were held to violate the Constitution in the cases subsequent to 1954, including particularly Green v. County School Board of New Kent County,391 U.S. 430 (1968); Raney v. Board of Education, 391 U.S. 443 (1968); Monroe v. Bard of Comm’rs, 391 U.S. 450 (1968); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Wright v. Council of the City of Emporia, 407 U.S. 451 (1972); United States v. Scotland Neck Board of Education, 407 U.S. 484(1972).
The Swann case, of course, dealt
with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once.
402 U.S. at 6.
In Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II), the Court’s first encounter with the problem of remedies in school desegregation cases, the Court noted:
In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, [p738] equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling Public and private needs.
Id. at 300 (footnotes omitted). In further refining the remedial process, Swannheld, the task is to correct, by a balancing of the individual and collective interests, “the condition that offends the Constitution.” A federal remedial power may be exercised “only on the basis of a constitutional violation” and, “[a]s with any equity case, the nature of the violation determines the scope of the remedy.” 402 U.S. at 16.
Proceeding from these basic principles, we first note that, in the District Court, the complainants sought a remedy aimed at the condition alleged to offend the Constitution — the segregation within the Detroit City School District. [n18] The court acted on this theory of the case and in its initial ruling on the “Desegregation Area” stated:
The task before this court, therefore, is now, and . . . has always been, how to desegregate the Detroit public schools.
345 F.Supp. at 921. Thereafter, however, the District Court abruptly rejected the proposed Detroit-only plans on the ground that,
while [they] would provide a racial mix more in keeping with the Black-White proportions of the student population [they] would accentuate the racial identifiability of the [p739] [Detroit] district as a Black school system, and would not accomplish desegregation.
Pet.App. 56a. ” [T]he racial composition of the student body is such,” said the court, “that the plan’s implementation would clearly make the entire Detroit public school system racially identifiable” (id. at 54a), “leav[ing] many of its schools 75 to 90 percent Black.” Id. at 55a. Consequently, the court reasoned, it was imperative to “look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . . ,” since “[s]chool district lines are simply matters of political convenience, and may not be used to deny constitutional rights.” Id. at 57a. Accordingly, the District Court proceeded to redefine the relevant area to include areas of predominantly white pupil population in order to ensure that, “upon implementation, no school, grade or classroom [would be] substantially disproportionate to the overall pupil racial composition” of the entire metropolitan area.
While specifically acknowledging that the District Court’s findings of a condition of segregation were limited to Detroit, the Court of Appeals approved the use of a metropolitan remedy largely on the grounds that it is
impossible to declare “clearly erroneous” the District Judge’s conclusion that any Detroit only segregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black.
484 F.2d at 249.
Viewing the record as a whole, it seems clear that the District Court and the Court of Appeals shifted the primary [p740] focus from a Detroit remedy to the metropolitan area only because of their conclusion that total desegregation of Detroit would not produce the racial balance which they perceived as desirable. Both courts proceeded on an assumption that the Detroit schools could not be truly desegregated — in their view of what constituted desegregation — unless the racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. The metropolitan area was then defined as Detroit plus 53 of the outlying school districts. That this was the approach the District Court expressly and frankly employed is shown by the order which expressed the court’s view of the constitutional standard:
Within the limitations of reasonable travel time and distance factors, pupil reassignments shall be effected within the clusters described in Exhibit P.M. 12 so as to achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom [will be] substantially disproportionate to the overall pupil racial composition.
345 F.Supp. at 918 (emphasis added).
In Swann, which arose in the context of a single independent school district, the Court held: .
If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse.
402 U.S. at 24. The clear import of this language from Swann is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance in [p741] each “school, grade or classroom.”[n19] See Spencer v. Kugler, 404 U.S. 1027 (1972).
Here, the District Court’s approach to what constituted “actual desegregation” raises the fundamental question, not presented in Swann, as to the circumstances in which a federal court may order desegregation relief that embraces more than a single school district. The court’s analytical starting point was its conclusion that school district lines are no more than arbitrary lines on a map drawn “for political convenience.” Boundary lines may be bridged where there has been a constitutional violation calling for inter-district relief, but the notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to [p742] quality of the educational process. See Wright v. Council of the City of Emporia, 407 U.S. at 469. Thus, in San Antonio School District v. Rodriguez, 411 U.S. 1, 50 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decisionmaking, permits the structuring of school programs to fit local needs, and encourages “experimentation, innovation, and a healthy competition for educational excellence.”
The Michigan educational structure involved in this case, in common with most States, provides for a large measure of local control, [n20] and a review of the scope and character of these local powers indicates the extent to which the inter-district remedy approved by the two courts could disrupt and alter the structure of public education [p743] in Michigan. The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district.See n. 10, supra. Entirely apart from the logistical and other serious problems attending large-scale transportation of students, the consolidation would give rise to an array of other problems in financing and operating this new school system. Some of the more obvious questions would be: what would be the status and authority of the present popularly elected school boards? would the children of Detroit be within the jurisdiction and operating control of a school board elected by the parents and residents of other districts? what board or boards would levy taxes for school operations in these 54 districts constituting the consolidated metropolitan area? what provisions could be made for assuring substantial equality in tax levies among the 54 districts, if this were deemed requisite? what provisions would be made for financing? would the validity of long-term bonds be jeopardized unless approved by all of the component districts as well as the State? what body would determine that portion of the curricula now left to the discretion of local school boards? who would establish attendance zones, purchase school equipment, locate and construct new schools, and indeed attend to all the myriad day-to-day decisions that are necessary to school operations affecting potentially more than three-quarters of a million pupils? See n. 10, supra.
It may be suggested that all of these vital operational problems are yet to be resolved by the District Court, and that this is the purpose of the Court of Appeals’ proposed remand. But it is obvious from the scope of the inter-district remedy itself that, absent a complete restructuring of the laws of Michigan relating to school districts, the District Court will become first, a de facto [p744]”legislative authority” to resolve these complex questions, and then the “school superintendent” for the entire area. This is a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives.
Of course, no state law is above the Constitution. School district lines and the present laws with respect to local control are not sacrosanct, and, if they conflict with the Fourteenth Amendment, federal courts have a duty to prescribe appropriate remedies. See, e.g., Wright v. Council of the City of Emporia, 407 U.S. 451 (1972); United States v. Scotland Neck Board of Education, 407 U.S. 484 (1972) (state or local officials prevented from carving out a new school district from an existing district that was in process of dismantling a dual school system); cf. Haney v. County Board of Education of Sevier County,429 F.2d 364 (CA8 1970) (State contributed to separation of races by drawing of school district lines); United States v. Texas, 321 F.Supp. 1043 (ED Tex.1970),aff’d, 447 F.2d 441 (CA5 1971), cert. denied sub nom. Edgar v. United States,404 U.S. 1016 (1972) (one or more school districts created and maintained for one race). But our prior holdings have been confined to violations and remedies within a single school district. We therefore turn to address, for the first time, the validity of a remedy mandating cross-district or inter-district consolidation to remedy a condition of segregation found to exist in only one district.
