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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1970
SWANN ET AL. v. CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE^ FOURTH^ CIRCUIT
No. 281. Argued October 12, 1970-Decided April 20, 1971* The Charlotte-Mecklenburg school system, which includes the city of Charlotte, North Carolina, had more than 84,000 students in 107 schools in the 1968-1969 school year. Approximately 29% (24,000) of the pupils were Negro, about 14,000 of whom attended 21 schools that were at least 99% Negro.^ This^ resulted^ from a desegregation plan approved by the District Court in 1965, at the commencement of this^ litigation.^ In^^1968 petitioner^ Swann moved for further relief based on Green v. County School Board, 391 U. S. 430, which required school boards to "come forward with a plan that promises realistically to work... now.. .until it is. clear that state-imposed segregation has been completely re- moved." The District^ Court^ ordered^ the^ school^ board^ in^ April 1969 to provide a plan^ for^ faculty^ and^ student^ desegregation. Finding the^ board's^ submission^ unsatisfactory,^ the^ District^ Court appointed an expert to submit a desegregation plan. In February 1970, the expert and the board presented plans, and the court adopted the board's plan, as modified, for the^ junior^ and^ senior high schools, and the expert's proposed plan for the elementary schools. The Court of Appealt affirmed the District Court's order as to faculty desegregation and the secondary^ school^ plans, *Together with No. 349, Charlotte-MecklenburgBoard of Educa- tion et al. v. Swain et al., also on certiorari to the same court. 1
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Syllabus 402 U. S.
but (^) vacated the order respecting elementary schools, fearing that the provisions for pairing and grouping of elementary (^) schools would unreasonably (^) burden the pupils and the board. The case was remanded to the District Court for reconsideration and sub- mission of further plans. This Court granted certiorari and (^) di- rected reinstatement of the District (^) Court's order pending further proceedings in that court. On (^) remand the District Court received two new plans, and ordered the board to adopt a plan, (^) or the expert's plan (^) would remain in effect. After the board "acquiesced" in the expert's plan, the District (^) Court directed that it remain in effect. Held:
- Today's objective is to eliminate from the public schools (^) all vestiges of (^) state-imposed segregation that was held violative of equal protection guarantees by Brown v. Board of Education, 347 U. S. 483, (^) in 1954. P. 15.
- In default by the school (^) authorities of their affirmative obli- gation to proffer acceptable remedies, the district courts (^) have broad power to fashion remedies that will assure unitary school systems. P. (^) 16.
- Title IV (^) of the Civil Rights Act of 1964 does not restrict or withdraw from (^) the federal courts their historic equitable remedial powers. The proviso in 42 U. S. C. § 2000c-6 was designed simply to foreclose any interpretation of the (^) Act as expanding the existing powers of the federal courts to enforce (^) the Equal Protection Clause. Pp. 16-18.
- Policy and practice with regard to faculty, staff, transporta- tion, extracurricular activities, and facilities (^) are among the most important (^) indicia of a segregated .system, and the first remedial responsibility of school authorities is to eliminate (^) invidious racial distinctions in (^) those respects. Normal administrative practice should then produce schools of like quality; facilities, (^) and staffs. Pp. 18-19.
- The Constitution does not prohibit district courts from using their equity power to order assignment of teachers (^) to achieve a particular degree of faculty desegregation. United States v. Mont- gomery County Board of Education, 395 U. S. 225, was properly followed by the lower courts in this case. Pp. 19-20.
- In devising remedies to eliminate legally imposed segregation, local authorities and district courts must see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish (^) a dual system. Pp. 20-21.
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Syllabus 402 U.^ S.
- (^) Neither school authorities nor district courts are constitu- tionally required to make year-by-year adjustments of the racial composition of student bodies once a unitary system (^) has been achieved. Pp. 31-32. 431 F. (^) 2d 138, affirmed as to those parts in which it affirmed the District Court's judgment. The District Court's order of Au- gust 7, 1970, is also affirmed. BURGER, C. J., delivered the opinion for a unanimous Court.
Julius LeVonne Chambers and James M. Nabrit (^) III argued (^) the cause for petitioners in No. 281 and respond- ents in No. 349. With them on the briefs were (^) Jack Greenberg, (^) Norman J. Chachkin, C. 0. Pearson, and Anthony G. Amsterdam.
