Supreme Court decision
By: Warren Burger
Date: April 20, 1971
About the Author: Warren Burger (1907–1995) had a private practice for over twenty years before he became a U.S. assistant attorney general and then a judge in the U.S. Court of Appeals. He was appointed chief justice in 1969 and served until 1986. His judicial record reflected his belief in "strict constructionism," where the Constitution was construed narrowly, and that society's rights should outweigh the rights of the accused.
Slavery legally ended in the United States in 1865, but it took many more decades before the last of its vestiges were finally removed. After the Thirteenth Amendment in 1865, which ended slavery across the United States, the North took steps to help former slaves and to rebuild the South. Part of that Reconstruction was the passage of the Fourteenth Amendment (1868), guaranteeing due process and equal protection to all citizens, and of the Fifteenth Amendment (1870), providing that the right to vote would not be denied on the basis of the color of one's skin.
The North soon tired of Reconstruction though and left the former slaves at the mercy of their former owners. The South quickly passed Jim Crow laws that segregated all aspects of southern life, including courtrooms, railroad cars, bathrooms, and schools. The Supreme Court gave this system its stamp of approval in Plessy v. Ferguson (1896), which held that a separate system was allowable as long as it was equal. Of course, with whites holding all the political power in the South, the system was separate, but hardly equal.
The National Association for the Advancement of Colored People (NAACP) challenged segregation throughout the South, especially segregation within educational institutions. Its first victory in education came in Missouri ex rel. Gaines v. Canada (1938), where Missouri was forced to provide the opportunity for a black man to go to law school. Most states responded to this by providing token schools for blacks in their states. After victories at the graduate school level attacked many parts of segregated education, the NAACP directly attacked segregated schools in Brown v. Board of Education, and in 1954 the Supreme Court held that segregated schools were illegal.
Segregation did not end to any meaningful extent until the 1960s when the 1964 Civil Rights Act was passed, allowing the federal government to sue schools to force integration. However, many states still allowed "freedom of choice" plans that permitted children to pick their own schools, thereby allowing the perseverance of segregation.
In the absence of any other successful plan, North Carolina's district court oversaw the busing of students to create integrated education. The Supreme Court upheld the use of busing in order to achieve this integration. Since Swann v. Board of Education, busing has generally been upheld within a single county as a way to achieve integration, and federal judges have kept an eye on the integration process, although less scrutiny has been given in recent years. The Supreme Court, however, struck down the imposition of a multicounty busing system in Detroit, Michigan, as a way to desegregate that school system, and many parents have moved their children to the suburbs or to private schools as a way to avoid integrated schools.
In the 1990s, many district judges terminated their oversight of educational systems since they found that the schools have done as much as possible to desegregate and the Supreme Court has generally upheld these cessations. Segregated education still exists in many areas, not due to official policy, but due to housing patterns. The United States still has not found a way, or the will, to deal with this issue.
Primary Source: Swann v. Board of Education [excerpt]
SYNOPSIS: Chief Justice Warren Burger notes that Brown will be followed and that only when constitutional violations occur will the courts step in. He states that the use of quotas in desegregating the schools is acceptable, but it is only a starting point. He also comments that the pairing of schools and transportation from area to area are both acceptable tools if a court finds them necessary to assist the process of desegregation. The decision ends by upholding all parts of the lower court's ruling.
Mr. Chief Justice Burger delivered the opinion of the Court.…
Nearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings.…
Over the 16 years since Brown II, many difficulties were encountered in implementation of the basic constitutional requirement that the State not discriminate between public school children on the basis of their race. Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then. Deliberate resistance of some to the Court's mandates has impeded the good-faith efforts of others to bring school systems into compliance. The detail and nature of these dilatory tactics have been noted frequently by this Court and other courts.…
The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown II.…
If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.…
… [I]t is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.
School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.…
… The basis of our decision must be the prohibition of the Fourteenth Amendment that no State shall "deny to any person within its jurisdiction the equal protection of the laws."
We turn now to the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause.…
The central issue in this case is that of student assignment, and there are essentially four problem areas:
- to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system;
- whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation;
- what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and
- what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation.
(1) Racial Balances or Racial Quotas
The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems.…
Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.…
As the voluminous record in this case shows, the predicate for the District Court's use of the 71%-29% ratio was twofold: first, its express finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969; second, its finding, also approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans. As the statement of facts shows, these findings are abundantly supported by the record.…
We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances.… Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.
(2) One-race Schools
The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominately of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.
In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.…
(3) Remedial Altering of Attendance Zones
The maps submitted in these cases graphically demonstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank—and sometimes drastic—gerrymandering of school districts and attendance zones. An additional step was pairing, "clustering," or "grouping" of schools with attendance assignments made deliberately to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are neither compact nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court.…
We hold that the pairing and grouping of noncontiguous school zones is a permissible tool and such action is to be considered in light of the objectives sought. Judicial steps in shaping such zones going beyond combinations of contiguous areas should be examined in light of what is said in subdivisions (1), (2), and (3) of this opinion concerning the objectives to be sought. Maps do not tell the whole story since noncontiguous school zones may be more accessible to each other in terms of the critical travel time, because of traffic patterns and good highways, than schools geographically closer together. Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations.
(4) Transportation of Students
The scope of permissible transportation of students as an implement of a remedial decree has never been defined by this Court and by the very nature of the problem it cannot be defined with precision. No rigid guidelines as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation's public school children, approximately 39%, were transported to their schools by bus in 1969–1970 in all parts of the country.
The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case.…The Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer privileges. The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record.
Thus the remedial techniques used in the District Court's order were within that court's power to provide equitable relief; implementation of the decree is well within the capacity of the school authority.…
… In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school.
An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed.
… On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity.
At some point, these school authorities and others like them should have achieved full compliance with this Court's decision in Brown I. The systems would then be "unitary" in the sense required by our decisions in Green and Alexander.
It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.
Douglas, Davison M. School Busing: Constitutional and Political Developments. New York: Garland, 1994.
Galub, Arthur L. The Burger Court, 1968–1984. Danbury, Conn.: Grolier Educational Corporation, 1995.
Maltz, Earl M. The Chief Justiceship of Warren Burger, 1969–1986. Columbia: University of South Carolina Press, 2000.
Matney, Brian Keith. "Two Decades After Swann: A Qualitative Study of School Desegregation Efforts in Charlotte and Mecklenburg County, North Carolina." Ph.D. diss., University of North Carolina, Chapel Hill, 1992.
Schwartz, Bernard. Swann's Way: The School Busing Case and the Supreme Court. New York: Oxford University Press, 1986.
Detlefsen, Robert R. "Civil Rights, the Courts, and the Reagan Justice Department." Journal of Contemporary Studies 8, no. 2, Spring–Summer 1985, 91–115.
"Education." Legal Program, NAACP Legal Defense Fund. Available online at ; website home page: http://www.naacpldf.org/legalprogram/ (accessed April 16, 2003).
AUDIO AND VISUAL MEDIA
"Busing: Complying With Swann in 1976." Part of the CBS series Integration and Busing: The Earlier Years. Films for the Humanities and Sciences, 1976, VHS.