Columbus Board of Education v. Penick Slip Opinion

    (Slip Opinion)

NOTH: Where it is feasible, a syllabus (headnote) will be re­
leased, as is being done in connection with this case, at the time 
the opinion is issued. The syllabus constitutes no part of the opinion 
of the Court but has been prepared by the Reporter of Decisions for 
the convenience of the reader. See United States v. Detroit Lumber 
Oo.f 200 U.S. 321, 337.

SUPEEME COUBT OF THE UNITED STATES
Syllabus

COLUMBUS BOARD OF EDUCATION e t  a l . v . 

PENICK ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

No. 78-610. Argued April 24, 1979— Decided July 2, 1979

This class action was brought in 1973 by students in the Columbus, Ohio, 
school system, charging that the Columbus Board of Education (Board) 
and its officials had pursued and were pursuing a course of conduct 
having the purpose and effect of causing and perpetuating racial segre­
gation in the public schools, contrary to the Fourteenth Amendment. 
The case was ultimately tried in April-June 1976, final arguments were 
heard in September 1976, and in March 1977 the District Court filed 
an opinion and order containing its findings of fact and conclusions of 
law. It found (1) that in 1954, when Brown v. Board of Education, 
347 IT. S. 483 (Brown I ),  was decided, the Board was not operating a 
racially neutral unitary school system, but was conducting “ an enclave 
of separate, black schools on the near east side of Columbus” and that 
this was “ the direct result of cognitive acts or omissions of those school 
board members and administrators who had originally intentionally 
caused and later perpetuated the racial isolation” ; (2) that since the 
decision in Brown v. Board of Education, 349 U. S, 294 (Brown II),  the 
Board had been under a continuous constitutional obligation to disestab­
lish its dual system and that it has failed to discharge this duty; and 
(3) that in the intervening years since 1954 there had been a series of 
Board actions and practices that could not “ reasonably be explained 
without reference to racial concerns” and that “ intentionally aggravated, 
rather than alleviated,”  racial separation in the schools. Ultimately con­
cluding that at the time of trial the racial segregation in the Columbus 
school system “ directly resulted from [the Board’s] intentional segrega­
tive acts and omissions,” in violation of the Equal Protection Clause of 
the Fourteenth Amendment, the court, accordingly, enjoined the defend­
ants from continuing to discriminate on the basis of race in operating the 
public schools and ordered the submission of a systemwide desegregation

I



II COLUMBUS BOARD OF EDUCATION v. PENICK

Syllabus

plan. Subsequently, following the decision in Dayton Board of Educa­
tion v. Brinkman, 433 U. S. 406 (Dayton I ), the District Court rejected 
the Board’s argument that that decision required or permitted modifica­
tion of the court’s finding or judgment. Based on its examination of the 
record, the Court of Appeals affirmed the judgments against the 
defendants.

Held:
1. On the record, there is no apparent reason to disturb the findings 

and conclusions of the District Court, affirmed by the Court of Appeals, 
that the Board’s conduct at the time of trial and before not only was 
animated by an unconstitutional, segregative purpose, but also had cur­
rent segregative impact that was sufficiently systemwide to warrant the 
remedy ordered by the District Court. Pp. 4-11.

(a) Proof of purposeful and effective maintenance of a body of 
separate black schools in a substantial part of the system is itself prima 
facie proof of a dual system and supports a finding to this effect absent 
sufficient contrary proof by the Board, which was not forthcoming in 
this case. Pp. 5-6.

(b) The Board’s continuing affirmative duty to disestablish the 
dual school system, mandated by Brown II, is beyond question, and 
there is nothing in the record to show that at the time of trial the dual 
school system in Columbus and its effects had been disestablished. Pp. 
6-9.

2. There is no indication that the judgments below rested on any 
misapprehension of the controlling law. Pp. 12-16.

(a) Where it appears that the District Court, while recognizing 
that disparate impact and foreseeable consequences, without more, do 
not establish a constitutional violation, correctly noted that actions 
having foreseeable and anticipated disparate impact are relevant evidence 
to prove the ultimate fact of a forbidden purpose, the court stayed 
well within the requirements of Washington v. Davis, 426 U. S. 229, and 
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 
that a plaintiff seeking to make out an equal protection violation on the 
basis of racial discrimination must show purpose. Pp. 12-13.

(b) Where the District Court repeatedly emphasized that it had 
found purposefully segregative practices with current, systemwide 
impact, there was no failure to observe the requirements of Dayton I, 
that the remedy imposed by a court of equity should be commensurate 
with the violation ascertained. Pp. 13-15.

(c) Nor was there any misuse of Keyes v. School Dist. No. 1, 413 
U. S. 189, where it was held that purposeful discrimination in a sub­
stantial part of a school system furnishes a sufficient basis for an infer-



COLUMBUS BOARD OF EDUCATION v. PENICK hi

Syllabus

ential finding of a systemwide discriminatory intent unless otherwise 
rebutted and that given the purpose to operate a dual school system 
one could infer a connection between such purpose and racial separation 
in other parts of the school system. Pp. 15-16.

583 F. 2d 787, affirmed.

W hite , J., delivered the opinion of the Court, in which B rennan , 
M arshall, Blackm un , and Stevens, JJ., joined. Burger, C. J., filed an 
opinion concurring in the judgment. Stewart, J., filed an opinion con­
curring in the judgment, in which Burger, C. J., joined. Powell, J., filed 
a dissenting opinion. R ehnquist, J., filed a dissenting opinion, in which 
Powell, J., joined.



NOTICE : This opinion is subject to formal revision before publication 
in the preliminary print of the United States Reports. Readers are re­
quested to notify the Reporter of Decisions, Supreme Court of the 
United States, Washington, D.C. 20543, of any typographical or other 
formal errors, in order that corrections may be made before the pre­
liminary print goes to press.

SUPKEME COURT OF THE UNITED STATES

M r. Justice W hite delivered the opinion of the Court.
The public schools of Columbus, Ohio, axe highly segregated 

by race. In 1976, over 32% of the 96,000 students in the sys­
tem were black. About 70% of all students attended schools 
that were at least 80% black or 80% white. 429 F. Supp. 229, 
240 (SD Ohio 1977). Half of the 172 schools were 90% 
black or 90% white. 583 F. 2d 787, 800 (CA6 1978). Four­
teen named students in the Columbus school system brought 
this case on June 21, 1973, against the Columbus Board of 
Education, the State Board of Education, and the appropriate 
local and state officials.1 The second amended complaint, 
filed on October 24, 1974, charged that the Columbus defend­
ants had pursued and were pursuing a course of conduct hav­
ing the purpose and effect of causing and perpetuating the 
segregation in the public schools, contrary to the Fourteenth 
Amendment. A declaratory judgment to this effect and 
appropriate injunctive relief were prayed. Trial of the case 
began a year later, consumed 36 trial days, produced a record 
containing over 600 exhibits and a transcript in excess of 6,600 
pages, and was completed in June 1976. Final arguments 1

1 A similar group of plaintiffs was allowed to intervene, and the original 
plaintiffs were allowed to file an amended complaint that was certified as a 
class action. 429 F. Supp. 229, 233-234 (SD Ohio 1977); App. 50.

No. 78-610

Columbus Board of Education
On Writ o f Certiorari to the 

United States Court of Ap­
peals for the Sixth Circuit.

et al., Petitioners,
v.

Gary L. Penick et al.

[July 2, 1979]



2 COLUMBUS BOARD OF EDUCATION v. PENICK

were heard in September, and in March 1977 the District 
Court filed an opinion and order containing its findings of 
fact and conclusions of law. 429 F. Supp. 229.

The trial court summarized its findings:
“From the evidence adduced at trial, the Court has 

found earlier in this opinion that the Columbus Public 
Schools were openly and intentionally segregated on the 
basis of race when Brown [v. Board of Education ( / ) ,  
347 U. S. 483,] was decided in 1954. The Court has 
found that the Columbus Board of Education never ac­
tively set out to dismantle this dual system. The Court 
has found that until legal action was initiated by the 
Columbus Area Civil Rights Council, the Columbus 
Board did not assign teachers and administrators to Co­
lumbus schools at random, without regard for the racial 
composition of the student enrollment at those schools. 
The Columbus Board even in very recent times . . . has ap­
proved optional attendance zones, discontiguous attend­
ance areas and boundary changes which have maintained 
and enhanced racial imbalance in the Columbus Public 
Schools. The Board, even in very recent times and after 
promising to do otherwise, has adjured [sic] workable sug­
gestions for improving the racial balance of city schools.

“ Viewed in the context of segregative optional attend­
ance zones, segregative faculty and administrative hiring 
and assignments, and other such actions and decisions of 
the Columbus Board of Education in recent and remote 
history, it is fair and reasonable to draw an inference of 
segregative intent from the Board’s actions and omission 
discussed in this opinion.” Id., at 260-261.

The District Court’s ultimate conclusion was that at the 
time of trial the racial segregation in the Columbus school 
system “ directly resulted from [the Board’s] intentional segre­
gative acts and omissions,”  id., at 259, in violation of the 
Equal Protection Clause of the Fourteenth Amendment. Ac­



cordingly, judgment was entered against the local and state 
defendants enjoining them from continuing to discriminate on 
the basis of race in operating the Columbus public schools and 
ordering the submission of a systemwide desegregation plan.

Following decision by this Court in Dayton Board of Educa­
tion v. Brinkman ( / ) ,  433 U. S. 406, in June 1977, and in 
response to a motion by the Columbus Board, the District 
Court rejected the argument that Dayton I required or per­
mitted any modification of its findings or judgment. It reiter­
ated its conclusion that the Board’s “ ‘liability in this case 
concerns the Columbus School District as a whole,’ ” Pet. App. 
94, quoting 429 F. Supp., at 266, asserting that, although it 
had “ no real interest in any remedy plan which is more sweep­
ing than necessary to correct the constitutional wrongs plain­
tiffs have suffered,” neither would it accept any plan “ which 
fails to take into account the systemwide nature of the liabil­
ity of the defendants.” Pet. App. 95. The Board subse­
quently presented a plan that complied with the District 
Court’s guidelines and that was embodied in a judgment en­
tered on October 7. The plan was stayed pending appeal to 
the Court of Appeals.

Based on its own examination of the extensive record, the 
Court of Appeals affirmed the judgments entered against the 
local defendants.2 583 F. 2d 787. The Court of Appeals 
could not find the District Court’s findings of fact clearly 
erroneous. Id., at 789. Indeed, the Court of Appeals exam­
ined in detail each set of findings by the District Court and 
found strong support for them in the record. Id., at 798, 804, 
805, 814. The Court of Appeals also discussed in detail and 
found unexceptionable the District Court’s understanding and 
application of the Fourteenth Amendment and the cases con­
struing it.

2 The Court of Appeals vacated the judgment against the state defend­
ants and remanded for further proceedings regarding those parties. 583 
F. 2d 787, 815-818 (CA6 1978). No issue with respect to the state 
defendants is before us now.

COLUMBUS BOARD OF EDUCATION v. PENICK 3



4 COLUMBUS BOARD OF EDUCATION v. PENICK

Implementation of the desegregation plan was stayed pend­
ing our disposition of the case. -----U. S .------(1978) (R ehn -
qtjist, J.). We granted the Board’s petition for certiorari,
---- - U. S . ----- (1979), and we now affirm the judgment of the
Court of Appeals.