The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Swann, 402 U.S. at 16. 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 [p745] 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 inter-district 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 district 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 directly caused by the constitutional violation. Conversely, without an inter-district violation and inter-district effect, there is no constitutional wrong calling for an inter-district remedy.
The record before us, voluminous as it is, contains evidence of de juresegregated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based, and on which the District Court took evidence. See supra at 725-726. With no showing of significant violation by the 53 outlying school districts and no evidence of any inter-district violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.
In dissent, MR. JUSTICE WHITE and MR. JUSTICE MARSHALL undertake to demonstrate that agencies having state-wide authority participated in maintaining the dual school system found to exist in Detroit. They are apparently of the view that, once such participation is [p746] shown, the District Court should have a relatively free hand to reconstruct school districts outside of Detroit in fashioning relief. Our assumption, arguendo, see infra at 748, that state agencies did participate in the maintenance of the Detroit system, should make it clear that it is not on this point that we part company.[n21] The difference between us arises, instead, from established doctrine laid down by our cases. Brown, supra; Green, supra; Swann, supra; Scotland Neck, supra; and Emporia, supra, each addressed the issue of constitutional wrong in terms of an established geographic and administrative school system populated by both Negro and white children. In such a context, terms such as “unitary” and “dual” systems, and “racially identifiable schools,” have meaning, and the necessary federal authority to remedy the constitutional wrong is firmly established. But the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct. Disparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere, and, on this record, the remedy must be limited to that system. Swann, supra,at 16.
The constitutional right of the Negro 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 [p747]residing in the Detroit District to attend schools in Oakland and Macomb Counties, 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 be supported on the grounds that it represents merely the devising of a suitably flexible remedy for the violation of rights already established by our prior decisions. It can be supported only by drastic expansion of the constitutional right itself, an expansion without any support in either constitutional principle or precedent. [n22] [p748]
III
We recognize that the six-volume record presently under consideration contains language and some specific incidental findings thought by the District Court to afford a basis for inter-district relief. However, these comparatively isolated findings and brief comments concern only one possible inter-district violation, and are found in the context of a proceeding that, as the District Court conceded, included no proof of segregation practiced by any of the 85 suburban school districts surrounding Detroit. The Court of Appeals, for example, relied on five factors which, it held, amounted to unconstitutional state action with respect to the violations found in the Detroit system:
(1) It held the State derivatively responsible for the Detroit Board’s violations on the theory that actions of Detroit as a political subdivision of the State were attributable to the State. Accepting, arguendo, the correctness of this finding of state responsibility for the segregated conditions within the city of Detroit, it does not follow that an inter-district remedy is constitutionally justified or required. With a single exception, discussed later, there has been no showing that either the State or any of the 85 outlying districts engaged in activity that had a cross-district effect. The boundaries of the Detroit School District, which are coterminous with the boundaries of the city of Detroit, were established over a century ago by neutral legislation when the city was incorporated; there is no evidence in the record, nor is there any suggestion by the respondents, that either the original boundaries of the Detroit School District, or any other school district in Michigan, were established for the purpose of creating, maintaining, or perpetuating segregation of races. There is no claim and there is no evidence hinting that petitioner outlying school districts and their [p749]predecessors, or the 30-odd other school districts in the tri-county area — but outside the District Court’s “desegregation area” — have ever maintained or operated anything but unitary school systems. Unitary school systems have been required for more than a century by the Michigan Constitution as implemented by state law. [n23] Where the schools of only one district have been affected, there is no constitutional power in the courts to decree relief balancing the racial composition of that district’s schools with those of the surrounding districts.
(2) There was evidence introduced at trial that, during the late 1950’s, Carver School District, a predominantly Negro suburban district, contracted to have Negro high school students sent to a predominantly Negro school in Detroit. At the time, Carver was an independent school district that had no high school because, according to the trial evidence, “Carver District . . . did not have a place for adequate high school facilities.” 484 F.2d at 231. Accordingly, arrangements were made with Northern High School in the abutting Detroit School District so that the Carver high school students could obtain a secondary school education. In 1960, the Oak Park School District, a predominantly white suburban district, annexed the predominantly Negro Carver School District, through the initiative of local officials. [p750] Ibid. There is, of course, no claim that the 1960 annexation had a segregative purpose or result or that Oak Park now maintains a dual system.
According to the Court of Appeals, the arrangement during the late 1950’s which allowed Carver students to be educated within the Detroit District was dependent upon the “tacit or express” approval of the State Board of Education, and was the result of the refusal of the white suburban districts to accept the Carver students. Although there is nothing in the record supporting the Court of Appeals’ supposition that suburban white schools refused to accept the Carver students, it appears that this situation, whether with or without the State’s consent, may have had a segregative effect on the school populations of the two districts involved. However, since “the nature of the violation determines the scope of the remedy,” Swann. 402 U.S. at 16, this isolated instance affecting two of the school districts would not justify the broad metropolitan-wide remedy contemplated by the District Court and approved by the Court of Appeals, particularly since it embraced potentially 52 districts having no responsibility for the arrangement and involved 503,000 pupils in addition to Detroit’s 276,000 students.
(3) The Court of Appeals cited the enactment of state legislation (Act 48) which had the effect of rescinding Detroit’s voluntary desegregation plan (the April 7 Plan). That plan, however, affected only 12 of 21 Detroit high schools, and had no causal connection with the distribution of pupils by race between Detroit and the other school districts within the tri-county area.
(4) The court relied on the State’s authority to supervise schoolsite selection and to approve building construction as a basis for holding the State responsible for the segregative results of the school construction program in Detroit. Specifically, the Court of Appeals asserted [p751] that, during the period between 1949 and 1962, the State Board of Education exercised general authority as overseer of site acquisitions by local boards for new school construction, and suggested that this state-approved school construction “fostered segregation throughout the Detroit Metropolitan area.” 484 F.2d at 241. This brief comment, however, is not supported by the evidence taken at trial, since that evidence was specifically limited to proof that schoolsite acquisition and school construction within the city of Detroit produced de juresegregation within the city itself. Id. at 235-238. Thus, there was no evidence suggesting that the State’s activities with respect to either school construction or site acquisition within Detroit affected the racial composition of the school population outside Detroit or, conversely, that the State’s school construction and site acquisition activities within the outlying districts affected the racial composition of the schools within Detroit.
(5) The Court of Appeals also relied upon the District Court’s finding:
This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities.