William (^) J. Wagonner and Benjamin S. Horack argued the cause and filed briefs for respondents in No. 281 and petitioners in No. 349. Sdlicitor General Griswold argued the cause for the United States as (^) amicus curiae in both cases. With him on the brief was (^) Assistant Attorney General Leonard. Briefs of amici curiae in No. 281 were filed by Earl Faircloth, Attorney General, Robert J. Kelly, Deputy Attorney General, Ronald W. Sabo, Assistant Attorney General, and Rivers Buford for the State (^) of Florida; by Andrew P. Miller, Attorney General, (^) William G. Broad- dus and Theodore J. Markow, Assistant Attorneys Gen- eral, Lewis F. Powell, Jr., John W. Riely, and Guy K. Tower for the Commonwealth of Virginia; by Claude R. Kirk, Jr., pro se, and (^) Gerald Mager for Claude R. Kirk, Jr., Governor of Florida; by (^) W. F. Womble for the Winston-Salem/Forsyth County Board of Education; by Raymond B. Witt, Jr., (^) and Eugene N. Collins for the Chattanooga Board of Education; (^) by Kenneth W. Cleary for the School Board of Manatee (^) County, Florida; by W. Crosby Few and John (^) M. Allison for the School Board of Hillsborough County, (^) Florida; by Sam J. Ervin,
SWANN v. BOARD OF EDUCATION
(^1) Opinion of the Court
Jr., Charles R. Jonas, and Ernest F. Hollings for the Classroom Teachers Association of the Charlotte- Meckleiburg School System, Inc.; by Mark Wells White,, Jr., for Mrs. (^) H. W. Cullen et al., members of the Board
of Education of the Houston Independent School Dis- trict; by Jack Petree for the Board of Education of Memphis City Schools; by Sherwood W. Wise for (^) the Jackson Chamber of Commerce, Inc., et al.; by Stephen J. (^) Pollak, Benjamin W. Boley, and David Rubin for the National Education Association; (^) by William L. Taylor, Richard (^) B. Sobol, and Joseph L. Rauh, Jr., for the United Negro College Fund, Inc., et al.; by Owen H. Page for Concerned Citizens (^) Association, Inc.; by Charles S. Conle, Floyd (^) B. McKissick, and Charles S. Scott for the Congress of Racial Equality; (^) by the Tennessee Fed- eration for Constitutional Government et (^) al.; by William C. Cramer. pro se, and Richard B. Peet, (^) joined by Albert W. Watson et al., for William C. Cramer; (^) by Charles E. Bennett, pro se, James C. Rinaman, Jr., and Yardley (^) D. Buckman for Charles E. Bennett; by Calvin H. Childress and M. T. Bohannon, Jr., for David E. Allgood (^) et al.; by William B. Spong, Jr., and by Newton Collier Estes.
MR. CHIEF JUSTICE BURGER (^) delivered the opinion of the Court. We granted certiorari in this case to review important issues as to the duties of school authorities and .the scope of powers (^) of federal courts under this Court's -mandates to eliminate (^) racially separate public schools established and maintained by state action. Brown v. Board (^) of Education, 347 U. S. 483 (1954) (Brown I). This case and those argued with (^) it' arose in States hav- ing a long history of maintaining two sets of schools in a
I McDaniel v. Barresi, No. 420, post, p. 39; Davis v. Board (^) of School Commissioners of Mobile County, No. 436, post, p. 33; Moore v. Charlotte-Mecklenburg Board of Education, No. 444, post,
SWANN v. BOARD OF^ EDUCATION
1 Opinion of the Court
June 1969 there were approximately 24,000 Negro stu- dents in the system, of whom 21,000 attended schools within the city of Charlotte. Two-thirds of those 21,000-approximately 14,000 Negro students-attended 21 schools which were either totally Negro or more than 99% Negro. This situation came about under a desegregation plan approved by the District Court at the commencement of the present litigation in 1965, 243 F. Supp. 667 (WDNC), aff'd, 369 F. 2d 29 (CA4 1966), based upon geographic zoning with a free-transfer provision. The present proceedings were initiated in September 1968 by petitioner Swann's motion for further relief based on Green v. County School Board, 391 U. S. 430 (1968), and its companion cases.' All parties now agree that in 1969 the system fell short of (^) achieving the unitary school system that those cases require. The (^) District Court held numerous hearings and re- ceived voluminous evidence. In addition to finding cer- tain actions of the school board to be discriminatory, the court also found that residential patterns in the city and county resulted in part from federal, state, and local government (^) action other than school board decisions. School board action based on these patterns, for example, by locating schools in Negro residential areas and fixing the size of the schools to accommodate the needs of im- mediate neighborhoods, resulted in segregated education. These findings were subsequently accepted by the Court of Appeals. In April 1969 the. District Court ordered the school board to come forward with a plan for both faculty and student desegregation. Proposed plans were accepted by the court in June and August 1969 on an interim basis