II
The Board earnestly contends that when this case was 

brought and at the time of trial its operation of a segregated 
school system was not done with any general or specific 
racially discriminatory purpose, and that whatever unconsti­
tutional conduct it may have been guilty of in the past such 
conduct at no time had systemwide segregative impact and 
surely no remaining systemwide impact at the time of trial. 
A systemwide remedy was therefore contrary to the teachings 
of the cases, such as Dayton I, that the scope of the constitu­
tional violation measures the scope of the remedy.3

We have discovered no reason, however, to disturb the judg­
ment of the Court of Appeals, based on the findings and con­
clusions of the District Court, that the Board’s conduct at 
the time of trial and before not only was animated by an un­
constitutional, segregative purpose, but also had current, segre­
gative impact that was sufficiently systemwide to warrant the 
remedy ordered by the District Court.

These ultimate conclusions were rooted in a series of con­
stitutional violations that the District Court found the Board 
to have commited and that together dictated its judgment and 
decree. In each instance, the Court of Appeals found the 
District Court’s conclusions to be factually and legally sound.

3 Petitioners also argue that the District Court erred in requiring that 
every school in the system be brought roughly within proportionate racial 
balance. We see no misuse of mathematical ratios under our decision 
in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 22-25 
(1971), especially in light of the Board’s failure to justify the continued 
existence of “some schools that are all or predominantly of one race. . . 
Id., at 26; see Pet. App. 102-103. Petitioners do not otherwise question 
the remedy if a systemwide violation was properly found.



COLUMBUS BOARD OF EDUCATION v. PENICK 5

A
First, although at least since 1888 there had been no statu­

tory requirement or authorization to operate segregated 
schools,4 the District Court found that in 1954, when Brown I 
was decided, the Columbus Board was not operating a racially 
neutral, unitary school system, but was conducting “an en­
clave of separate, black schools on the near east side of Co­
lumbus,” and that “ [t]he then-existing racial separation was 
the direct result of cognitive acts or omissions of those school 
board members and administrators who had originally inten­
tionally caused and later perpetuated the racial isolation. . . 
429 F. Supp., at 236. Such separateness could not “be said to 
have been the result of racially neutral official acts.” Ibid.

Based on its own examination of the record, the Court of 
Appeals agreed with the District Court in this respect, observ­
ing that, “ [wjhile the Columbus school system’s dual black- 
white character was not mandated by "state law as of 1954, the 
record certainly shows intentional segregation by the Colum­
bus Board. As of 1954 the Columbus School Board had 
‘carried out a systematic program of segregation affecting a

4 In 1871, pursuant to the requirements of state law, Columbus main­
tained a complete separation of the races in the public schools. 429 F. 
Supp., at 234-235. The Ohio Supreme Court ruled in 1888 that state law 
no longer required or permitted the segregation of school children. Board 
of Education v. State, 45 Ohio St. 555. Even prior to that, in 1881, the 
Columbus Board abolished its separate schools for black and white students, 
but by the end of the first decade of this century it had returned to a 
segregated school policy. Champion Avenue School was built in 1909 in a 
predominantly black area and was completely staffed with black teachers. 
Other black schools were established as the black population grew. The 
Board gerrymandered attendance zones so that white students who lived 
near these schools were assigned to or could attend white schools, which 
often were further from their homes. By 1943 a total of five schools had 
almost exclusively black student bodies, and each was assigned an all-black 
faculty, often through all-white to all-black faculty transfers that occurred 
each time the Board came to consider a particular school as a black school. 
Id., at 234-236.



6 COLUMBUS BOARD OF EDUCATION v. PENICK

substantial portion of the students, schools, teachers and facili­
ties within the school system.’ ” 583 F. 2d, at 798-799, quot­
ing Keyes v. School Dist. No. 1, 413 U. S. 189, 201-202 (1973).

The Board insists that, since segregated schooling was not 
commanded by state law and since not all schools were wholly 
black or wholly white in 1954, the District Court was not war­
ranted in finding a dual system.5 But the District Court found 
that the “ Columbus Public Schools were officially segregated 
by race in 1954,” Pet. App. 94 (emphasis added); 6 and in any

5 Both our dissenting Brethren and the separate concurrence put great 
weight on the absence of a statutory mandate or authorization to discrimi­
nate, but the Equal Protection Clause was aimed at all official actions, not 
just those of state legisuatures. “ [N ]o agency of the State, or of the offi­
cers or agents by whom its powers are exerted, shall deny to any person 
within its jurisdiction the equal protection of the laws. Whoever, by vir­
tue of public position under a State government, . . . denies or takes away 
the equal protection of the laws . . . violates the constitutional inhibition; 
and 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.”  Ex parte Virginia, 100 U. S. 339, 347 
(1880). Thus, in Yick Wo v. Hopkins, 118 U. S. 356 (1886), the discrimi­
natory application of an ordinance fair on its face was found to be uncon­
stitutional state action. Even actions of state agents that may be illegal 
under state law are attributable to the State. United States v. Price, 383 
U. S. 787 (1966); Screws v. United States, 325 U. S. 91 (1945). Our de­
cision in Keyes v. School Dist. No. 1, 413 U. S. 189 (1973), plainly demon­
strates in the educational context that there is no magical difference be­
tween segregated schools mandated by statute and those that result from 
local segregative acts and policies. The presence of a statute or ordinance 
commanding separation of the races would ease the plaintiff’s problems of 
proof, but here the District Court found that the local officials, by their 
conduct and policies, had maintained a dual school system in violation of 
the Fourteenth Amendment. The Court of Appeals agreed, and we fail to 
see why there should be a lesser constitutional duty to eliminate that sys­
tem than there would have been had the system been ordained by law.

6 The dissenters in this case claim a better grasp of the historical and 
ultimate facts than the two courts below had. But on the issue of whether 
there was a dual school system in Columbus, Ohio, in 1954, on the record 
before us we are much more impressed by the views of the judges who 
have lived with the case over the years. Also, our dissenting Brothers’



COLUMBUS BOARD OF EDUCATION v. PENICK 7

event, there is no reason to question the finding that as the 
“ direct result of cognitive acts or omissions” the Board main­
tained “ an enclave of separate, black schools on the near 
east side of Columbus.” 429 F. Supp., at 236. Proof of pur­
poseful and effective maintenance of a body of separate black 
schools in a substantial part of the system itself is prima facie 
proof of a dual school system and supports a finding to this 
effect absent sufficient contrary proof by the Board, which was 
not forthcoming in this case. Keyes, supra, at 203.7

B
Second, both courts below declared that since the decision 

in Brown v. Board of Education (II),  349 U. S. 294 (1955), 
the Columbus Board has been under a continuous constitu­
tional obligation to disestablish its dual school system and 
that it has failed to discharge this duty. Pet. App. 94; 583 
F. 2d, at 799. Under the Fourteenth Amendment and the 
cases that have construed it, the Board’s duty to dismantle its 
dual system cannot be gainsaid.

suggestion that this Court should play a special oversight role in reviewing 
the factual determinations of the lower courts in school desegregation cases,
post, at ----- (Rehnqtjist, J., dissenting), asserts an omnipotence and
omniscience that we do not have and should not claim.

7 It is argued that Dayton Board of Education v. Brinkman ( / ) ,  433 
U. S. 406 (1977), implicitly overruled or limited those portions of Keyes 
and Swann approving, in certain circumstances, inferences of general, sys­
temwide purpose and current, systemwide impact from evidence of dis­
criminatory purpose that has resulted in substantial current segregation, 
and approving a systemwide remedy absent a showing by the defendant 
of what part of the current imbalance was not caused by the constitutional 
breach. Dayton I  does not purport to disturb any aspect of Keyes and 
Swann; indeed, it cites both cases with approval. On the facts found by 
the District Court and affirmed by the Court of Appeals at the time Day- 
ton first came before us, there were only isolated instances of intentional 
segregation, which were insufficient to give rise to an inference of system- 
wide institutional purpose and which did not add up to a facially substan­
tial systemwide impact. Dayton Board of Education v. Brinkman (II),  
post, a t ---- .



COLUMBUS BOARD OF EDUCATION v. PENICK

Where a racially discriminatory school system has been 
found to exist, Brown II  imposes the duty on local school 
boards to “ effectuate a transition to a racially non-discrimina- 
tory school system.” 349 U. S., at 301. “ Brown II  was a call 
for the dismantling of well-entrenched dual systems,”  and 
school boards operating such systems were “ clearly charged 
with the affirmative duty to take whatever steps might be 
necessary to convert to a unitary system in which racial dis­
crimination would be eliminated root and branch.” Green v. 
County School Board, 391 U. S. 430, 437-438 (1968). Each 
instance of a failure or refusal to fulfill this affirmative duty 
continues the violation of the Fourteenth Amendment. Day- 
ton I, 433 U. S., at 413-414; Wright v. Council of City of 
Emporia, 407 U. S. 451, 460 (1972) ; United States v. Scotland 
Neck City Board of Education, 407 U. S. 484 (creation of a 
new school district in a city that had operated a dual school 
system but was not yet the subject of court-ordered 
desegregation).

The Green case itself was decided 13 years after Brown II. 
The core of the holding was that the school board involved 
had not done enough to eradicate the lingering consequences 
of the dual school system that it had been operating at. the 
time Brown was decided. Even though a freedom of choice 
plan had been adopted, the school system remained essentially 
a segregated system, with many all-black and many all-white 
schools. The board’s continuing obligation, which had not 
been satisfied, was “ ‘to come forward with a plan that prom­
ises realistically to work . . . now . . . until it is clear that state- 
imposed segregation has been completely removed.’ ”  Swann 
v. Charlotte-Mecklenburg Board of Education, 402 IT. S. 1, 
13 (1971), quoting Green, supra, at 439 (emphasis in original).

As T he Chief Justice’s opinion for a unanimous Court 
in Swann recognized, Brown and Green imposed an affirmative 
duty to desegregate. “ If school authorities fail in their affirm­
ative obligations under those holdings, judicial authority may



be invoked. . . .  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.” 402 U. S., at 15-16. In Swann, it should be 
recalled, an initial segregation plan had been entered in 1965 
and had been affirmed on appeal. But the case was reopened, 
and in 1969 the school board was required to come forth with 
a more effective plan. The judgment adopting the ultimate 
plan was affirmed here in 1971, 16 years after Brown II.

In determining whether a dual school system has been dis­
established, Swann also mandates that matters aside from 
student assignments must be considered:

“ [Wjhere it is possible to identify a 'white school’ or a 
‘Negro school’ simply by reference to the racial composi­
tion of teachers and staff, the quality of school buildings 
and equipment, or the organization of sports activities, a 
prima jade case of violation of substantive constitutional 
rights under the Equal Protection Clause is shown.” 402 
U. S., at 18.