Id. at 239. However, neither the Court of Appeals nor the District Court offered any indication in the record or in their opinions as to how, if at all, the availability of state-financed aid for some Michigan students outside Detroit, but not for those within Detroit, might have affected the racial character of any of the State’s school districts. Furthermore, as the respondents recognize, the application of our recent ruling in San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), to this state education financing system is questionable, and this issue was not [p752] addressed by either the Court of Appeals or the District Court. This, again, underscores the crucial fact that the theory upon which the case proceeded related solely to the establishment of Detroit city violations as a basis for desegregating Detroit schools, and that, at the time of trial, neither the parties nor the trial judge was concerned with a foundation for inter-district relief. [n24]
IV
Petitioners have urged that they were denied due process by the manner in which the District Court limited their participation after intervention was allowed, thus precluding adequate opportunity to present evidence that they had committed no acts having a segregative effect in Detroit. In light of our holding that, absent an inter-district violation, there is no basis for an inter-district remedy, we need not reach these claims. It is clear, however, that the District Court, with the approval of the Court of Appeals, has provided an inter-district remedy in the face of a record which shows no constitutional violations that would call for equitable relief except within the city of Detroit. In these circumstances, there was no occasion for the parties to address, or for the District Court to consider, whether there were racially discriminatory acts for which any of the 53 outlying districts were responsible and which had direct and significant segregative effect on schools of more than one district.
We conclude that the relief ordered by the District Court and affirmed by the Court of Appeals was based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts effected the discrimination found to exist in the schools of Detroit. [p753] Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion leading to prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970.
Reversed and remanded.
—
MARSHALL, J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
418 U.S. 717
Milliken v. Bradley
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 73-434 Argued: February 27, 1974 — Decided: July 25, 1974 [*]
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITE join, dissenting.
In Brown v. Board of Education, 347 U.S. 483 (1954), this Court held that segregation of children in public schools on the basis of race deprives minority group children of equal educational opportunities, and therefore denies them the equal protection of the laws under the [p782] Fourteenth Amendment. This Court recognized then that remedying decades of segregation in public education would not be an easy task. Subsequent events, unfortunately, have seen that prediction bear bitter fruit. But however imbedded old ways, however ingrained old prejudices, this Court has not been diverted from its appointed task of making “a living truth” of our constitutional ideal of equal justice under law. Cooper v. Aaron, 358 U.S. 1, 20 (1958).
After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutional violation, the Court’s answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past.
I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws, and must respectfully dissent. Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. I agree with both the District Court and the Court of Appeals that, under the facts of this case, this duty cannot be fulfilled unless the State [p783] of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis either in law or in the practicalities of the situation justifying the State’s interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy. Under established and frequently used Michigan procedures, school district lines are both flexible and permeable for a wide variety of purposes, and there is no reason why they must now stand in the way of meaningful desegregation relief.
The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill-served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.
I
The great irony of the Court’s opinion and, in my view, its most serious analytical flaw, may be gleaned from its concluding sentence, in which the Court remands for
prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970.
Ante at 753. The majority, however, seems to have forgotten the District Court’s explicit finding that a Detroit-only decree, the only remedy permitted under today’s decision, “would not accomplish desegregation.” [p784]
Nowhere in the Court’s opinion does the majority confront, let alone respond to, the District Court’s conclusion that a remedy limited to the city of Detroit would not effectively desegregate the Detroit city schools. I, for one, find the District Court’s conclusion well supported by the record, and its analysis compelled by our prior cases. Before turning to these questions, however, it is best to begin by laying to rest some mischaracterizations in the Court’s opinion with respect to the basis for the District Court’s decision to impose a metropolitan remedy.
The Court maintains that, while the initial focus of this lawsuit was the condition of segregation within the Detroit city schools, the District Court abruptly shifted focus in mid-course and altered its theory of the case. This new theory, in the majority’s words, was “equating racial imbalance with a constitutional violation calling for a remedy.” Ante at 741 n.19. As the following review of the District Court’s handling of the case demonstrates, however, the majority’s characterization is totally inaccurate. Nowhere did the District Court indicate that racial imbalance between school districts in the Detroit metropolitan area or within the Detroit School District constituted a constitutional violation calling for inter-district relief. The focus of this case was from the beginning, and has remained, the segregated system of education in the Detroit city schools and the steps necessary to cure that condition which offends the Fourteenth Amendment.
The District Court’s consideration of this case began with its finding, which the majority accepts, that the State of Michigan, through its instrumentality, the Detroit Board of Education, engaged in widespread purposeful acts of racial segregation in the Detroit School District. Without belaboring the details, it is sufficient to [p785] note that the various techniques used in Detroit were typical of methods employed to segregate students by race in areas where no statutory dual system of education has existed. See, e.g., Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973). Exacerbating the effects of extensive residential segregation between Negroes and whites, the school board consciously drew attendance zones along lines which maximized the segregation of the races in schools as well. Optional attendance zones were created for neighborhoods undergoing racial transition so as to allow whites in these areas to escape integration. Negro students in areas with overcrowded schools were transported past or away from closer white schools with available space to more distant Negro schools. Grade structures and feeder-school patterns were created and maintained in a manner which had the foreseeable and actual effect of keeping Negro and white pupils in separate schools. Schools were also constructed in locations and in sizes which ensured that they would open with predominantly one-race student bodies. In sum, the evidence adduced below showed that Negro children had been intentionally confined to an expanding core of virtually all-Negro schools immediately surrounded by a receding band of all-white schools.
Contrary to the suggestions in the Court’s opinion, the basis for affording a desegregation remedy in this case was not some perceived racial imbalance either between schools within a single school district or between independent school districts. What we confront here is “a systematic program of segregation affecting a substantial portion of the students, schools . . . and facilities within the school system. . . .” Id. at 201. The constitutional violation found here was not some de facto racial imbalance, but rather the purposeful, intentional, massive, de jure segregation of the Detroit city schools, [p786] which, under our decision in Keyes, forms “a predicate for a finding of the existence of a dual school system,” ibid., and justifies “all-out desegregation” Id. at 214.
Having found a de jure segregated public school system in operation in the city of Detroit, the District Court turned next to consider which officials and agencies should be assigned the affirmative obligation to cure the constitutional violation. The court concluded that responsibility for the segregation in the Detroit city schools rested not only with the Detroit Board of Education, but belonged to the State of Michigan itself and the state defendants in this case — that is, the Governor of Michigan, the Attorney General, the State Board of Education, and the State Superintendent of Public Instruction. While the validity of this conclusion will merit more extensive analysis below, suffice it for now to say that it was based on three considerations. First, the evidence at trial showed that the State itself had taken actions contributing to the segregation within the Detroit schools. Second, since the Detroit Board of Education was an agency of the State of Michigan, its acts of racial discrimination were acts of the State for purposes of the Fourteenth Amendment. Finally, the District Court found that, under Michigan law and practice, the system of education was, in fact, a state school system, characterized by relatively little local control and a large degree of centralized state regulation, with respect to both educational policy and the structure and operation of school district.
