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Preface

In its landmark decision in 1954 in Brown, the Supreme Court of the United States noted that "education is perhaps the most important function of state and local governments."1

It is required in the performance of our most basic responsibilities. . .it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him adjust normally to his environment.. it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.2

The Court ruled that State-mandated public school segregation on the basis of race is "inherently unequal" and therefore unconstitutional. This momentous decision not only outlawed the system of school segregation that had evolved in the United States, but it also provided the legal basis for attacking racial segregation in virtually every aspect of our society.

Since its creation in 1957, the U.S. Commission on Civil Rights has consistently viewed the Brown ruling as the most critical civil rights development in this century. The Commission continues to believe that no more important challenge faces the Nation than the elimination of all discrimination from our public schools. Accordingly, no civil rights issue has received greater attention, and the Commission has published numerous studies evaluating desegregation progress and problems during the past two decades.3

On the basis of information gathered during formal hearings, open meetings, case studies, a national survey, and other research conducted nationwide, the Commission published a major, comprehensive study entitled Fulfilling the Letter and Spirit of the Law: Desegregation of the Nation's Public Schools in August 1976. That study reported substan

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3 See, for example, U.S. Commission on Civil Rights, Racial Isolation in the Public Schools (1967); Five Communities: Their Search for Equal Education (1972); Your Child and Busing (1972); Inequality in School Financing: The Role of Law (1972); The Diminishing Barrier: A Report on School Desegregation in Nine Communities (1972); Title IV and School Desegregation: A Study of a Neglected Federal Program (1973); School Desegregation in Ten Communities (1973); Para Los Ninos For the Children (1974); Mexican

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tial progress in parental and student acceptance of desegregation, but it also noted that "much work remains to be done before equal educational opportunity becomes a reality."4 Many school districts, particularly large ones, remained segregated, and in some desegregated schools the Commission found disturbing patterns of discrimination against minority students in discipline and in class assignment policies.

The Commission has continued to monitor school desegregation since release of that study in 1976. In 1977 it published Statement on Metropolitan School Desegregation. In two annual reports, The State of Civil Rights (for 1976 and 1977), it again briefly evaluated the status of public school desegregation. The 1977 report noted growing acceptance of desegregation and improved conditions in schools in various communities. Effective desegregation in many localities remained a distant goal, however.5

This report is one of a series of studies prepared by the Commission's Office of National Civil Rights Issues to provide timely information of importance to those agencies and individuals responsible for ensuring that equal opportunity in all areas, including education, becomes a reality. This report examines school desegregation developments during the past 2 years in the three branches of the Federal Goverment-judicial, executive, and legislative.

The report includes an interpretation, developed by the Commission's Office of General Counsel, of the present position of the Supreme Court of the United States on legal requirements for school desegregation, a review of recent congressional legislation concerning public school desegregation, and a discussion of school desegregation enforcement activities of the Department of Health, Education, and Welfare (HEW). It also includes new data, gathered by HEW, on existing segregation by race and ethnicity in our public schools. Finally, the report contains brief reviews prepared by the American Education Study, six reports (1971-74); Desegregating the Boston Public Schools: A Crisis in Civic Responsibility (1975); Twenty Years After Brown, chap. 4 (1975); The Federal Civil Rights Enforcement Effort - 1974, vol. III, To Ensure Equal Educational Opportunity (1975); A Long Day's Journey into Light (1976).

U.S. Commission on Civil Rights, Fulfilling the Letter and Spirit of the Law (1976), p. ii.

5 U.S., Commission on Civil Rights, State of Civil Rights: 1977 (1978), pp. 78.

Commission's nine regional offices, of the current state of desegregation in 47 school districts nationwide and considers the status of metropolitan or interdistrict desegregation approaches in large urban areas characterized by predominantly minority city schools and primarily white suburban schools.

We believe that this latest study documents the need for a reinvigorated, determined, and positive effort by the executive and legislative branches of the Federal Government, as well as responsible State and local officials, to complete the constitutionally mandated task of desegregating the Nation's public schools/

Chapter 1

The Supreme Court and School Desegregation

"The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Thus reads section 1 of article III of the Constitution of the United States. It was the Supreme Court, in its 1954 Brown decision, that started the process of desegregating the Nation's public schools.

A brief recitation1 of the more important school desegregation decisions between 1954 and 1976 will assist in understanding the significance of the decisions of the last 2 years cited later in this section. Note that from Brown II (1955) to Jefferson County (1966) no decisions are cited. As one constitutional scholar put it, “during the entire period from 1955 until 1967-the Supreme Court decided few desegregation cases and provided little help for the lower

courts."2

Brown v. Board of Education (349 U.S. 294 (1955), popularly known as "Brown II," called for "good faith compliance" and "all deliberate speed" in carrying out the mandate of the 1954 decision.

U.S. v. Jefferson County Board of Education (372 F.2d 836, 847 (5th Cir. 1966)) found that "the only school desegregation plan that meets constitutional standards is one that works."

Green v. County School Board (391 U.S. 430 (1968)), rejected "freedom of choice" in school assignments because it failed to produce any significant desegregation and failed to remove racial identification of schools. It charged the school board 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

1 This summary of school desegregation cases is based upon "Court, Congress, and School Desegregation" by Robert B. McKay, director, Aspen Institute for Humanistic Studies, program on Justice, Society, and the Individual; he formerly was dean of the New York University School of Law. The article appeared in School Desegregation: The Courts and Suburban

and branch," by developing a plan which "promises realistically to work now." (Emphasis in original.)