Further, Swann stated that in devising remedies for legally 
imposed segregation the responsibility of the local authorities 
and district courts is to ensure that future school construction 
and abandonment are not used and do not serve to perpetuate 
or re-establish the dual school system. Id., at 20-21. As for 
student assignments, the Court said:

“ No per se rule can adequately embrace all the difficul­
ties 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 war­
rants 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

COLUMBUS BOARD OF EDUCATION v. PENICK 9



10 COLUMBUS BOARD OF EDUCATION v. PENICK

existence of some schools that are all or predominantly 
of one race, they have the burden of showing that such 
school assignments are genuinely nondiscriminatory.” 
Id., at 26.

The Board’s continuing “ affirmative duty to disestablish 
the dual school system” is therefore beyond question, M c­
Daniel v. Barred, 402 U. S. 39, 41 (1971), and it has pointed to 
nothing in the record persuading us that at the time of trial 
the dual school system and its effects had been disestablished. 
The Board does not appear to challenge the finding of the 
District Court that at the time of trial most blacks were still 
going to black schools and most whites to white schools. 
Whatever the Board’s current purpose with respect to racially 
separate education might be, it knowingly continued its fail­
ure to eliminate the consequences of its past intentionally 
segregative policies. The Board “ never actively set out to dis­
mantle this dual system.”  429 F. Supp., at 260.

C
Third, the District Court not only found that the Board had 

breached its constitutional duty by failing effectively to elimi­
nate the continuing consequences of its intentional systemwide 
segregation in 1954, but also found that in the intervening 
years there had been a series of Board actions and practices 
that could not “ reasonably be explained without reference 
to racial concerns,”  id., at 241, and that “ intentionally ag­
gravated, rather than alleviated,” racial separation in the 
schools. Pet. App. 94. These matters included the general 
practice of assigning black teachers only to those schools with 
substantial black student populations, a practice that was ter­
minated only in 1974 as the result of a conciliation agreement 
with the Ohio Civil Rights Commission; the intentionally 
segregative use of optional attendance zones,8 discontiguous

8 Despite petitioners’ avowedly strong preference for neighborhood 
schools, in times of residential racial transition the Board created optional



COLUMBUS BOARD OF EDUCATION v. PENICK 11

attendance areas,9 and boundary changes; 10 11 and the selection 
of sites for new school construction that had the foreseeable 
and anticipated effect of maintaining the racial separation of 
the schools.11 The court generally noted that “ [s]ince the

attendance zones to allow white students to avoid predominantly black 
schools, which were often closer to the homes of the white pupils. For 
example, until well after the time the complaint was filed, petitioners 
allowed students “ in a small, white enclave on Columbus’ predominantly 
black near-east side . . .  to escape attendance at black”  schools. 429 F. 
Supp., at 244. The court could perceive no raeially-neutral reasons for 
this optional zone. Id., at 245. “ Quite frankly, the Near-Bexley Option 
appears to this Court to be a classic example of a segregative device de­
signed to permit white students to escape attendance at predominantly 
black schools.” Ibid.

9 This technique was applied when neighborhood schools would have 
tended to desegregate the involved schools. In the 1960s, a group of 
white students were bused past their neighborhood school to a “whiter” 
school. The District Court could “ discern ho other explanation than a 
racial one for the existence of the Moler discontinuous attendance area 
for the period 1963 through 1969.” Id., at 247. From 1957 until 1963 
students living in a predominantly white area near Heimandale elementary 
school attended a more remote, but identifiably white, school. Id., at 247- 
248.

10 Gerrymandering of boundary lines also continued after 1954. The 
District Court found, for instance, that for one area on the west side of 
the city containing three white schools and one black school the Board had 
altered the lines so that white residential areas were removed from the 
black school’s zone and black students were contained within that zone. 
Id., at 245-247. The Court found that the segregative choice of lines was 
not justified “as a matter of academic administration”  and “had a sub­
stantial and continuing segregative impact upon these four west side 
schools.” Id., at 247.

Another example involved the former Mifflin district that had been 
absorbed into the Columbus district. The Board staff presented two alter­
native means of drawing necessary attendance zones: one that was desegre- 
gative and one that was segregative. The Board chose the segregative 
option, and the District Court was unpersuaded that it had any legitimate 
educational reasons for doing so. Id., at 248-250.

11 The District Court found that, of the 103 schools built by the Board 
between 1950 and 1975, 87 opened with racially identifiable student bodies



12 COLUMBUS BOARD OF EDUCATION v. PENICK

1954 Brown decision, the Columbus defendants or their prede­
cessors were adequately put on notice of the fact that action 
was required to correct and to prevent the increase in” segre­
gation, yet failed to heed their duty to alleviate racial separa­
tion in the schools, 429 F. Supp., at 255.12

and 71 remained that way at the time of trial. This result was reasonably 
foreseeable under the circumstances in light of the sites selected, and the 
Board was often specifically warned that it was, without apparent Justifi­
cation, choosing sites that would maintain or further segregation. Id., at 
241-243. As the Court of Appeals noted:
“ [T]his record actually requires no reliance upon inference, since, as indi­
cated above, it contains repeated instances where the Columbus Board was 
warned of the segregative effect of proposed site choices, and was urged to 
consider alternatives which could have had an integrative effect. In these 
instances the Columbus Board chose the segregative sites. In this situa­
tion the District Judge was justified in relying in part on the history of 
the Columbus Board’s site choices and construction program in finding 
deliberate and unconstitutional systemwide segregation.” 583 F. 2d, at 
804.

12 Local community and civil rights groups, the “ Ohio State University 
Advisory Commission on Problems Facing the Columbus Public Schools, 
and officials of the Ohio State Board of Education all called attention to 
the problem [of segregation] and made certain curative instructions.”  429 
F. Supp., at 255. This was particularly important because the Columbus 
system grew rapidly in terms of geography and number of students, creat­
ing many crossroads where the Board could either turn toward segrega­
tion or away from it. See id., at 243. Specifically, for example, the Uni­
versity Commission in 1968 made certain recommendations that it thought 
not only would assist desegregation of the schools but would encourage 
integrated residential patterns. Id., at 256. The Board itself came to 
similar conclusions about what could be done, but its response was “mini­
mal.” Ibid. See also id., at 264. Additionally, the Board refused to cre­
ate a site selection advisory group to assist in avoiding sites with a segre­
gative effect, refused to ask state education officials to present plans for 
desegregating the Columbus public schools, and refused to apply for federal 
desgregation-assistance funds. Id., at 257; see id., at 239. The District 
Court drew “the inference of segregative intent from the Columbus de­
fendants’ failures, after notice, to consider predictable racial consequences



COLUMBUS BOARD OF EDUCATION v. PENICK 13

III
Against this background, we cannot fault the conclusion of 

the District Court and the Court of Appeals that at the time 
of trial there was systemwide segregation in the Columbus 
schools that was the result of recent and remote intention­
ally segregative actions of the Columbus Board. While ap­
pearing not to challenge most of the subsidiary findings of 
historical fact, Tr. of Oral Arg., at 7, petitioners dispute many 
of the factual inferences drawn from these facts by the two 
courts below. On this record, however, there is no apparent 
reason to disturb the factual findings and conclusions entered 
by the District Court and strongly affirmed by the Court of 
Appeals after its own examination of the record.

Nor do we discern that the judgments entered below rested 
on any misapprehension of the controlling law. It is urged 
that the courts below failed to heed the requirements of Keyes, 
Washington v. Davis, 426 U. S. 229 (1976), and Village of 
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 
U. S. 252 (1977), that a plaintiff seeking to make out an equal 
protection violation on the basis of racial discrimination must 
show purpose. Both courts, it is argued, considered the re­
quirement satisfied if it were shown that disparate impact 
would be the natural and foreseeable consequence of the 
practices and policies of the Board, which, it is said, is nothing 
more than equating impact with intent, contrary to the con­
trolling precedent.

The District Court, however, was amply cognizant of the 
controlling cases. It is understood that to prevail the plain­
tiffs were required to “  ‘prove not only that segregated school­
ing exists but also that it was brought about or maintained by 
intentional state action,’ ” 429 F. Supp., at 251, quoting Keyes, 
supra, at 198— that is, that the school officials had “ intended

of their acts and omissions when alternatives were available which would 
have eliminated or lessened racial imbalance.”  Id., at 240.



14 COLUMBUS BOARD OF EDUCATION v. PENICK

to segregate.” 429 F. Supp., at 254. See also 583 F, 2d, at 
801. The District Court also recognized that under those 
cases disparate impact and foreseeable consequences, without 
more, do not establish a constitutional violation. See, e. g., 429 
F. Supp., at 251. Nevertheless, the District Court correctly- 
noted that actions having foreseeable and anticipated disparate 
impact are relevant evidence to prove the ultimate fact, for­
bidden purpose. Those cases do not forbid “ the foreseeable 
effects standard from being utilized as one of the several kinds 
of proofs from which an inference of segregative intent may 
be properly drawn.” Id., at 255. Adherence to a particular 
policy or practice, “ with full knowledge of the predictable 
effects of such adherence upon racial imbalance in a school 
system is one factor among many others which may be con­
sidered by a court in determining whether an inference of 
segregative intent should be drawn.” Ibid. The District 
Court thus stayed well within the requirements of Washington 
v. Davis and Arlington Heights. See Personnel Administrator 
of Massachusetts v. F eeney,-----IT. S .------, -----n. 25 (1979).

It is also urged that the District Court and the Court of 
Appeals failed to observe the requirements of our recent deci­
sion in Dayton I, which reiterated the accepted rule that the 
remedy imposed by a court of equity should be commensurate 
with the violation ascertained, and held that the remedy for 
the violations that had then been established in that case 
should be aimed at rectifying the “ incremental segregative 
effect” of the discriminatory acts identified.13 In Dayton I,

13 Petitioners have indicated that a few of the recent violations specifi­
cally discussed by the District Court involved so few students and lasted 
for such a short time that they are unlikely to have any current impact. 
But that contention says little or nothing about the incremental impaet of 
systemwide practices extending over many years. Petitioners also argue 
that because many of the involved schools were in areas that had become 
predominantly black residential areas by the time of trial the racial separa­
tion in the schools would have occurred even without the unlawful conduct



COLUMBUS BOARD OF EDUCATION v. PENICK 15

only a few apparently isolated discriminatory practices had 
been found; 14 yet a systemwide remedy had been imposed 
without proof of a systemwide impact. Here, however, the 
District Court repeatedly emphasized that it had found pur­
posefully segregative practices with current, systemwide im­
pact.15 429 F. Supp., at 252, 259-260, 264, 266; Pet. App. 95; 
583 F. 2d, at 799.16 And the Court of Appeals, responding to 
similar arguments, said:

“ School board policies of systemwide application neces-

of Detitioners. But, as the District Court found, petitioners’ evidence in 
this respect was insufficient to counter respondents’ proof. See Village of 
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 
271 n. 21 (1977); Mt. Healthy School Dist. Bd. of Education v. Doyle, 429 
U. S. 274, 287 (1977). And the phenomenon described by petitioners 
seems only to confirm, not disprove, the evidence accepted by the District 
Court that school segregation is a contributing cause of housing segrega­
tion. 429 F. Supp., at 259; see Keyes, 413 IT. S., at 202-203; Swann, 402 
U. S., at 20-21.