Having concluded, then, that the school system in the city of Detroit was a de jure segregated system and that the State of Michigan had the affirmative duty to remedy that condition of segregation, the District Court then turned to the difficult task of devising an effective remedy. It bears repeating that the District Court’s focus at this stage of the litigation remained what it had [p787]been at the beginning — the condition of segregation within the Detroit city schools. As the District Court stated:
From the initial ruling [on segregation] to this day, the basis of the proceedings has been and remains the violation: de jure school segregation. . . . The task before this court, therefore, is now, and . . . has always been, how to desegregate the Detroit public schools.
The District Court first considered three desegregation plans limited to the geographical boundaries of the city of Detroit. All were rejected as ineffective to desegregate the Detroit city schools. Specifically, the District Court determined that the racial composition of the Detroit student body is such that implementation of any Detroit-only plan “would clearly make the entire Detroit public school system racially identifiable as Black” and would “leave many of its schools 75 to 90 percent Black.” The District Court also found that a Detroit-only plan
would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population.
Based on these findings, the District Court reasoned that “relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city” because a Detroit-only decree “would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation.” The District Court therefore concluded that it “must look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools. . . .”
In seeking to define the appropriate scope of that expanded desegregation area, however, the District Court continued to maintain as its sole focus the condition shown to violate the Constitution in this case — the segregation of the Detroit school system. As it stated, the [p788] primary question
remains the determination of the area necessary and practicable effectively to eliminate “root and branch” the effects of state-imposed and supported segregation and to desegregate the Detroit public schools.
There is simply no foundation in the record, then, for the majority’s accusation that the only basis for the District Court’s order was some desire to achieve a racial balance in the Detroit metropolitan area. [n1] In fact, just the contrary is the case. In considering proposed desegregation areas, the District Court had occasion to criticize one of the State’s proposals specifically because it had no basis other than its “particular racial ratio,” and did not focus on “relevant factors, like eliminating racially identifiable schools [and] accomplishing maximum actual desegregation of the Detroit public schools.” Similarly, in rejecting the Detroit School Board’s proposed desegregation area, even though it included more all-white districts and therefore achieved a higher white-Negro ratio, the District Court commented:
There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial [p789] identifiabiity of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board’s interest in the inclusion of these school districts is not racial desegregation, but to increase the average socio-economic balance of all the schools in the abutting regions and clusters.
The Court also misstates the basis for the District Court’s order by suggesting that, since the only segregation proved at trial was within the Detroit school system, any relief which extended beyond the jurisdiction of the Detroit Board of Education would be inappropriate because it would impose a remedy on outlying districts “not shown to have committed any constitutional violation.”Ante at 745. [n2] The essential foundation of inter-district relief in this case was not to correct conditions within outlying districts which themselves engaged in purposeful segregation. Instead, inter-district relief was seen as a necessary part of any meaningful effort by the State of Michigan to remedy the state caused segregation within the city of Detroit.
Rather than consider the propriety of inter-district relief on this basis, however, the Court has conjured up a largely fictional account of what the District Court was attempting to accomplish. With all due respect, the Court, in my view, does a great disservice to the District Judge who labored long and hard with this complex litigation by accusing him of changing horses in midstream and shifting the focus of this case from the pursuit of a remedy for the condition of segregation [p790] within the Detroit school system to some unprincipled attempt to impose his own philosophy of racial balance on the entire Detroit metropolitan area. See ante at 738-739. The focus of this case has always been the segregated system of education in the city of Detroit. The District Court determined that inter-district relief was necessary and appropriate only because it found that the condition of segregation within the Detroit school system could not b cured with a Detroit-only remedy. It is on this theory that the inter-district relief must stand or fall. Unlike the Court, I perceive my task to be to review the District Court’s order for what it is, rather than to criticize it for what it manifestly is not.
II
As the foregoing demonstrates, the District Court’s decision to expand its desegregation decree beyond the geographical limits of the city of Detroit rested in large part on its conclusions (A) that the State of Michigan was ultimately responsible for curing the condition of segregation within the Detroit city schools, and (b) that a Detroit-only remedy would not accomplish this task. In my view, both of these conclusions are well supported by the facts of this case and by this Court’s precedents.
A
To begin with, the record amply supports the District Court’s findings that the State of Michigan, through state officers and state agencies, had engaged in purposeful acts which created or aggravated segregation in the Detroit schools. The State Board of Education, for example, prior to 1962, exercised its authority to supervise local schoolsite selection in a manner which contributed to segregation. 484 F.2d 215, 238 (CA6 1973). Furthermore, the State’s continuing authority, after 1962, [p791] to approve school building construction plans [n3]had intertwined the State with site selection decisions of the Detroit Board of Education which had the purpose and effect of maintaining segregation.
The State had also stood in the way of past efforts to desegregate the Detroit city schools. In 1970, for example, the Detroit School Board had begun implementation of its own desegregation plan for its high schools, despite considerable public and official resistance. The State Legislature intervened by enacting Act 48 of the Public Acts of 1970, specifically prohibiting implementation of the desegregation plan and thereby continuing the growing segregation of the Detroit school system. Adequate desegregation of the Detroit system was also hampered by discriminatory restrictions placed by the State on the use of transportation within Detroit. While state aid for transportation was provided by statute for suburban districts, many of which were highly urbanized, aid for intra-city transportation was excepted. One of the effects of this restriction was to encourage the construction of small walk-in neighborhood schools in Detroit, thereby lending aid to the intentional policy of creating a school system which reflected, to the greatest extent feasible, extensive residential segregation. Indeed, that one of the purposes of the transportation restriction was to impede desegregation was evidenced when the Michigan Legislature amended the State Transportation Aid Act to cover intra-city transportation but expressly prohibited the allocation of funds for cross-busing of students within a school district to achieve racial balance. [n4]Cf. North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971). [p792]
Also significant was the State’s involvement during the 1950’s in the transportation of Negro high school students from the Carver School District past a closer white high school in the Oak Park District to a more distant Negro high school in the Detroit system. Certainly the District Court’s finding that the State Board of Education had knowledge of this action and had given its tacit or express approval was not clearly erroneous. Given the comprehensive statutory powers of the State Board of Education over contractual arrangements between school districts in the enrollment of student on a nonresident tuition basis, including certification of the number of pupils involved in the transfer and the amount of tuition charged, over the review of transportation routes and distances, and over the disbursement of transportation funds, [n5] the State Board inevitably knew and understood the significance of this discriminatory act.
Aside from the acts of purposeful segregation committed by the State Legislature and the State Board of Education, the District Court also concluded that the State was responsible for the many intentional acts of segregation committed by the Detroit Board of Education, an agency of the State. The majority is only willing to accept this finding arguendo. See ante at 748. I have no doubt, however, as to its validity under the Fourteenth Amendment.