2 Raney v. Board of Education, 391 U. S. (^443) (1968), and Monroe v. Board of Commissioners, 391 U. S. 450 (1968).
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Opinion of the Court 402 U.^ S.
only, and the board was ordered to file a third plan by November 1969. In November the board moved for an extension of time until February 1970, but when that was denied the board submitted (^) a partially completed plan. In December (^1969) the District Court held that the board's submission was unacceptable and appointed an expert in education administration, (^) Dr. John Finger, to prepare a desegregation plan. Thereafter in Feb- ruary 1970, the District (^) Court was presented with two alternative pupil assignment plans--the finalized "board plan" and the "Finger plan." The Board Plan. As (^) finally submitted, the school board plan closed seven schools and reassigned their pupils. It restructured school attendance (^) zones to achieve greater racial balance but (^) maintained existing grade structures and rejected techniques (^) such as pairing and clustering as part of a desegregation (^) effort. The plan created a single athletic league, eliminated the pre- viously racial basis of the school bus (^) system, prbvided racially mixed (^) faculties and administrative staffs, and modified its ftee-t-ansfer plan into an optional majority- to-minority transfer system. The (^) board plan proposed substantial assignment of Negroes to nine of the system's 10 high (^) schools, produc- ing 17% to 36% Negro population (^) in each. The pro- jected Negro attendance at the 10th (^) school, Independence, was 2%. The proposed attendance (^) zones for the high schools were typically shaped like wedges of (^) a pie, extend- ing outward from the center of the city to the suburban and rural areas of the county in order to afford residents of the center city area access to outlying schools. As for junior high schools, the board plan (^) rezoned the 21 school areas so that in 20 the Negro attendance (^) would range from 0% to 38%. The other school, located in the heart of (^) the Negro residential area, was left with an enrollment of 90% Negro.
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Opinion of the Court 402 U. S.
be accomplished. However, unlike the board plan, it does not stop there. It goes further and desegre- gates all the rest of the elementary schools by the technique of grouping two or three outlying schools with one black inner city school; by transporting black students from grades one through four to the outlying white schools; and by transporting white students from the fifth and sixth grades from the outlying white schools to the inner city black school."
Under the Finger plan, (^) nine inner-city Negro schools were grouped (^) in this manner with 24 suburban white schools. On February 5, 1970, the District Court adopted, the board plan, as modified by Dr. Finger, for the junior and senior high schools. The (^) court rejected the board ele- mentary school (^) plan and adopted the Finger plan as presented. Implementa.tion was partially stayed by the Court of Appeals for the Fourth Circuit on March (^) 5, and this Court declined to disturb the Fourth Circuit's order, 397 U. S. 978 (1970). On appeal the Court of Appeals affirmed the District Court's order as to faculty desegregation and the second- ary school plans, but vacated the order respecting ele- mientary schools. While agreeing that the District Court properly disapproved the board plan concerning these schools, the Court of Appeals feared that the pairing and grouping of elementary schools would place an unrea- sonable burden on the board and the system's pupils. The case was remanded to the District Court for recon- sideration and submission of further-plans. 431 F. 2d
tions in pupil ratios. In default of any such plan from the school board, the court will start with the thought... that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others, but to understand that variations from that norm may be unavoidable." 306 F. Supp. 1299, 1312.