14 Although the District Court in this case discussed in its major opinion 
a number of specific instances of purposeful segregation, it made it quite 
clear that its broad findings were not limited to those instances: “Viewing 
the Court’s March 8 findings in their totality, this case does not rest on 
three specific violations, or eleven, or any other specific number. It con­
cerns a school board which since 1954 has by its official acts aggravated, 
rather than alleviated, the racial imbalance of the public schools it ad­
ministers. These were not the facts of the Dayton case.” Pet. App. 94.

16 M r . Justice R ehnqtjist’s dissent erroneously states that we have 
“ relievfed] school desegregation plaintiffs from any showing o f a causal 
nexus between intentional segregative actions and the conditions they seek
to remedy.” Post, a t ---- . As we have expressly noted, both the District
Court and the Court of Appeals found that the Board’s purposefully 
discriminatory conduct and policies had current, systemwide impact—an 
essential predicate, as both courts recognized, for a systemwide remedy. 
Those courts reveal a much more knowledgeable and reliable view of the 
facts and of the record than do our dissenting Brethren.

16 “ For example, there is little dispute that Champion, Felton, Mt. Ver­
non, Pilgrim and Garfield were de jure segregated by direct acts of the 
Columbus defendants’ predecessors. They were almost completely segre­
gated in 1954, 1964, 1974 and today. Nothing has occurred to substan­



16 COLUMBUS BOARD OF EDUCATION v. PENICK

sarily have systemwide impact. 1) The pre-1954 policy 
of creating an enclave of five schools intentionally de­
signed for black students and known as ‘black’ schools, as 
found by the District Judge, clearly had a ‘substantial’— 
indeed, a systemwide— impact. 2) The post-1954 failure 
of the Columbus Board to desegregate the school system 
in spite of many requests and demands to do so, of course, 
had systemwide impact. 3) So, too, did the Columbus 
Board’s segregative school construction and siting policy 
as we have detailed it above. 4) So too did its student 
assignment policy which, as shown above, produced the 
large majority of racially identifiable schools as of the 
school year 1975-1976. 5) The practice of assigning 
black teachers and administrators only or in large major­
ity to black schools likewise represented a systemwide 
policy of segregation. This policy served until July 1974 
to deprive black students of opportunities for contact 
with and learning from white teachers, and conversely to 
deprive white students of similar opportunities to meet, 
know and learn from black teachers. It also served

tially alleviate that continuity of discrimination of thousands of black 
students over the intervening decades.” 429 F. Supp., at 260 (footnote 
omitted).

“The finding of liability in this case concerns the Columbus school dis­
trict as a whole. Actions and omissions by public officials which tend to 
make black schools blacker necessarily have the reciprocal effect of making 
white schools whiter. ‘ [I ]t  is obvious that the practice of concentrating 
Negroes in certain schools by structuring attendance zones or designating 
“feeder”  schools on the basis of race has the reciprocal effect of keeping 
other nearby schools predominantly white.’ Keyes [, supra, at 201]. 
The evidence in this case and the factual determinations made earlier in 
this opinion support the finding that those elementary, junior, and senior 
high schools in the Columbus school district which presently have a pre­
dominantly black student enrollment haye been substantially and directly 
affected by the intentional acts and omissions of the defendant local and 
state school boards.”  429 F. Supp., at 266.



COLUMBUS BOARD OF EDUCATION v. PENICK 17

as discriminatory, systemwide racial identification of 
schools.” 583 F. 2d, at 814.

Nor do we perceive any misuse of Keyes, where we held that 
purposeful discrimination in a substantial part of a school 
system furnishes a sufficient basis for an inferential finding of 
a systemwide discriminatory intent unless otherwise rebutted, 
and that given the purpose to operate a dual school system 
one could infer a connection between such a purpose and racial 
separation in other parts of the school system. There was no 
undue reliance here on the inferences permitted by Keyes, or 
upon those recognized by Swann. Furthermore, the Board 
was given ample opportunity to counter the evidence of segre­
gative purpose and current, systemwide impact, and the find­
ings of the courts below were against it in both respects. 429 
F. Supp., at 260; Pet. App. 95, 102, 105.

Because the District Court and the Court of Appeals com­
mitted no prejudicial errors of fact or law, the judgment ap­
pealed from must be affirmed.

So ordered.



SUPREME COURT OF THE UNITED STATES
No. 78-610

Columbus Board of Education 
et al., Petitioners, 

v.
Gary L. Penick et al.

On Writ of Certiorari to the 
United States Court of Ap­
peals for the Sixth Circuit.

[July 2, 1979]

M r. Chief Justice Burger, concurring in the judgment.
I perceive no real difference in the legal principles stated 

in the dissenting opinions of M r . Justice R ehnquist and 
M r . Justice Powell on the one hand and the concurring 
opinion of M r . Justice Stewart in this case on the other; 
they differ only in their view of the District Court’s role in 
applying these principles in the finding of facts.

Like M r . Justice R ehnquist, I have serious doubts as to 
how many of the post-1954 actions of the Columbus Board 
of Education can properly be characterized as segregative in 
intent and effect. On this record I might very well have con­
cluded that few of them were. However, like M r . Justice 
Stewart, I am prepared to defer to the trier of fact because 
I find it difficult to hold that the errors rise to the level of 
“ clearly erroneous” under Rule 52. The District Court did 
find facts sufficient to justify the conclusion reached by 
M r . Justice Stewart that the school “ district was not being 
operated in a racially neutral fashion” and that the Board’s 
actions affected “ a meaningful portion” of the school system. 
Keyes v. School District, No. 1, 413 U. S. 189, 208 (1973). 
For these reasons I join M r . Justice Stewart’s opinion.

In joining that opinion, I must note that I agree with much 
that is said by Justices R ehnquist and Powell in their dis­
senting opinions in this case and in Dayton, I agree espe­
cially with that portion of M r . Justice R ehnquist’s opinion



that criticizes the Court’s reliance on the finding that both 
Columbus and Dayton operated “ dual school systems” at the 
time of Brown v. Board of Education, 347 U. S. 489 (1954), as 
a basis for holding that these school boards have labored under 
an unknown and unforeseeable affirmative duty to desegregate 
their schools for the past 25 years. Nothing in reason or our 
previous decisions provides foundation for this novel legal 
standard.

I also agree with many of the concerns expressed by 
M r. Justice Powell with regard to the use of massive trans­
portation as a “ remedy.” It is becoming increasingly doubt­
ful that massive public transportation really accomplishes 
the desirable objectives sought. Nonetheless our prior de­
cisions have sanctioned its use when a constitutional violation 
of sufficient magnitude has been found. We cannot retry 
these sensitive and difficult issues in this Court; we can only 
set the general legal standards and, within the limits of 
appellate review, see that they are followed.

2 COLUMBUS BOARD OF EDUCATION v. PENICK



SUPEEME COUET OF THE UNITED STATES
Nos. 73-610 AND 78-627

Columbus Board of Education 
et al., Petitioners, 

78-610 v.
Gary L. Penick et al.

Dayton Board of Education 
et al., Petitioners, 

78-627 v.
Mark Brinkman et al.

On Writs of Certiorari to the 
United States Court of Ap­
peals for the Sixth Circuit.

[July 2, 1979]

M r. Justice Stewart, with whom T he Chief Justice 
joins, concurring in the result in No. 78-610 and dissenting 
in No. 78-627.

M y views in these cases differ in significant respects from 
those of the Court, leading me to concur only in the result in 
the Columbus case, and to dissent from the Court’s judgment 
in the Dayton case.

It seems to me that the Court of Appeals in both of these 
cases ignored the crucial role of the federal district courts in 
school desegregation litigation1— a role repeatedly emphasized 
by this Court throughout the course of school desegregation 
controversies, from Broum v. Board, of Education II, 349 U. S. 
294,1 2 to Dayton Board of Education v. Brinkman I, 433 U. S.

1 Rule 52 (a ), Federal Rule of Civil Procedure, reflects the general defer­
ence that is to be paid to the findings of a district court. “Findings of 
fact shall not be set aside unless clearly erroneous, and due regard shall 
be given to the opportunity of the trial court to judge of the credibility of 
the witnesses.”  See United States v. United States Gypsum, Co., 333 
U. S. 364, 394-395.

2 “ School authorities have the primary responsibility for elucidating, 
assessing, and solving these problems; courts will have to consider whether 
the action of school authorities constitutes good faith implementation of



2 COLUMBUS BOARD OF EDUCATION v. PENICK

406.3 The development of the law concerning school segre­
gation has not reduced the need for sound factfinding by the 
district courts, nor lessened the appropriateness of deference 
to their findings of fact. To the contrary, the elimination of 
the more conspicuous forms of governmentally ordained racial 
segregation over the last 25 years counsels undiminished def­
erence to the factual adjudications of the federal trial judges 
in cases such as these, uniquely situated as those judges are to 
appraise the societal forces at work in the communities where 
they sit.

Whether actions that produce racial separation are inten­
tional wihin the meaning o f Keyes v. School Dist. No. 1 , 413 
U. S. 189; Washington v. Davis 426 U. S. 229; and Village of 
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 
U. S. 252, is an issue that can present very difficult and subtle 
factual questions. Similarly intricate may be factual in­
quiries into the breadth of any constitutional violation, and 
hence of any permissible remedy. See Milliken v. Bradley I, 
418 U. S. 717; Dayton Board of Education v. Brinkman I, 433 
U. S. 406. Those tasks are difficult enough for a trial judge. 
The coldness and impersonality of a printed record, containing 
the only evidence available to an appellate court in any case,

the governing constitutional principles. Because of their proximity to 
local conditions and the possible need for further hearings, the courts 
which originally heard these cases can best perform this judicial appraisal.” 
Brown v. Board of Education II, 349 U. S. 294, 299.

3 “Indeed, the importance of the judicial administration aspects of the 
case are heightened by the presence of the substantive issues on which it 
turns. The proper observance of the division of functions between the 
federal trial courts and the federal appellate courts is important in every 
case. It is especially important in a case such as this where the District 
Court for the Southern District of Ohio was not simply asked to render 
judgment in accordance with the law of Ohio in favor of one private party 
against another; it was asked by the plaintiffs, students in the public 
school system of a large city, to restructure the administration of that 
system.” Dayton Board of Education v. Brinkman (I),  433 U. S. 406, 
409-410.



COLUMBUS BOARD OF EDUCATION u. PENICK 3

can hardly make the answers any clearer. I doubt neither the 
diligence nor the perservance of the judges of the Courts of 
Appeals, or of my Brethren, but I suspect that it is impossible 
for a reviewing court factually to know a case from a 6,600 
page printed record as well as the trial judge knew it. In 
assessing the facts in lawsuits like these, therefore, I think 
appellate courts should accept even more readily than in most 
cases the factual findings of the courts of first instance.

M y second disagreement with the Court in these cases stems 
from my belief that the Court has attached far too much im­
portance in each case to the question whether there existed a 
“ dual school system” in 1954. As I understand the Court’s 
opinions in these cases, if such an officially authorized segre­
gated school system can be found to have existed in 1954, 
then any current racial separation in the schools will be pre­
sumed to have been caused by acts in violation of the Con­
stitution. Even if, as the Court says, this presumption is 
rebuttable, the burden is on the school board to rebut it. 
And, when the factual issues are as elusive as these, who 
bears the burden of proof can easily determine who prevails 
in the litigation. Speiser v. Randall, 357 U. S. 513, 525-526.