“The command of the Fourteenth Amendment,” it should be recalled, “is that no ‘state’ shall deny to any person within its jurisdiction the equal protection of the laws.” Cooper v. Aaron, 358 U.S. 1, 16 (1958). While a State can act only through “the officers or agents by whom its powers are exerted,” Ex parte Virginia, 100 U.S. 339, 347 (1880), actions by an agent or officer of [p793] the State are encompassed by the Fourteenth Amendment for, “as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.” Ibid. See also Cooper v. Aaron, supra; Virginia v. Rives, 100 U.S. 313, 318 (1880); Shelley v. Kraemer, 334 U.S. 1, 14 (1948).
Under Michigan law a “school district is an agency of the State government.”School District of the City of Lansing v. State Board of Education, 367 Mich. 591, 600, 116 N.W.2d 866, 870 (1962). It is
a legal division of territory, created by the State for educational purposes, to which the State has granted such powers as are deemed necessary to permit the district to function as a State agency.
Detroit Board of Education v. Superintendent of Public Instruction, 319 Mich. 436, 450, 29 N.W.2d 902, 908 (1947). Racial discrimination by the school district, an agency of the State, is therefore racial discrimination by the State itself, forbidden by the Fourteenth Amendment. See, e.g., Pennsylvania v. Board of Trusts, 353 U.S. 230 (1957).
We recognized only last Term in Keyes that it was the State itself which was ultimately responsible for de jure acts of segregation committed by a local school board. A deliberate policy of segregation by the local board, we held, amounted to “state-imposed segregation.” 413 U.S. at 200. Wherever a dual school system exists, whether compelled by state statute or created by a local board’s systematic program of segregation,
the State automatically assumes an affirmative duty “to effectuate a transition to a racially nondiscriminatory school system” [and] to eliminate from the public schools within their school system “all vestiges of state-imposed segregation.”
Ibid. (emphasis added).
Vesting responsibility with the State of Michigan for Detroit’s segregated schools is particularly appropriate, as [p794] Michigan, unlike some other States, operates a single state-wide system of education, rather than several separate and independent local school systems. The majority’s emphasis on local governmental control and local autonomy of school districts in Michigan will come as a surprise to those with any familiarity with that State’s system of education. School districts are not separate and distinct sovereign entities under Michigan law, but, rather, are “‘auxiliaries of the State,'” subject to its “absolute power.” Attorney General of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 240 (1905). The courts of the State have repeatedly emphasized that education in Michigan is not a local governmental concern, but a state function.
Unlike the delegation of other powers by the legislature to local governments, education is not inherently a part of the local self-government of a municipality. . . . Control of our public school system is a State matter delegated and lodged in the State legislature by the Constitution. The policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given [them] by the legislature.
School District of the City of Lansing v. State Board of Education, supra at 595, 116 N.W.2d at 868. The Supreme Court of Michigan has noted the deep roots of this policy:
It has been settled by the Ordinance of 1787, the several Constitutions adopted in this State, by its uniform course of legislation, and by the decisions of this court, that education in Michigan is a matter of State concern, that it is no part of the local self-government of a particular township or municipality. . . . [p795]The legislature has always dictated the educational policy of the State.
In re School District No. 6, 284 Mich. 132, 145-146, 278 N.W. 792, 797 (1938).
The State’s control over education is reflected in the fact that, contrary to the Court’s implication, there is little or no relationship between school districts and local political units. To take the 85 outlying local school districts in the Detroit metropolitan area as examples, 17 districts lie in two counties, two in three counties. One district serves five municipalities; other suburban municipalities are fragmented into as many as six school districts. Nor is there any apparent state policy with regard to the size of school districts, as they now range from 2,000 to 285,000 students.
Centralized state control manifests itself in practice, as well as in theory. The State controls the financing of education in several ways. The legislature contributes a substantial portion of most school districts’ operating budgets with funds appropriated from the State’s General Fund revenues raised through state-wide taxation. [n6] The State’s power over the purse can be and is, in fact, used to enforce the State’s powers over local districts. [n7] In addition, although local districts obtain funds through local property taxation, the State has assumed the responsibility to ensure equalized property valuations throughout the State. [n8] The State also establishes [p796] standards for teacher certification and teacher tenure; [n9] determines part of the required curriculum; [n10] sets the minimum school term; [n11] approves bus routes, equipment, and drivers; [n12] approves textbooks; [n13] and establishes procedures for student discipline. [n14] The State Superintendent of Public Instruction and the State Board of Education have the power to remove local school board members from office for neglect of their duties. [n15]
Most significantly for present purposes, the State has wide-ranging powers to consolidate and merge school districts, even without the consent of the districts themselves or of the local citizenry. [n16] See, e.g., Attorney General ex rel. Keis v. Lowrey, 131 Mich. 639, 92 N.W. 289 (1902), aff’d, 199 U.S. 233(1905). Indeed, recent years have witnessed an accelerated program of school district consolidations, mergers, and annexations, many of which were state-imposed. Whereas the State had 7,362 local districts in 1912, the number had been reduced to 1,438 in 1964 and to 738 in 1968. [n17] By June, 1972, only 608 school districts remained. Furthermore, the State has broad powers to transfer property from one district to another, again without the consent of the local school districts affected by the transfer. [n18] See, e.g., School District [p797] of the City of Lansing v. State Board of Education, supra; Imlay Township District v. State Board of Education, 359 Mich. 478, 102 N.W.2d 720 (1960).
Whatever may be the history of public education in other parts of our Nation, it simply flies in the face of reality to say, as does the majority, that, in Michigan, “[n]o single tradition in public education is more deeply rooted than local control over the operation of schools. . . .” Ante at 741. As the State’s Supreme Court has said: “We have repeatedly held that education in this State is not a matter of local concern, but belongs to the State at large.” Collins v. City of Detroit, 195 Mich. 330, 335-336, 161 N.W. 905, 907 (1917). See also Sturgis v. County of Allegan, 343 Mich. 209, 215, 72 N.W.2d 56, 59 (1955); Van Fleet v. Oltman, 244 Mich. 241, 244, 221 N.W. 299, 300 (1928); Child Welfare Society of Flint v. Kennedy School District, 220 Mich. 290, 296, 189 N.W. 1002, 1004 (1922). Indeed, a study prepared for the 1961 Michigan Constitutional Convention noted that the Michigan Constitution’s articles on education had resulted in “the establishment of a state system of education in contrast to a series of local school systems.” Elementary and Secondary Education and the Michigan Constitution, Michigan Constitutional Convention Studies 1 (1961).
In sum, several factors in this case coalesce to support the District Court’s ruling that it was the State of Michigan itself, not simply the Detroit Board of Education, which bore the obligation of curing the condition of segregation within the Detroit city schools. The actions of the State itself directly contributed to Detroit’s segregation. Under the Fourteenth Amendment, the State is ultimately responsible for the actions of its local agencies. And, finally, given the structure of Michigan’s educational system, Detroit’s segregation cannot be [p798] viewed as the problem of an independent and separate entity. Michigan operates a single state-wide system of education, a substantial part of which was shown to be segregated in this case.