SWANN v. BOARD OF EDUCATION
(^1) Opinion of the Court
- This Court granted certiorari, 399 U. S. 926, (^) and directed reinstatement of the District (^) Court's order pend- ing further proceedings in that court. On (^) remand the District Court received two new plans for the elementary (^) schools: a plan prepared by the United States Department of (^) Health, Education, and Welfare (the HEW plan) (^) based on contiguous grouping and zoning of schools, and a plan prepared by four mem- bers of (^) the nine-member school board (the minority plan) achieving substantially (^) the same results as the Finger plan but apparently with slightly (^) less transportation. A majority of the school board (^) declined to amend its pro- posal. After a lengthy evidentiary hearing the (^) District Court concluded that its own plan (the Finger (^) plan), the minority plan, and an earlier draft of the Finger (^) plan were all reasonable and acceptable. (^) It directed the board to adopt one (^) of the three or in the alternative to come forward with a new, equally effective plan of its (^) own; the court ordered that the Finger plan would remain (^) in effect in the event the school board (^) declined to adopt a new plan. On August 7, the (^) board indicated it would "acquiesce" (^) in the (^) Finger plan, (^) reiterating its view (^) that the plan was unreasonable. (^) The District Court, by order dated August 7, 1970, directed that (^) the Finger plan re- main in effect.
II 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. None (^) of the parties before us challenges the (^) Court's decision of May 17, 1954, that "in the (^) field of public (^) education (^) the doctrine (^) of 'separate (^) but equal' (^) has no (^) place. Separate (^) educa- tional facilities are inherently (^) unequal. Therefore,
419-882 0 - 72 - 6
SWANN v. BOARD OF EDUCATION
Opinion of the Court
equity may properly take into account the public interest in the elimination (^) of such obstacles in a systematic and effective manner. But (^) it should go without saying that the vitality of these constitu- tional principles cannot be allowed to yield simply because of disagreement with them." Brown v. Board of Education, 349 U. (^) S. 294, 299-300 (1955). Over the 16 years since Brown (^) II, many difficulties were encountered in implementation of the basic (^) con- stitutional 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 compleidty encountered (^) since then. De- liberate 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. By the time the Court considered (^) Green v. County School Board, 391 U. S. 430, (^) in 1968, very little prog- ress had been made in many areas where dual school systems had historically (^) been maintained by operation of state laws. In Green, (^) the Court was confronted with a record of a freedom-of-choice (^) program that the District -Court had (^) found to operate in fact to pre- serve a dual system more than a decade after Brown II. While acknowledging that a freedom-of-choice (^) concept could be a valid remedial measure in some (^) circumstances, its (^) failure to be effective in Green required that:
"The burden on a school board today is to come for- ward with a plan that promises realistically (^) to work ... now ... until it is clear that state-imposed segregation has been completely removed." Green, supra, at 439.
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Opinion of the Court 402 U.^ S.
This was plain language, yet the 1969 Term of Court brought fresh- evidence of the dilatory (^) tactics of many school authorities. Alexander v. Holmes County Board of Education, 396 U. (^) S. 19, restated the basic obligation asserted in Griffin (^) v. School Board, 377 U. S. 218, 234 (1964), and Green, (^) supra, that the remedy must be im- plemented forthwith. The (^) problems encountered by the district courts and courts of appeals make plain that we should now try to amplify (^) guidelines, however incomplete and imperfect, for the assistance of school authorities and courts.' The failure (^) of local authorities to meet their constitutional obligations (^) aggravated the massive problem of convert- ing from the state-enforced (^) discrimination of racially separate school systems. (^) This process has been rendered more (^) difficult by changes since 1954 in the structure and patterns of communities, the growth of student (^) popula- tion,6 (^) movement of families, and other changes, some of which had marked impact on school (^) planning, some- times neutralizing (^) or negating remedial action before it was fully implemented. (^) Rural areas accustomed for half a (^) century to the consolidated school systems imple- mented by bus transportation (^) could make adjustments more (^) readily than metropolitan areas with dense and shifting population, numerous (^) schools, congested and complex (^) traffic patterns.
The necessity for this is suggested by the situation in the Fifth Circuit where 166 appeals in school desegregation cases were (^) heard between December 2, 1969, (^) and September 24, 1970. 6 Elementary public school (^) population (grades 1-6) (^) grew from 17,447,000 in 1954 to 23,103,000 (^) in 1969; secondary school popula- tion (beyond grade 6) grew from 11,183,000 in 1954 to 20,775,000 in
- Digest of Educational Statistics, Table 3, Office of Education Pub. 10024-64; Digest of Educational Statistics, Table 28, Office of Education (^) Pub. 10024-70.