I agree that a school district in violation of the Constitution 
in 1954 was under a duty to remedy that violation. So was 
a school district violating the Constitution in 1964. and so is 
one violating the Constitution today. But this duty does not 
justify a complete shift of the normal burden of proof.4

Presumptions are sometimes justified because in common

4 In Keyes the Court did discuss the affirmative duty of a school board 
to desegregate the school district, but limited its discussion to cases 
“where a dual system was compelled or authorized by statute at the time 
of our decision in Brown v. Board of Education . . . 413 U. S., at 200.
It is undisputed that Ohio has forbidden its school boards racially to segre­
gate the public schools since at least 1888. See Dayton I, 433 U. S., at 
410 n. 4; Ohio Rev. Code Ann. §3313.48 (1972); Board of Education v. 
State, 45 Ohio St. 555, 16 N. E. 373; Clemons v. Board of Education, 228 
F. 2d 853, 858.



4 COLUMBUS BOARD OF EDUCATION v. PENICK

experience some facts are likely to follow from others. See
County Court of Ulster County v. Allen ,---- - U. S .-----Sand-
strom v. M ontana,----  U. S . -----. A constitutional violation
in 1954 might be presumed to make the existence of a consti­
tutional violation 20 years later more likely than not in one 
of two ways. First, because the school board then had an 
invidious intent, the continuing existence of that collective 
state of mind might be presumed in the abesnce of proof to 
the contrary. Second, quite apart from the current intent of 
the school board, an unconstitutionally discriminatory school 
system in 1954 might be presumed still to have major effects 
on the contemporary system. Neither of these possibilities 
seems to me likely enough to support a valid presumption.

Much has changed in 25 years, in the Nation at large and in 
Dayton and Columbus in particular. Minds have changed 
with respect to racial relationships. Perhaps more impor­
tantly, generations have changed. The prejudices of the 
school boards of 1954 (and earlier) cannot realistically be as­
sumed to haunt the school boards of today. Similarly, while 
two full generations of students have progressed from kinder­
garten through high school, school systems have changed. 
Dayton and Columbus are both examples of the dramatic 
growth and change in urban school districts.5 It is unrealistic 
to assume that the hand of 1954 plays any major part in shap­
ing the current school systems in either city. For these rea­

5 The Columbus school district grew quickly in the years after 1954. In 
1950-1951 the district had 46,352 students. In 1960-1961, over 83,000 
students were enrolled. Attendance peaked in 1971-1972 at just over 
110,000 students, before sinking to 95,000 at the time of trial. Between 
1950 and 1970, an average of over 100 classrooms a year were added to 
the district.

Although the Dayton district grew less dramatically, the student popula­
tion increased from 35,000 in 1950-1951, of whom approximately 6,600 
were Negro, to 45,000 at the time of trial, of whom about 22,000 were 
Negro. Twenty-four new schools were opened in Dayton between 1954 
and the time of trial.



COLUMBUS BOARD OF EDUCATION v. PENICK 5

sons, I simply cannot accept the shift in the litigative burden 
of proof adopted by the Court.

Because of these basic disagreements with the Court’s ap­
proach, these two cases look quite different to me from the 
way they look to the Court. In both cases there is no doubt 
that many of the districts’ children are in schools almost solely 
with members of their own race. These racially distinct areas 
make up substantial parts of both districts. The question 
remains, however, whether the plaintiffs showed that this 
racial separation was the result of intentional systemwide 
discrimination.

The Dayton case
After further hearings following the remand by this Court 

in the first Dayton case, the District Court dismissed this law­
suit. It found that the plaintiffs had not proved a discrimina­
tory purpose behind many of the actions challenged. It 
found further that the plaintiffs had not proved that any sig­
nificant segregative effect had resulted from those few prac­
tices that the school board had previously undertaken with an 
invalid intent. The Court of Appeals held these findings to 
be clearly erroneous. I cannot agree.

As to several claimed acts of post-1954 discrimination, the 
Court of Appeals seems simply to have differed with the trial 
court’s factual assessments, without offering a reasoned ex­
planation of how the trial court’s finding fell short.6 The 
Court of Appeals may have been correct in its assessment of

6 For example, the District Court concluded that faculty segregation in 
the Dayton district ceased by 1963, The Court of Appeals reversed, 
saying:
“In Brinkman I, supra, 503 F. 2d at 697-98, this court found that de­
fendants ‘effectively continued in practice the racial assignment of faculty 
through the 1970-71 school year.’ This finding is supported by substan­
tial evidence on the record. The finding of the district court to the con­
trary is clearly erroneous.” (Footnotes omitted.) 583 F. 2d 243, at 253.



6 COLUMBUS BOARD OF EDUCATION v. PENICK

the facts, but that is not demonstrated by its opinion. I 
would accept the trial judge’s findings of fact.

Furthermore, the Court of Appeals relied heavily on the 
proposition that the Dayton School District was a “dual sys­
tem” in 1954, and today this Court places great stress on the 
same foundation. In several instances the Court of Appeals 
overturned the District Court’s findings of fact because of the 
trial court’s failure to shift the burden of proof.7 Because I 
think this shifting of the burden is wholly unjustified, it seems 
to me a serious mistake to upset the District Court’s findings 
on any such basis. If one accepts the facts as found by the 
District Judge, there is almost no basis for finding any consti­
tutional violations after 1954. Nor is there any substantial 
evidence of the continuing impact of pre-1954 discrimination. 
Only if the defendant school board is saddled with the burdens 
of proving that it acted out of proper motives after 1954 and 
that factors other than pre-1954 policies led to racial separa­
tion in the district’s schools, could these plaintiffs possibly 
prevail.

For the reasons I have expressed, I dissent from the opinion 
and judgment of the Court.

7 Thus, in considering certain optional attendance zones that the District 
Court found had not been instituted with a discriminatory intent, the 
Court of Appeals wrote:
“ In reaching these clearly erroneous findings of fact, the district court 
once again failed to recognize the optional zones as a perpetuation, rather 
than an elimination, of the existing dual system; failed to afford plaintiffs 
the burden-shifting benefits of their prima facie case; and failed to 
evaluate the evidence in light of tests for segregative intent enunciated by 
the Supreme Court, this court and other circuits in decisions cited in this 
opinion.”  583 F. 2d 243, 255.
The Court of Appeals opinion relied upon the same theory in overturning 
the factual conclusions of the District Court that school construction and 
site selection had not been undertaken with a discriminatory purpose in 
Dayton. Thus, it is impossible to separate the conclusions of law made by 
the Court of Appeals from its rulings that the District Court made clearly 
erroneous findings of fact.



COLUMBUS BOARD OF EDUCATION v. PENICK 7

The Columbus case
In contrast, the Court of Appeals did not upset the District 

Court’s findings of fact in this case. In a long and careful 
opinion, the District Judge discussed numerous examples of 
overt racial discrimination continuing into the 1970’s.''' Just 8

8 The two clearest cases of discrimination involved attendance zones. 
The near-Bexley optional zone operated from the 1959-1960 school year 
through the 1974-1975 school year. This zone encompassed a small area 
of Columbus between Alum Creek and the town of Bexley. The area 
west of the creek was predominately Negro; the area covered by the 
option was predominately white. Students living in that zone were given 
the option of being bused entirely through the City of Bexley to “white” 
Columbus schools on its eastern border. The District Court concluded 
that:

“ Nothing presented by the Columbus defendants at trial, at closing 
arguments, or in their briefs convinces the Court that the Near-Bexley 
Option was created or maintained for racially neutral reasons. The Court 
finds that the option was not created and maintained because of over­
crowding or geographical barriers.

“ Quite frankly, the Near-Bexley Option appears to this Court to be a 
classic example of a segregative device designed to permit white students 
to escape attendance at predominately black schools.” 429 F. Supp. 229, 
245.

The Moler discontiguous zone affected two elementary schools in the 
southeastern portion of the school district. A majority of the students in 
the Alum Crest Elementary School were, at all relevant times, Negro. 
Through 1969, no more than 8.7% of the students at the other school, 
Moler Elementary, were Negro. The District Court found:

“Between September, 1966 and June, 1968, about 70 students, most of 
them white, were bused daily past Alum Crest Elementary from the dis­
contiguous attendance area to Moler Elementary. The then-principal of 
Alum Crest watched the bus drive past the Alum Crest building on its 
way to and from Moler. At the time, the Columbus Board of Education 
was leasing 11 classrooms at Alum Crest to Franklin County. There was 
enough classroom space at Alum Crest to accommodate the students who 
were transported to Moler. When the principal inquired of a Columbus 
school administrator why this situation existed, he was given no reasonable 
explanation.

“The Court can discern no other explanation than a racial one for the



8 COLUMBUS BOARD OF EDUCATION v. PENICK

as I would defer to the findings of fact made by the District 
Court in the Dayton case, I would accept the trial court’s 
findings in this case.

The Court of Appeals did rely in part on its finding that the 
Columbus board operated a dual school system in 1954, as 
does this Court. But evidence of recent discriminatory in­
tent, so lacking in the Dayton case, was relatively strong in 
this case. The particular illustrations recounted by the Dis­
trict Court may not have affected a large portion of the school 
district, but they demonstrated that the district was not being 
operated in a racially neutral manner. The District Court 
found that the Columbus board had intentionally discrim­
inated against Negro students in some schools, and that there 
was substantial racial separation throughout the district. 
The question in my judgment is whether the District Court’s 
conclusion that there had been a systemwide constitutional 
violation can be upheld on the basis of those findings, without 
reference to an affirmative duty stemming from the situation 
in 1954.

I think the Court’s decision in Keyes v. School Dist. No. 1, 
413 U. S. 189, provides the answer:

“We hold that a finding of intentionally segregative 
school board actions in a meaningful portion o f a school 
system, as in this case, creates a presumption that other 
segregated schooling within the system is not adven­
titious. It establishes, in other words, a prima facie case 
of unlawful segregative design on the part of school au­
thorities, and shifts to those authorities the burden of 
proving that other segregated schools within the system 
are not also the result of intentionally segregative 
actions.” 413 U. S., at 208.

The plaintiffs in the Columbus case, unlike those in the Day­

existence of the Moler discontiguous attendance area for the period 1963 
through 1969.”  429 F. Supp. 229, 247.



COLUMBUS BOARD OF EDUCATION v. PENICK 9

ton case, proved what the Court in Keyes defined as a prima 
facie case.9 The District Court and the Court of Appeals 
correctly found that the school board did not rebut this 
presumption. It is on this basis that I agree with the Dis­
trict Court and the Court of Appeals in concluding that the 
Columbus school district was operated in violation of the 
Constitution.

The petitioners in the Columbus case also challenge the 
remedy imposed by the District Court. Just two Terms ago 
we set out the test for determining the appropriate scope of 
a remedy in a case such as this:

“If such violations are found, the District Court in the 
first instance, subject to review by the Court of Appeals, 
must determine how much incremental segregative effect 
these violations had on the racial distribution of the . . . 
school population as presently constituted, when that 
distribution is compared to what it would have been 
in the absence of such constitutional violations. The 
remedy must be designed to redress that difference, and 
only if there has been a systemwide impact may there be 
a systemwide remedy.” Dayton Board of Education v. 
Brinkman I, 433 U. S. 406, 420.