B
What action, then, could the District Court require the State to take in order to cure Detroit’s condition of segregation? Our prior cases have not minced words as to what steps responsible officials and agencies must take in order to remedy segregation in the public schools. Not only must distinctions on the basis of race be terminated for the future, but school officials are also
clearly charged with 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 v. County School Board of New Kent County, 391 U.S. 430, 437-438 (1968).See also Lee v. Macon County Board of Education, 267 F.Supp. 458 (MD Ala.),aff’d sub nom. Wallace v. United States, 389 U.S. 215 (1967). Negro students are not only entitled to neutral nondiscriminatory treatment in the future. They must receive “what Brown II promised them: a school system in which all vestiges of enforced racial segregation have been eliminated.” Wright v. Council of the City of Emporia, 407 U.S. 451, 463 (1972). See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971). These remedial standards are fully applicable not only to school districts where a dual system was compelled by statute, but also where, as here, a dual system was the product of purposeful and intentional state action. See Keyes, 413 U.S. at 200-201.
After examining three plans limited to the city of Detroit, the District Court correctly concluded that none would eliminate root and branch the vestiges of[p799] unconstitutional segregation. The plans’ effectiveness, of course, had to be evaluated in the context of the District Court’s findings as to the extent of segregation in the Detroit city schools. As indicated earlier, the most essential finding was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools. [n19] Thus, in 1960, of Detroit’s 251 [p800] regular attendance schools, 100 were 90% or more white and 71 were 90% or more Negro. In 1970, of Detroit’s 282 regular attendance schools, 69 were 90% or more white and 133 were 90% or more Negro. While in 1960, 68% of all schools were 90% or more one race, by 1970, 71.6% of the schools fell into that category. The growing core of all-Negro schools was further evidenced in total school district population figures. In 1960, the Detroit system had 46% Negro students and 54% white students, but by 1970, 64% of the students were Negro and only 36% were white. This increase in the proportion of Negro students was the highest of any major Northern city.
It was with these figures in the background that the District Court evaluated the adequacy of the three Detroit-only plans submitted by the parties. Plan A, proposed by the Detroit Board of Education, desegregated the high schools and about a fifth of the middle-level schools. It was deemed inadequate, however, because it did not desegregate elementary schools and left the middle-level schools not included in the plan more segregated than ever. Plan C, also proposed by the Detroit Board, was deemed inadequate because it too covered only some grade levels, and would leave elementary schools segregated. Plan B, the plaintiffs’ plan, though requiring the transportation of 82,000 pupils and the acquisition of 900 school buses, would make little [p801] headway in rooting out the vestiges of segregation. To begin with, because of practical limitations, the District Court found that the plan would leave many of the Detroit city schools 75% to 90% Negro. More significantly, the District Court recognized that, in the context of a community which historically had a school system marked by rigidde jure segregation, the likely effect of a Detroit-only plan would be to “change a school system which is now Black and White to one that would be perceived as Black. . . .” The result of this changed perception, the District Court found, would be to increase the flight of whites from the city to the outlying suburbs, compounding the effects of the present rate of increase in the proportion of Negro students in the Detroit system. Thus, even if a plan were adopted which, at its outset, provided in every school a 65% Negro-35% white racial mix in keeping with the Negro-white proportions of the total student population, such a system would, in short order, devolve into an all-Negro system. The net result would be a continuation of the all-Negro schools which were the hallmarks of Detroit’s former dual system of one-race schools.
Under our decisions, it was clearly proper for the District Court to take into account the so-called “white flight” from the city schools which would be forthcoming from any Detroit-only decree. The court’s prediction of white flight was well supported by expert testimony based on past experience in other cities undergoing desegregation relief. We ourselves took the possibility of white flight into account in evaluating the effectiveness of a desegregation plan in Wright, supra, where we relied on the District Court’s finding that, if the city of Emporia were allowed to withdraw from the existing system, leaving a system with a higher proportion of Negroes, it “‘may be anticipated that the proportion[p802] of whites in county schools may drop as those who can register in private academies.’ . . . ” 407 U.S. at 464. One cannot ignore the white flight problem, for where legally imposed segregation has been established, the District Court has the responsibility to see to it not only that the dual system is terminated at once, but also that future events do not serve to perpetuate or reestablish segregation. See Swann, 402 U.S. at 21. See also Green, 391 U.S. at 438 n. 4;Monroe v. Board of Comm’rs, 391 U.S. 450, 459 (1968).
We held in Swann, supra, that, where de jure segregation is shown, school authorities must make “every effort to achieve the greatest possible degree of actual desegregation.” 402 U.S. at 26. This is the operative standard reemphasized in Davis v. School Comm’rs of Mobile County, 402 U.S. 33, 37 (1971). If these words have any meaning at all, surely it is that school authorities must, to the extent possible, take all practicable steps to ensure that Negro and white children, in fact, go to school together. This is, in the final analysis, what desegregation of the public schools is all about.
Because of the already high and rapidly increasing percentage of Negro students in the Detroit system, as well as the prospect of white flight, a Detroit-only plan simply has no hope of achieving actual desegregation. Under such a plan, white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown I was aimed at will not be cured, but will be perpetuated for the future.
Racially identifiable schools are one of the primary vestiges of state-imposed segregation which an effective desegregation decree must attempt to eliminate. In Swann, supra, for example, we held that “[t]he district judge or school authorities . . . will thus necessarily be concerned with the elimination of one-race schools.” 402 [p803] U.S. at 26. There is “a presumption,” we stated, “against schools that are substantially disproportionate in their racial composition.” Ibid. And in evaluating the effectiveness of desegregation plans in prior cases, we ourselves have considered the extent to which they discontinued racially identifiable schools. See, e.g., Green v. County School Board of New Kent County, supra; Wright v. Council of the City of Emporia, supra. For a principal end of any desegregation remedy is to ensure that it is no longer “possible to identify a ‘white school’ or a ‘Negro school.'” Swann, supra,at 18. The evil to be remedied in the dismantling of a dual system is the “[r]acial identification of the system’s schools.” Green, 391 U.S. at 435. The goal is a system without white schools or Negro schools a system with “just schools.” Id.at 442. A school authority’s remedial plan or a district court’s remedial decree is to be judged by its effectiveness in achieving this end. See Swann, supra, at 25;Davis, supra, at 37; Green, supra, at 439.
We cautioned in Swann, of course, that the dismantling of a segregated school system does not mandate any particular racial balance. 402 U.S. at 24. We also concluded that a remedy under which there would remain a small number of racially identifiable schools was only presumptively inadequate and might be justified. Id. at 26. But this is a totally different case
The flaw of a Detroit-only decree is not that it does not reach some ideal degree of racial balance or mixing. It simply does not promise to achieve actual desegregation at all. It is one thing to have a system where a small number of students remain in racially identifiable schools. It is something else entirely to have a system where all students continue to attend such schools.