Alexander v. Holmes County Board of Education (396 U.S. 19 (1969)) declared “all deliberate speed" no longer constitutionally permissible and said that "the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools."

Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1 (1971)) noted that Federal district courts had broad equitable powers "to eliminate from the public schools all vestiges of State-imposed segregation," and that these powers include the use of mathematical ratios as starting points in shaping remedies and the assignment of students according to race. It also upheld the lower court's order to bus children to accomplish desegregation. Two "companion" cases to Swann-Davis v. Board of School Commissions (402 U.S. 43 (1971)) and North Carolina State Board of Education v. Swann (402 U.S. 43 (1971))—strengthened the meaning of the original case. According to one commentator on constitutional law:

The Swann cases in effect hold that in many situations there will be no remedy for segregated schools other than busing. As the remedy becomes part of the right, any limitation on busing becomes a presumptive interference with the right to an integrated education. This merger of right and remedy is the main constitutional obstacle to antibusing legislation.3

Keyes v. School District No. 1 (413 U.S. 189 (1973)) upheld busing in Denver, the first time the Supreme Court had so held outside the South. The Court also held that a systemwide remedy is appropriate if it is

Migration published by the U.S. Commission on Civil Rights, 1976. For a fuller discussion of the cases, see pages 60-81.

2 Ibid., p. 63.

3 Ibid., p. 67.

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determined that "an intentionally segregative policy is practiced in a meaningful segment of a school system."

In Bradley v. School Board (412 U.S. 92 (1974)) an evenly divided Supreme Court let stand an appeals court reversal of a district court's order for metropolitan desegregation in Richmond, Virginia, and its suburbs.

Milliken v. Bradley (418 U.S. 717 (1974)) reversed an appeals court affirmation of a district court's order granting metropolitan relief to school segregation in Detroit. The Supreme Court, in a 5 to 4 decision, held that sufficient grounds of discrimination or segregation, based on State action or segregative intention by suburban officials, had not been established that would warrant the imposition of a metropolitan desegregation plan.

Hills v. Gautreaux (425 U.S. 248 (1976)), a case involving housing discrimination in Chicago, established the policy that metropolitan remedies are permissible under certain circumstances.

In late December 1976 and early 1977 the Supreme Court of the United States decided school desegregation cases in Austin, Indianapolis,5 Omaha, Milwaukee, and Dayton.8 These decisions and their subsequent interpretation by the lower courts have raised the question whether the Supreme Court is retreating from its long-espoused commitment to the right of school children to a desegregated education. To answer this question, it is first necessary to consider two cases, not involving school desegregation, upon which decisions in the above school cases are based, at least in part.

In June 1976 the Court ruled in Washington v. Davis, 9 an employment discrimination case, that for action by government officials to be held unconstitutional it must be shown to be intentionally discriminatory. An action which is racially neutral in intent, even if it has a discriminatory effect, is constitutionally permissible. This ruling was amplified in Village of Arlington Heights v. Metropolitan Housing Development Corporation, 10 a zoning case decided in January 1977, when the Court again said that proof

• Austin Independent School District v. U.S., 429 U.S. 990 (1976) [hereafter cited as Austin].

5 Board of School Commissioners v. U.S., 429 U.S. 1068 (1977) [hereafter cited as Board of School Commissioners].

• School District of Omaha v. U.S., 433 U.S. 667 (1977) [hereafter cited as School District of Omaha].

? Brennan v. Armstrong, 433 U.S. 672 (1977) [hereafter cited as Brennan v. Armstrong).

Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977) [hereafter cited as Dayton Board of Education v. Brinkman].

of a racially discriminatory intent or purpose is required to show a violation of the equal protection clause of the 14th amendment. The Court, recognizing that it is often difficult to ascertain legislative or administrative intent, spelled out the kinds of evidence to which it would look in determining whether official action was tainted with discriminatory purpose. Such evidence would include the historical background of the challenged action (whether it reveals a series of actions taken for discriminatory purposes); the sequence of events leading up to the action (whether there were departures from the normal procedural sequence); legislative or administrative history (contemporary statements by members of the decisionmaking body, minutes of meetings, reports); and the impact of the official action (whether another).

falls more heavily on one race than

In both Washington and Arlington Heights, the Court pointed out that although it had long required proof of discriminatory purpose as the factor distinguishing de jure from de facto segregation, the lower courts had not always strictly adhered to that requirement. Therefore, beginning with the Austin case, the Court began to clarify for the lower courts the application of the intent requirement of Washington and Arlington Heights in school desegregation

cases.

Development of the Intent
Requirement

In Austin Independent School District v. U.S., 11 the Supreme Court had before it the district court's remedial order, which had been upheld by the circuit court. Although the record was replete with evidence of intentional segregation, both the district court and the circuit court seemed to presume segregative intent from the school board's persistent use of a neighborhood assignment policy in a system with marked residential segregation. The Supreme Court vacated the circuit court's judgment and remanded the case for reconsideration in light of Washington. 12 Because the remand was without a majority opinion,

426 U.S. 229 (1976). In this case certain hiring practices of the District of Columbia Police Department were challenged as racially discriminatory in violation of the 14th amendment.

10 429 U.S. 252 (1977). This case involved a challenge to the failure of the village to rezone a tract of land on which the corporation wished to build racially integrated low- and moderate-income housing.

11 Austin Independent School District v. U.S., 429 U.S. 990 (1976).

12 The Arlington Heights decision had not yet been handed down when Austin was decided; therefore, it is the only one of five cases considered here that was not remanded for consideration in light of that case.

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