In the context in which the Columbus case has reached us, I 
cannot say that the remedy imposed by the District Court was 
impermissible under this test. For the reasons discussed 
above, the District Court’s conclusion that there was a sys­
temwide constitutional violation was soundly based. And

9 The Denver school district at the time of the trial in Keyes had 96,000 
students, almost exactly the number of students in the Columbus system 
at the time of this trial. The Park Hill region of Denver had been the 
scene of the intentional discrimination that the Court believed justified a 
presumption of systemwide violation. That region contained six elemen­
tary schools and one junior high school, educating a small portion of the 
school district’s students, but a large number of the district’s Negro 
students.



10 COLUMBUS BOARD OF EDUCATION v. PENICK

because the scope of the remedy is tied to the scope of the 
violation, a remedy encompassing the entire school district 
was presumptively appropriate. In litigating the question 
of remedy, however, I think the defendants in a case such as 
this should always be permitted to show that certain schools 
or areas were not affected by the constitutional violation.

The District Court in this case did allow the defendants to 
show just that. The school board proposed several remedies, 
but it put forward only one plan that was limited by the 
allegedly limited effects of the violation. That plan would 
have remedied racial imbalance only in the schools mentioned 
in the District Court’s opinion. Another remedy proposed by 
the school board would have resulted in a rough racial balance 
in all but 22 “ all-white” schools. But the board did not assert 
that those schools had been unaffected by the violations. In­
stead, it justified that plan on the ground that it would bring 
the predominately Negro schools into balance with no need 
to involve the 22 all-white schools on the periphery of the 
district. The District Court rejected this plan, finding that 
it would not offer effective desegregation since it would leave 
those 22 schools available for “white flight.” The plan ulti­
mately adopted by the District Court used the Negro school 
population of Columbus as a benchmark, and decreed that all 
the public schools should be 32% minority, plus or minus 
15%.

Although, as the Court stressed in Green v. County School 
Board, 391 IT. S. 430, a remedy is to be judged by its effective­
ness, effectiveness alone is not a reason for extending a remedy 
to all schools in a district. An easily visible correlation be­
tween school segregation and residential segregation cannot by 
itself justify the blanket extension of a remedy throughout a 
district. As Dayton I  made clear, unless a school was affected 
by the violations, it should not be included in the remedy. I 
suspect the defendants in Columbus might have been able to 
show that at least some schools in the district were not affected



COLUMBUS BOARD OF EDUCATION v. PENICK 11

by the proven violations. Schools in the far eastern or north­
ern portions of the district were so far removed from the 
center of Negro population that the unconstitutional actions 
of the board may not have affected them at all. But the 
defendants did not carry the burden necessary to exclude those 
schools.

The remedy adopted by the District Court used numerical 
guidelines, but it was not for that reason invalid. As this 
Court said in Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U. S. 1,

“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.” 413 U. S., at 25.

On this record, therefore, I cannot say that the remedy was 
improper.

For these reasons, I concur in the result in Columbus Board 
of Education v. Penick, and dissent in Dayton Board of 
Education v. Brinkman.



SUPREME COURT OF THE UNITED STATES
Nos. 78-610 a n d  78-627

Columbus Board of Education 
et al., Petitioners, 

78-610 v.
Gary L. Penick et al.

Dayton Board of Education 
et al., Petitioners, 

78-627 v.
Mark Brinkman et al.

On Writs of Certiorari to the 
United States Court of Ap­
peals for the Sixth Circuit.

[July 2, 1979]

M r. Justice Powell, dissenting.
I join the dissenting opinions of M r. Justice R ehnquist 

and write separately to emphasize several points. The 
Court’s opinions in these two cases are profoundly disturbing. 
They appear to endorse a wholly new constitutional concept 
applicable to school cases. The opinions also seem remark­
ably insensitive to the now widely accepted view that a quar­
ter of a century after Brown v. Board of Education, 347 U. S. 
483 (1954), the federal judiciary should be limiting rather 
than expanding the extent to which courts are operating the 
public school systems of our country. In expressing these 
views, I recognize, of course, that my Brothers who have 
joined the Court’s opinions are motivated by purposes and 
ideals that few would question. M y dissent is based on a 
conviction that the Court’s opinions condone the creation of 
bad constitutional law and will be even worse for public edu­
cation—an element of American life that is essential, especially 
for minority children.

I
M r. Justice R ehnquist’s dissents demonstrate that the 

Court’s decisions mark a break with both precedent and prin­



2 COLUMBUS BOARD OF EDUCATION v. PENICK

ciple. The Court indulges the courts below in their stringing 
together of a chain of “presumptions,” not one of which is 
close enough to reality to be reasonable. See ante, at 4 (opin­
ion of Stewart, J.). This claim leads inexorably to the re­
markable conclusion that the absence of integration found to 
exist in a high percentage of the 241 schools in Columbus and 
Dayton was caused entirely by intentional violations of the 
Fourteenth Amendment by the school boards of these two 
cities. Although this conclusion is tainted on its face, is not 
supported by evidence in either case, and as a general matter 
seems incredible, the courts below accepted it as the necessary 
premise for requiring as a matter of constitutional law a sys­
temwide remedy prescribing racial balance in each and every 
school.

There are unintegrated schools in every major urban area 
in the country that contains a substantial minority popula­
tion. This condition results primarily from familiar segre­
gated housing patterns, which—in turn— are caused by social, 
economic, and demographic forces for which no school board 
is responsible. These causes of the greater part of the school 
segregation problem are not newly discovered. Nearly a 
decade ago, Professor Bickel wrote:

“ In most of the larger urban areas, demographic condi­
tions are such that no policy that a court can order, and 
a school board, a city or even a state has the capability 
to put into effect, will in fact result in the foreseeable 
future in racially balanced public schools. Only a re­
ordering of the environment involving economic and social 
policy on the broadest conceivable front might have an 
appreciable impact.” A. Bickel, The Supreme Court and 
the Idea of Progress 132 n. 7 (1979) 2 1

1 See also Farley, Residential Segregation and Its Implications for School 
Integration, 39 L. & Contemp. Probs. 164 (1975); K. Taeuber & A. Taeu- 
ber, Negroes in Cities (1965). The Court of Appeals below treated the 
residential segregation in Dayton and Columbus as irrelevant. See post, 
at — , and n. 24 (R bhnquist, J., dissenting).



Federal courts, including this Court today, continue to ignore 
these indisputable facts. Relying upon fictions and presump­
tions in school cases that are irreconcilable with principles of 
equal protection law applied in all other cases, see, e. g., Per­
sonnel Administrator v. F eeney,---- U. S .------ (1979); Arling­
ton Heights v. Metropolitan Housing Development Corp., 429 
U. S. 252 (1977); Washington v. Davis, 426 TJ. S. 229 (1976), 
federal courts prescribe systemwide remedies without relation 
to the causes of the segregation found to exist, and implement 
their decrees by requiring extensive transportation of children 
of all school ages.

The type of state-enforced segregation that Brown properly 
condemned no longer exists in this country. This is not to 
say that school boards—particularly in the great cities of the 
North, Midwest, and West—are taking all reasonable meas­
ures to provide integrated educational opportunities. As I 
indicated in my separate opinion in Keyes v. School District 
No. 1, 413 U. S. 189, 223-236 (1973), de facto segregation has 
existed on a large scale in many of these cities, and often it 
is indistinguishable in effect from the type of de jure segrega­
tion outlawed by Brown. Where there is proof of intentional 
segregative action or inaction, the federal courts must act, but 
their remedies should not exceed the scope of the constitu­
tional violation. Dayton v. Brinkman, 433 U. S. 406 (1977); 
Austin Independent School District v. United States, 429 U. S. 
990, 991 (1976) (P owell, J., concurring); Pasadena City 
Board of Education v. Spangler, 427 U. S. 424 (1976); Milli- 
ken v. Bradley, 418 U. S. 717 (1974); Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U. S. 1, 16 (1971). 
Systemwide remedies such as were ordered by the courts be­
low, and today are approved by this Court, lack any principled 
basis when the absence of integration in all schools cannot 
reasonably be attributed to discriminatory conduct.2

COLUMBUS BOARD OF EDUCATION v. PENICK 3

2 As I suggested in my separate opinion in Keyes, it is essential to iden­
tify the constitutional right that is asserted in school desegregation cases.



4 COLUMBUS BOARD OF EDUCATION v. PENICK

M r . Justice R ehnquist has dealt devastatingly with the 
way in which the Court of Appeals endowed prior precedents 
with new and wonderous meanings. I can add little to what 
he has said. I therefore move to more general but, in my 
view, important considerations that the Court simply ignores.

II
Holding the school boards of these two cities responsible 

for all of the segregation in the Dayton and Columbus sys- 
stems and prescribing fixed racial ratios in every school as 
the constitutionally required remedy necessarily implies a 
belief that the same school boards—under court supervision—  
will be capable of bringing about and maintaining the desired 
racial balance in each of these schools. The experience in 
city after city demonstrates that this is an illusion. The 
process of resegregation, stimulated by resentment against 
judicial coercion and concern as to the effect of court super­

The Court’s decisions hardly have been lucid on this point. In Brown II, 
348 U. S. 294 (1955), the Court identified the “ fundamental principle” ' 
enunciated in Brown I, as being the unconstitutionality “ of racial discrimi­
nation in public education.”  Id., at 298. In Keyes I undertook to define 
the right, derived from the Equal Protection Clause, as one to attend an 
“ integrated school system,”  a system in which school authorities take into 
consideration the enhancement of integrated school opportunities in addition 
to the goal of quality education in making and implementing their custom­
ary decisions. 413 U. S., at 226. I also noted that an integrated system 
does not mean that “ every school must in fact be an integrated unit,”  id., 
at 227, and emphasized that the Equal Protection Clause “ does not require 
the school authorities to undertake widespread student transportation1 
solely for the sake of maximizing integration.”  Id., at 242. When chal­
lenged, the school authorities must show that in fact they are operating an 
integrated system in the foregoing sense. This is quite different from the 
burden imposed on the school authorities by the Court of Appeals, and the 
District Court in No. 78-610, of proving, by a preponderance of the evi­
dence, that they have met an affirmative duty in existence since 1954 to 
eliminate every racially identifiable school “ root and branch.”



COLUMBUS BOARD OF EDUCATION v. PENICK 5

vision of education, will follow today’s decisions as surely as 
it has in other cities subjected to similar sweeping decrees.

The orders affirmed today typify intrusions on local and 
professional authorities that affect adversely the quality of 
education. They require an extensive reorganization of both 
school systems, including the reassignment of almost half of 
the 96,000 students in the Columbus system and the busing 
of some 15,000 students in Dayton. They also require reas­
signments of teachers and other staff personnel, reorganiza­
tion of grade structures, and the closing of certain schools. 
The orders substantially dismantle and displace neighborhood 
schools in the face of compelling economic and educational 
reasons for preserving them. This wholesale substitution of 
judicial legislation for the judgments of elected officials and 
professional educators derogates the entire process of public 
education.3 Moreover, it constitutes a serious interference 
with the private decisions of parents as to how their children 
will be educated. These harmful consequences are the inevi­
table byproducts of a judicial approach that ignores other 
relevant factors in favor of an exclusive focus on racial balance 
in every school.