The continued racial identifiability of the Detroit schools under a Detroit-only remedy is not simply a reflection of their high percentage of Negro students.[p804] What is or is not a racially identifiable vestige of de jure segregation must necessarily depend on several factors. Cf. Keyes, 413 U.S. at 196. Foremost among these should be the relationship between the schools in question and the neighboring community. For these purposes, the city of Detroit and its surrounding suburbs must be viewed as a single community. Detroit is closely connected to its suburbs in many ways, and the metropolitan area is viewed as a single cohesive unit by its residents. About 40% of the residents of the two suburban counties included in the desegregation plan work in Wayne County, in which Detroit is situated. Many residents of the city work in the suburbs. The three counties participate in a wide variety of cooperative governmental ventures on a metropolitan-wide basis, including a metropolitan transit system, park authority, water and sewer system, and council of governments. The Federal Government has classified the tri-county area as a Standard Metropolitan Statistical Area, indicating that it is an area of “economic and social integration.” United States v. Connecticut National Bank, ante at 670.
Under a Detroit-only decree, Detroit’s schools will clearly remain racially identifiable in comparison with neighboring schools in the metropolitan community. Schools with 65% and more Negro students will stand in sharp and obvious contrast to schools in neighboring districts with less than 2% Negro enrollment. Negro students will continue to perceive their schools as segregated educational facilities, and this perception will only be increased when whites react to a Detroit-only decree by fleeing to the suburbs to avoid integration. School district lines, however innocently drawn, will surely be perceived as fences to separate the races when, under a Detroit-only decree, white parents withdraw their children [p805] from the Detroit city schools and move to the suburbs in order to continue them in all-white schools. The message of this action will not escape the Negro children in the city of Detroit.See Wright, 407 U.S. at 466. It will be of scant significance to Negro children who have for years been confined by de jure acts of segregation to a growing core of all-Negro schools surrounded by a ring of all-white schools that the new dividing line between the races is the school district boundary.
Nor can it be said that the State is free from any responsibility for the disparity between the racial makeup of Detroit and its surrounding suburbs. The State’s creation, through de jure acts of segregation, of a growing core of all-Negro schools inevitably acted as a magnet to attract Negroes to the areas served by such schools and to deter them from settling either in other areas of the city or in the suburbs. By the same token, the growing core of all-Negro schools inevitably helped drive whites to other areas of the city or to the suburbs. As we recognized in Swann:
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. . . . [Action taken] to maintain the separation of the races with a minimum departure from the formal principles of “neighborhood zoning” . . . does more than simply influence the short-run composition of the student body. . . . It may well promote segregated residential patterns which, when combined with “neighborhood zoning,” further lock the school system into the mold of separation of the races. Upon a proper [p806] showing, a district court may consider this in fashioning a remedy.
402 U.S. at 20-21. See also Keyes, 413 U.S. at 202. The rippling effects on residential patterns caused by purposeful acts of segregation do not automatically subside at the school district border. With rare exceptions, these effects naturally spread through all the residential neighborhoods within a metropolitan area. See id. at 202-203.
The State must also bear part of the blame for the white flight to the suburbs which would be forthcoming from a Detroit-only decree and would render such a remedy ineffective. Having created a system where white and Negroes were intentionally kept apart so that they could not become accustomed to learning together, the State is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs. Indeed, by limiting the District Court to a Detroit-only remedy and allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action.
The majority asserts, however, that involvement of outlying districts would do violence to the accepted principle that “the nature of the violation determines the scope of the remedy.” Swann, supra, at 16. See ante at 744-745. Not only is the majority’s attempt to find in this single phrase the answer to the complex and difficult questions presented in this case hopelessly simplistic, but, more important, the Court reads these words in a manner which perverts their obvious meaning. The nature of a violation determines the scope of the remedy simply because the function of any remedy is to cure the violation to which it is addressed. In school segregation [p807] cases, as in other equitable causes, a remedy which effectively cures the violation is what is required. See Green, 391 U.S. at 439; Davis, 402 U.S. at 37. No more is necessary, but we can tolerate no less. To read this principle as barring a district court from imposing the only effective remedy for past segregation and remitting the court to a patently ineffective alternative is, in my view, to turn a simple common sense rule into a cruel and meaningless paradox. Ironically, by ruling out an inter-district remedy, the only relief which promises to cure segregation in the Detroit public schools, the majority flouts the very principle on which it purports to rely.
Nor should it be of any significance that the suburban school districts were not shown to have themselves taken any direct action to promote segregation of the races Given the State’s broad powers over local school districts, it was well within the State’s powers to require those districts surrounding the Detroit school district to participate in a metropolitan remedy. The State’s duty should be no different here than in cases where it is shown that certain of a State’s voting districts are malapportioned in violation of the Fourteenth Amendment.See Reynolds v. Sims, 377 U.S. 533 (1964). Overrepresented electoral districts are required to participate in reapportionment although their only “participation” in the violation was to do nothing about it. Similarly, electoral districts which themselves meet representation standards must frequently be redrawn as part of a remedy for other over- and under-inclusive districts. No finding of fault on the part of each electoral district and no finding of a discriminatory effect on each district is a prerequisite to its involvement in the constitutionally required remedy. By the same logic, no finding of fault on the part of the suburban school districts in this case [p808] and no finding of a discriminatory effect on each district should be a prerequisite to their involvement in the constitutionally required remedy.
It is the State, after all, which bears the responsibility under Brown of affording a nondiscriminatory system of education. The State, of course, is ordinarily free to choose any decentralized framework for education it wishes, so long as it fulfills that Fourteenth Amendment obligation. But the State should no more be allowed to hide behind its delegation and compartmentalization of school districts to avoid its constitutional obligations to its children than it could hide behind its political subdivisions to avoid its obligations to its voters. Reynolds v. Sims, supra, at 575. See also Gomillion v. Lightfoot, 364 U.S. 339 (1960).
It is a hollow remedy indeed where, “after supposed ‘desegregation,’ the schools remained segregated in fact.” Hobson v. Hansen, 269 F.Supp. 401, 495 (DDC 1967). We must do better than “‘substitute . . . one segregated school system for another segregated school system.'” Wright, 407 U.S. at 456. To suggest, as does the majority, that a Detroit-only plan somehow remedies the effects of de jure segregation of the races is, in my view, to make a solemn mockery of Brown I’s holding that separate educational facilities are inherently unequal and of Swann’s unequivocal mandate that the answer to de juresegregation is the greatest possible degree of actual desegregation.
III
One final set of problems remains to be considered. We recognized in Brown II,and have reemphasized ever since, that, in fashioning relief in desegregation cases,
the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for [p809] adjusting and reconciling public and private needs.
Brown II, 349 U.S. at 300. See also Swann, supra.
Though not resting its holding on this point, the majority suggests that various equitable considerations militate against inter-district relief. The Court, for example, refers to financing and administrative problems, the logistical problems attending large-scale transportation of students, and the prospect of the District Court’s becoming a “de facto ‘legislative authority'” and “‘school superintendent’ for the entire area.” Ante at 743-744. The entangling web of problems woven by the Court, however, appears on further consideration to be constructed of the flimsiest of threads.