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Opinion of^ the^ Court^402 U.^ S.
equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the in- dividual and collective interests, the condition that of- fends the Constitution. In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judi- cial 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 §chool authorities; ab- sent 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 de- termines 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 school authorities argue that the equity powers of federal district courts have been limited by Title IV of the Civil Rights Act of 1964, 42 U. S. C. § 2000c. The language and the history, of Title IV show that it was enacted not to limit but to define the role of the Federal Government in the implementation of the Brown I de- cision. It authorizes the Commissioner of Education to provide technical assistance to local boards in the prepara- tion of desegregation plans, to arrange "training insti-
SWANN v. BOARD OF EDUCATION
1 Opinion of the Court
tutes" for^ school^ personnel^ involved^ in^ desegregation efforts, and to make^ grants^ directly^ to^ schools^ to^ ease^ the transition to unitary. systems. It also authorizes the Attorney General, in specified circumstances, to initiate federal desegregation suits. Section 2000c (b) defines "desegregation" as it is used in Title IV: " 'Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but 'desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance."
Section 2000c-6, authorizing the Attorney General to in- stitute federal suits, contains the following proviso: "nothing herein (^) shall empower (^) any official (^) or court of the United States to issue any order seeking to achieve a racial balance^ in any^ school^ by^ requiring the transportation of pupils or students^ from^ one school to another or one school district to^ another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards." On their face, the sections quoted purport only to in- sure that the provisions of Title IV of the Civil Rights Act of 1964 will not be read as granting new powers. The proviso in § 2000c-6 is in terms designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers. The legislative history of Title IV indicates that Congress was concerned that^ the^ Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called "de facto segregation," where racial imbalance exists in the
SWANN v. BOARD OF EDUCATION
1 Opinion of the (^) Court
tive practice (^) should produce schools of like quality, facilities, and staffs. Something more must be said, however, as to faculty assignment and new school construction. In the companion Davis case, post, p. 33, the Mobile school board has argued that the Constitution requires that teachers be assigned on a "color blind" basis. It also argues that the Constitution prohibits district (^) courts from using their equity power to order assignment of teachers to achieve (^) a particular degree of faculty desegregation.
We reject that contention. In United States v. Montgomery County Board (^) of Education, (^) 395 U. S. 225 (1969), the District Court set as a goal a plan of faculty assignment (^) in each school with a ratio of white to Negro faculty members substantially the same throughout the system. This (^) order was predi- cated on the District Court finding that:
"The evidence does n, f reflect any real administra- tive problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, (^) and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing (^) with the school year 1968-69." Quoted at 395 U. S., at 232. The District Court in Montgomery then proceeded to set an initial ratio for the whole system of at least two Negro teachers out of each 12 in any given school. The Court of Appeals modified the order by eliminating (^) what it regarded as "fixed mathematical" ratios (^) of faculty and substituted an initial requirement of "substantially or approximately" a five-to-one ratio. With respect to the future, the Court of Appeals held that the numerical ratio should be eliminated and that compliance (^) should not be (^) tested solely by the achievement of specified pro- portions. Id., at 234.
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Opinion of the Court 402 U. S.
We reversed the Court of Appeals and restored the District Court's order in its entirety, holding that the order of the District Judge "was (^) adopted in (^) the spirit of (^) this Court's (^) opinion in Green... in that his plan 'promises realistically to work, and promises realistically to work now.' The modifications ordered by the panel of the Court of Appeals, while of course not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, (^) unitary, nondis- criminatory school system becomes a reality instead of a hope.... We also believe that under all the circumstances of this case we follow the original plan outlined in Brown II... by accepting the more specific and expeditious order of [District] Judge Johnson... ." 395 U. S., at 235-236 (emphasis in original). The principles of Montgomery have (^) been properly fol- lowed by the District Court (^) and the Court of Appeals in this case. The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composi- tion of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facili- ties, just as schools are located in response to the needs of people. The location of schools may thus influence