These harmful consequences, moreover, in all likelihood 
will provoke responses that will defeat the integrative purpose 
of the courts’ order. Parents, unlike school officials, are not 
bound by these decrees and may frustrate them through the 
simple expedient of withdrawing their children from a public 
school system in which they have lost confidence. In spite of 
the substantial costs often involved in relocation of the family 
or in resort to private education,4 experience demonstrates that

3 Defending lawsuits that remain active for years and complying with 
elaborate court decrees also divert the time, attention, and resources of 
school authorities from education.

4 A third alternative is available to parents moving for the first time into 
a metropolitan area where a school district is operating under a “system­



6 COLUMBUS BOARD OF EDUCATION v. PENICK

many parents view these alternatives as preferable to sub­
mitting their children to court-run school systems. In the 
words of a leading authority:

“An implication that should have been seen all along 
but can no longer be ignored is that a child’s enrollment 
in a given public school is not determined by a govern­
mental decision alone. It is a joint result of a govern­
mental decision (the making of school assignments) and 
parental decisions, whether to remain in the same resi­
dential location, whether to send their child to a private 
school, or which school district to move into when moving 
into a metropolitan area. The fact that the child’s en­
rollment is a result of two decisions operating jointly 
means that government policies must, to be effective, 
anticipate parental decisions and obtain the parents’ ac­
tive cooperation in implementing school policies.” Cole­
man, New Incentives for Desegregation, 7 Human Rights 
10, 13 (1978).

At least where inner-city populations comprise a large pro­
portion of racial minorities and surrounding suburbs remain 
white, conditions that exist in most large American cities, the 
demonstrated effect of compulsory integration is a substantial 
exodus of whites from the system. See J. Coleman, S. Kelly, 
and J. Moore, Trends in School Segregation, 1968-1973, at 66, 
76-77 (1976). It would be unfair and misleading to attribute 
this phenomenon to a racist response to integration per se. 
It is at least as likely that the exodus is in substantial part 
a natural reaction to the displacement of professional and 
local control that occurs when courts go into the business of 
restructuring and operating school systems.

Nor will this resegregation be the only negative effect

wide remedy” decree. To avoid the probability of their children being 
bused away from neighborhood schools, and in view of the widely held 
belief that the schools under a court decree are likely to be inferior, these 
parents may seek residences beyond the urban school district.



of court-coerced integration on minority children. Public 
schools depend on community support for their effectiveness. 
When substantial elements of the community are driven to 
abandon these schools, their quality tends to decline, some­
times markedly. Members of minority groups, who have 
relied especially on education as a means of advancing them­
selves, also are likely to react to this decline in quality by re­
moving their children from public schools.5 As a result, 
public school enrollment increasingly will become limited to 
children from families that either lack the resources to choose 
alternatives or are indifferent to the quality of education. The 
net effect is an overall deterioration in public education, the 
one national resource that traditionally has made this country 
a land of opportunity for diverse ethnic and racial groups. 
See Keyes, supra, at 250 (opinion of Powell, J.).

I l l
If public education is not to suffer further, we must “ return 

to a more balanced evaluation of the recognized interests of 
our society in achieving desegregation with other educational 
and societal interests a community may legitimately assert.” 
Id., at 253. The ultimate goal is to have quality school sys-

5 Academic debate has intensified as to the degree of educational benefit 
realized by children due to integration. See R. Crain & R. Mahard, The 
Influence of High School Racial Composition on Black College Attendance 
and Test Performance (1978) ; Coleman, New Incentives for Desegrega­
tion, 7 Human Rights 10 (1978); Weinberg, The Relationship Between 
School Desegregation and Academic Achievement: A Review of the Re­
search, 39 L. & Contemp. Probs. 240 (1975). Much of the dispute seems 
beside the point. It is essential that the diverse peoples of our country 
learn to live in harmony and mutual respect. This end is furthered when 
young people attend schools with diverse student bodies. But the bene­
fits that may be achieved through this experience often will be compro­
mised where the methods employed to promote integration include coercive 
measures such as forced transportation to achieve some theoretically de- 
sirable racial balance. Cf. N. St. John, School Desegregation Outcomes for 
Children (1975).

COLUMBUS BOARD OF EDUCATION v. PENICK 7



8 COLUMBUS BOARD OF EDUCATION v. PENICK

terns in which racial discrimination is neither practiced nor 
tolerated. It has been thought that ethnic and racial diver­
sity in the classroom is a desirable component of sound edu­
cation in our country of diverse populations, a view to which 
I subscribe. The question that courts in their single-minded 
pursuit of racial balance seem to ignore is how best to move 
toward this goal.

For a decade or more after Brown, the courts properly 
focused on dismantling segregated school systems as a means 
of eliminating state-imposed discrimination and furthering 
wholesome diversity in the schools.6 Experience in recent 
years, however, has cast serious doubt upon the efficacy of 
far-reaching judicial remedies directed not against specific 
constitutional violations, but rather imposed on an entire 
school system on the fictional assumption that the existence 
of identifiable black or white schools is caused entirely by 
intentional segregative conduct, and is evidence of system- 
wide discrimination. In my view, some federal courts—now 
led by this Court—are pursuing a path away from rather than 
toward the desired goal. While these courts conscientiously 
view their judgments as mandated by the Constitution (a

6 During this period the issues confronted by the courts by and large 
involved combatting the devices by which States deliberately perpetuated 
dual school systems and dismantling segregated systems in small, rural 
areas. E. g., Green v. County School Board, 391 U. S. 430 (1968); Griffin 
v. School Board, 377 U. S. 218 (1964); Goss v. Board of Education, 373 
U. S. 683 (1963); Coo-per v. Aaron, 358 U. S. 1 (1958). See Wilkinson, 
The Supreme Court and Southern School Desegregation, 1955-1970: A 
History and Analysis, 64 Va. L. Rev. 485 (1978). This Court did not 
begin to face the difficult administrative and social problems associated 
with de facto segregation in large urban school systems until Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971). It is 
especially unfortunate that the Court today refuses to acknowledge these 
problems and chooses instead to sanction methods that, although often 
appropriate and salutary in the earlier context, are disruptive and counter­
productive in school systems like those in Columbus and Dayton.



COLUMBUS BOARD OF EDUCATION v. PENICK 9

view that would have astonished constitutional scholars 
throughout most of our history), the fact is that restructuring 
and overseeing the operation of major public school systems— 
as ordered in these cases—fairly can be viewed as social engi­
neering that hardly is appropriate for the federal judiciary.

The time has come for a thoughtful re-examination of the 
proper limits of the role of courts in confronting the intracta­
ble problems of public education in our complex society. 
Proved discrimination by state or local authorities should 
never be tolerated, and it is a first responsibility of the judi­
ciary to put an end to it where it has been proved. But many 
courts have continued also to impose wide-ranging decrees, 
and to retain ongoing supervision over school systems. Local 
and state legislative and administrative authorities have been 
supplanted or relegated to initiative-stifling roles as minions 
of the courts. Indeed, there is reason to believe that some 
legislative bodies have welcomed judicial activism with respect 
to a subject so inherently difficult and so politically sensitive, 
that the prospect of others confronting it seems inviting. 
Federal courts no longer should encourage this deference by 
the appropriate authorities—no matter how willing they may 
be to defer. Courts are the branch least competent to provide 
long-range solutions acceptable to the public and most con­
ducive to achieving both diversity in the classroom and quality 
education.

School boards need not wait, and many have not waited, 
for innovative legislative guidance. The opinion of the Court 
in Swann, though often cited (as in this case) for views I 
think were never intended, identified some constructive actions 
always open to school authorities:

“ An optional majority-to-minority transfer provision 
has long been recognized as a useful part of every deseg­
regation plan. Provision for optional transfer of those 
in the majority racial group of a particular school to 
other schools where they will be in the minority [or less



10 COLUMBUS BOARD OF EDUCATION v. PENICK

in the majority] is an indispensable remedy for those 
students willing to transfer to other schools in order to 
lessen the impact on them of the state-imposed stigma 
of segregation. In order to be effective, such a transfer 
arrangement must grant that transferring student free 
transportation and space must be made available in the 
school to which he desires to move.” 402 U. S., at 26-27. 

See also Keyes, supra, at 240-241 (opinion of Powell, J.). 
Incentives can be employed to encourage these transfers, such 
as creation of magnet schools providing special educational 
benefits and state subsidization of those schools that expand 
their minority enrollments. See, e. g., Willie, Racial Balance 
or Quality Education?, in School Desegregation, Shadow and 
Substance (Levinsohn and Wright, eds. 1976). These and 
like plans, if adopted voluntarily by States, also could help 
counter the effects of racial imbalances between school dis­
tricts that are beyond the reach of judicial correction. See 
Milliken v. Bradley, supra; cf. Coleman, 7 Human Rights 10, 
supra, at 48-49.7

After all, and in spite of what many view as excessive gov­
ernment regulation, we are a free society—perhaps the most 
free of any in the world. Our people instinctively resent 
coercion, and perhaps most of all when it affects their children 
and the opportunities that only education affords them. It is 
now reasonably clear that the goal of diversity that we call 
integration, if it is to be lasting and conducive to quality

7 Wisconsin has implemented a system of subsidized, voluntary, intra- and 
inter-district majority-to-minority transfers. 1975 Laws of Wisconsin eh. 
220, codified at Wis. Stat. Ann. § 121.85. It is too early to determine 
whether this experiment will attain its objective of encouraging substantial 
integration. But it is the sort of effort that should be considered by state 
and local officials and elected bodies. The contrast between the underlying 
philosophy of the Wisconsin plan and the massive coercion undertaken by 
the courts below is striking. See Meadows, Open Enrollment and Fiscal 
Incentives, in School Desegregation, Shadow and Substance (Levinsohn and 
Wright eds. 1976).



COLUMBUS BOARD OF EDUCATION. v. PENICK 11

education, must have the support of parents who so frequently 
have the option to choose where their children will attend 
school. Courts, of course, should confront discrimination 
wherever it is found to exist. But they should recognize limi­
tations on judicial action inherent in our system and also the 
limits of effective judicial power. The primary and continu­
ing responsibility for public education, including the bringing 
about and maintaining of desired diversity, must be left with 
school officials and public authorities.



SUPREME COURT OF THE UNITED STATES
No. 78-610

Columbus Board of Education 
et al., Petitioners, 

v.
Gary L. Penick et al.

On Writ of Certiorari to the 
United States Court of Ap­
peals for the Sixth Circuit.

[July 2, 1979]

M r. Justice R ehnquist, with whom M r. Justice Powell 
joins, dissenting.

The school desegregation remedy imposed on the Columbus 
school system by this Court’s affirmance of the Court of Ap­
peals is as complete and dramatic a displacement of local 
authority by the federal judiciary as is possible in our federal 
system. Pursuant to the District Court’s order, 42,000 of 
the system’s 96,000 students are reassigned to new schools. 
There are like reassignment of teachers, staff, and administra­
tors, reorganization of the grade structure of virtually every 
elementary school in the system, the closing of 33 schools, and 
the additional transportation of 37,000 students.