I deal first with the last of the problems posed by the Court — the specter of the District Court qua “school superintendent” and “legislative authority” — for analysis of this problem helps put the other issues in proper perspective. Our cases, of course, make clear that the initial responsibility for devising an adequate desegregation plan belongs with school authorities, not with the District Court. The court’s primary role is to review the adequacy of the school authorities’ efforts and to substitute is own plan only if and to the extent they default. See Swann, 402 U.S. at 16; Green, 391 U.S. at 439. Contrary to the majority’s suggestions, the District Judge in this case consistently adhered to these procedures, and there is every indication that he would have continued to do so. After finding de jure segregation, the court ordered the parties to submit proposed Detroit-only plans. The state defendants were also ordered to submit a proposed metropolitan plan extending beyond Detroit’s boundaries. As the District Court stated, “the State defendants . . . bear the initial burden of coming forward with a proposal that promises to work.” The state defendants defaulted in this obligation, however. [p810] Rather than submit a complete plan, the State Board of Education submitted six proposals, none of which was, in fact, a desegregation plan. It was only upon this default that the District Court began to take steps to develop its own plan. Even then, the District Court maximized school authority participation by appointing a panel representing both plaintiffs and defendants to develop a plan. Pet. App. 99a-100a. Furthermore, the District Court still left the state defendants the initial responsibility for developing both interim and final financial and administrative arrangements to implement inter-district relief. Id. at 104a-105a. The Court of Appeals further protected the interests of local school authorities by ensuring that the outlying suburban districts could fully participate in the proceedings to develop a metropolitan remedy.
These processes have not been allowed to run their course. No final desegregation plan has been proposed by the panel of experts, let alone approved by the District Court. We do not know in any detail how many students will be transported to effect a metropolitan remedy, and we do not know how long or how far they will have to travel. No recommendations have yet been submitted by the state defendants on financial and administrative arrangements. In sum, the practicality of a final metropolitan plan is simply not before us at the present time. Since the State and the panel of expert have not yet had an opportunity to come up with a workable remedy, there is no foundation for the majority’s suggestion of the impracticality of inter-district relief. Furthermore, there is no basis whatever for assuming that the District Court will inevitably be forced to assume the role of legislature or school superintendent. [n20] [p811] Were we to hold that it was its constitutional duty to do so, there is every indication that the State of Michigan would fulfill its obligation and develop a plan which is workable, administrable, financially sound, and, most important, in the best interest of quality education for all of the children in the Detroit metropolitan area.
Since the Court chooses, however, to speculate on the feasibility of a metropolitan plan, I feel constrained to comment on the problem areas it has targeted. To begin with, the majority’s questions concerning the practicality of consolidation of school districts need not give us pause. The State clearly has the power, under existing law, to effect a consolidation if it is ultimately determined that this offers the best prospect for a workable and stable desegregation plan. See supra at 796-797. And given the 1,000 or so consolidations of school districts which have taken place in the past, it is hard to believe that the State has not already devised means of solving most, if not all, of the practical problems which the Court suggests consolidation would entail.
Furthermore, the majority ignores long-established Michigan procedures under which school districts may enter into contractual agreements to educate their pupils in other districts using state or local funds to finance nonresident education. [n21] Such agreements could form an [p812] easily administrable framework for inter-district relief short of outright consolidation of the school districts. The District Court found that inter-district procedures like these were frequently used to provide special educational services for handicapped children, and extensive statutory provision is also made for their use in vocational education. [n22] Surely if school districts are willing to engage in inter-district programs to help those unfortunate children crippled by physical or mental handicaps, school districts can be required to participate in an inter-district program to help those children in the city of Detroit whose educations and very futures have been crippled by purposeful state segregation.
Although the majority gives this last matter only fleeting reference, it is plain that one of the basic emotional and legal issues underlying these cases concerns the propriety of transportation of students to achieve desegregation. While others may have retreated from its standards, see, e.g., Keyes, 413 U.S. at 217 (POWELL, J., concurring in part and dissenting in part), I continue to adhere to the guidelines set forth in Swann on this issue. See 402 U.S. at 231. And though no final desegregation plan is presently before us, to the extent the outline of such a plan is now visible, it is clear that the transportation it would entail will be fully consistent with these guidelines.
First of all, the metropolitan plan would not involve the busing of substantially more students than already ride buses. The District Court found that, state-wide, 35-40% of all students already arrive at school on a bus. In those school districts in the tri-county Detroit metropolitan area eligible for state reimbursement of transportation costs, 42%-52% of all students rode buses to school. In the tri-county areas as a whole, approximately [p813] 300,000 pupils arrived at school on some type of bus, with about 60,000 of these apparently using regular public transit. In comparison, the desegregation plan, according to its present rough outline, would involve the transportation of 310,000 students, about 40% of the population within the desegregation area.
With respect to distance and amount of time traveled, 17 of the outlying school districts involved in the plan are contiguous to the Detroit district. The rest are all within 8 miles of the Detroit city limits. The trial court, in defining the desegregation area, placed a ceiling of 40 minutes one way on the amount of travel time, and many students will obviously travel for far shorter periods. As to distance, the average state-wide bus trip is 82 miles one way, and, in some parts of the tri-county area, students already travel for one and a quarter hours or more each way. In sum, with regard to both the number of students transported and the time and distances involved, the outlined desegregation plan “compares favorably with the transportation plan previously operated. . . .”Swann, supra, at 30.
As far as economics are concerned, a metropolitan remedy would actually be more sensible than a Detroit-only remedy. Because of prior transportation aid restrictions, see supra at 791, Detroit largely relied on public transport, at student expense, for those students who lived too far away to walk to school. Since no inventory of school buses existed, a Detroit-only plan was estimated to require the purchase of 900 buses to effectuate the necessary transportation. The tri-county area, in contrast, already has an inventory of 1,800 buses, many of which are now underutilized. Since increased utilization of the existing inventory can take up much of the increase in transportation involved in the inter-district remedy, the District Court found that only 350 additional buses would [p814] probably be needed, almost two-thirds fewer than a Detroit-only remedy. Other features of an inter-district remedy bespeak its practicality, such as the possibility of pairing up Negro schools near Detroit’s boundary with nearby white schools on the other side of the present school district line.
Some disruption, of course, is the inevitable product of any desegregation decree, whether it operates within one district or on an inter-district basis. As we said in Swann, however:
Absent a constitutional violation, there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations, and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided. . . .
402 U.S. at 28.
Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation’s childhood and adolescence are not quickly thrown aside in its middle years. But just as the inconvenience of some cannot be allowed to stand in the way of the rights of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case. Today’s holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution’s guarantee of equal justice than it is the product of neutral principle of law. In [p815] the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities — one white, the other black — but it is a course, I predict, our people will ultimately regret. I dissent.
KC Johnson 