It is difficult to conceive of a more serious supplantation 
because, as this Court recognized in Brown v. Board of Edu­
cation, 347 U. S. 483, 493 (1964) (Brown I), “ education is 
perhaps the most important function of state and local gov­
ernment” ; indeed, it is “a vital national tradition.” Dayton 
Board of Education v. Brinkman, 433 U. S. 406, 410 (1977) 
(.Dayton I ) ; see Milliken v. Bradley, 418 U. S. 717, 741-742 
(1974); Wright v. Council of the City of Emporia, 407 U. S. 
451, 469 (1972). That “local autonomy has long been 
thought essential both to the maintenance of community con­
cern and support for public schools and to quality of the edu­
cational process,” Milliken, supra, does not, of course, place 
the school system beyond the authority of federal courts as



guardians of federal constitutional rights. But the practical 
and historical importance of the tradition does require that 
the existence of violations of constitutional rights be carefully 
and clearly defined before a federal court invades the tradi­
tional ambit of local control, and that the subsequent displace­
ment of local authority be limited to that necessary to correct 
the identified violations. “ It is for this reason that the case 
for displacement of the local authorities by a federal court in 
a school desegregation case must be satisfactorily established 
by factual proof and justified by a reasoned statement of legal 
principles.” Dayton I, supra, at 410.

I think the District Court and Court of Appeals in this case 
did not heed this admonition. One can search their opinions 
in vain for any concrete notion of what a “systemwide viola­
tion” consists of or how a trial judge is to go about determin­
ing whether such a violation exists or has existed. What logic 
is evident emasculates the key determinants set down in 
Keyes v. School District No. 1, 413 U. S. 189 (1973), for prov­
ing the existence and scope of a violation warranting federal 
court intervention: discriminatory purpose and a causal rela­
tionship between acts motivated by such a purpose and a cur­
rent condition of segregation in the school system. The lower 
courts’ methodology would all but eliminate the distinction 
between de facto and de jure segregation and render all school 
systems captives of a remote and ambiguous past.

Today the Court affirms the Court of Appeals for the Sixth 
Circuit in this case and Dayton. Board of Education v. Brink- 
man, No. 78-627 (Dayton II),  in opinions so Delphic that 
lower courts will be hard pressed to fathom their implications 
for school desegregation litigation. I can only offer two sug­
gestions. The first is that the Court, possibly chastened by 
the complexity and emotion that accompanies school desegre­
gation cases, wishes to relegate the determination of a viola­
tion of the Equal Protection Clause of the Fourteenth Amend­
ment in any plan of pupil assignment, and the formulation

2 COLUMBUS BOARD OF EDUCATION v. PENICK



COLUMBUS BOARD OF EDUCATION v. PENICK 3

of a remedy for its violation, to the judgment of a single Dis­
trict Judge. That judgment should be subject to review 
under the “ clearly erroneous” standard by the appropriate 
Court of Appeals, in much the same way that actions for an 
accounting between private partners in a retail shoe business 
or claimants in an equitable receivership of a failing commer­
cial enterprise are handled. “Discriminatory purpose” and 
“ systemwide violation” are to be treated as talismanic phrases 
which once invoked, warrant only the most superficial scrutiny 
by appellate courts.

Such an approach is, however, obviously inconsistent with 
the Dayton I  admonition and disparages both this Court’s 
oft-expressed concern for the important role of local autonomy 
in educational matters and the significance of the constitu­
tional rights involved. It also holds out the disturbing pros­
pect of very different remedies being imposed on similar school 
systems because of the predilections of individual judges and 
their good faith but incongruent efforts to make sense of this 
Court’s confused pronouncements today.1 Concepts such as 
“ discriminatory purpose” and “systemwide violation” present 
highly mixed questions of law and fact. If District Court 
discretion is not channelized by a clearly articulated method­
ology, the entire federal court system will experience the 
disaffection which accompanies violation of Cicero’s maxim 
not to “ lay down one rule in Athens and another rule in 
Rome.”

Yet the only alternative reading of today’s opinions, i. e., a 
literal reading, is even more disquieting. Such a reading 
would require embracing a novel analytical approach to school 
segregation in systems without a history of statutorily man­
dated separation of the races— an approach that would have 
dramatic consequences for urban school systems in this coun­
try. Perhaps the adjective “analytical” is out of place, since

1 See Dayton Board of Education v. Brinkman, No. 78-627 (Dayton II) 
(R ehnquist, J., dissenting).



the Court’s opinions furnish only the most superficial meth­
odology, a framework which if it were to be adopted ought to 
be examined in a far more thorough and critical manner than 
is done by the Court’s “ lick and a promise” opinions today. 
Given the similar approaches employed by the Court in this 
case and Dayton II, this case suffices for stating what I 
think are the glaring deficiencies both in the Court’s new 
framework and in its decision to subject the Columbus school 
system to the District Court’s sweeping racial balance remedy.

I
The Court suggests a radical new approach to desegregation 

cases in systems without a history of statutorily mandated 
separation of the races: if a district court concludes— employ­
ing what in honesty must be characterized as an irrebuttable 
presumption—that there was a “dual” school system at the 
time of Brown I, 347 U. S. 483 (1954) , it must find post-1954 
constitutional violations in a school board’s failure to take 
every affirmative step to integrate the system. Put differ­
ently, racial imbalance at the time the complaint is filed is 
sufficient to support a systemwide, racial balance school busing 
remedy if the district court can find some evidence of dis­
criminatory purpose prior to 1954, without any inquiry into 
the causal relationship between those pre-1954 violations and 
current segregation in the school system.

This logic permeates the findings of the District Court and 
Court of Appeals, and the latter put it most bluntly.

“ [T]he District Judge on review of pre-1954 history 
found that the Columbus schools were de jure segregated 
in 1954 and, hence, the Board had a continuing constitu­
tional duty to desegregate the Columbus schools. The 
pupil assignment figures for 1975-76 demonstrate the 
District Judge’s conclusion that this burden has not been 
carried. On this basis alone (if there were no other 

. proofs), we believe we would be required to affirm the

4 COLUMBUS BOARD OF EDUCATION v. PENICK



COLUMBUS BOARD OF EDUCATION v. PENICK 5

District Judge’s finding of present unconstitutional segre­
gation.” Penick v. Columbus Board of Education, 583 
F. 2d 787, 800 (1978).

In Brinkman v. Cilligan, 583 F. 2d 243, 256 (1978), also af­
firmed today, this post-1954 “affirmative duty” is character­
ized a duty “to diffuse black and white students” throughout 
the system.

The Court in this case apparently endorses that view. For 
the Court finds that “ [e]ach instance of a failure or refusal 
to fulfill this affirmative duty continues the violation of the 
Fourteenth Amendment,” ante, at 8, and the mere fact that 
at the time of suit “most blacks were still going to black 
schools and most whites to white schools” establishes current 
effect. Ante, at 10.

In order to fully comprehend the dramatic reorientation the 
Court’s opinion thus implies, and its lack of any principled 
basis, a brief historical review is necessary. In 1954 this 
Court announced Brown I  and struck down on equal protec­
tion grounds laws requiring or permitting school assignment 
of children on the basis of race. See also Bolling v. Sharpe, 
347 U. S. 497 (1954). The question of remedy was reserved 
for a new round of briefing, and the following Term this Court 
remanded to the district court® in the five consolidated cases 
“ to take such proceedings and enter such orders and decrees 
consistent with this opinion as are necessary and proper to 
admit to public schools on a racially nondiscriminatory basis 
with all deliberate speed the parties to these cases.”  Brown 
v. Board of Education, 349 U. S. 294, 301 (1955) (Brown II).

The majority concedes that this case does not involve racial 
assignment of students mandated by state law; Ohio aban­
doned any “statutory requirement or authorization to operate 
segregated schools” by 1888. Ante, at 5. Yet it was pre­
cisely this type of segregation— segregation expressly man­
dated or permitted by state statute or constitution-—that was 
addressed by Brown and the mandate of the Brown cases was



6 COLUMBUS BOARD OF EDUCATION v. PENICK

that “ [a] 11 provisions of federal, state, or local law requiring 
or permitting such discrimination must yield” to “ the funda­
mental principal that racial discrimination in public education 
is unconstitutional.” 349 U. S., at 298. The message of 
Brown was simple and resonant because the violation was 
simple and pervasive.

There were, however, some issues upon which the Brown 
Court was vague. It did not define what it meant by “effec- 
tuat[ing] a transition to a racially nondiscriminatory school 
system,” id., at 301, and therefore the next 17 years focused 
on the question of the appropriate remedy where racial sep­
aration had been maintained by operation of state law.

The earliest post-Brown school cases in this Court only 
intimated that “ a transition to a racially nondiscriminatory 
school system” required adoption of a policy of nondiscrim­
inatory admission.2 It was not until the 1967 Term that this

2 Cooper v. Aaron, 358 U. S. 1 (1958); Goss v. Board of Education, 373 
U. S. 683 (1963); Griffin v. School Board, 377 U. S. 218 (1964).

In discussing the Brown II  mandate, this Court in Cooper v. Aaron, 358 
U. S. 1, 7 (1958), observed:
“Of course, in many locations, obedience to the duty of desegregation 
would require the immediate general admission of Negro children, other­
wise qualified as students for their appropriate classes, at particular 
schools. On the other hand, a District Court, after analysis of the 
relevant factors (which, of course, excludes hostility to racial desegrega­
tion), might conclude that justification existed for not requiring the 
present nonsegregated admission of all qualified Negro children.”
A similar limited expectation pervades Goss v. Board of Education, 373 
U. S. 683 (1963), where this Court invalidated court-ordered desegregation 
plans which permitted transfers on the basis of race. Specifically, the 
desegregation plan called for the redrawing of school districts without 
reference to race, but explicitly authorized transfers by students of one 
race from a school where their race was a minority to a school where their 
race was a majority. There was no provision for majority-to-minority 
school transfers. This Court objected to the explicit racial character of the 
transfer program.

“ Our task then is to decide whether these transfer provisions are . . . 
unconstitutional. In doing so, we note that if the transfer provisions were



COLUMBUS BOARD OF EDUCATION v. PENICK 7

Court indicated that school systems with a history of statu­
torily or constitutionally mandated separation of the races 
would have to do more than simply permit black students to 
attend white schools and vice versa. In that Term the Court 
had before it “ freedom-of-choice” plans put forward as deseg­
regation remedies. The factual context of the lead case, 
Green v. County School Board, 391 U. S. 430 (1968), is a far 
cry from the complicated urban metropolitan system we con­
front today. The New Kent County school system consisted 
of two schools—one black and one white— with a total enroll­
ment of 1,300 pupils. At the time of suit a black student had 
never attended the white school or a white student the black 
school.

This Court found that the “ freedom-of-choice” plan ap­
proved by the District Court for the desegregation of the New 
Kent County schools was inadequate. Noting that the “ pattern 
of separate 'white* and ‘Negro’ schools in the New Kent County 
school system established under compulsion of state laws is 
precisely the pattern of segregation to which Brown I and 
Brown II  were particulary addressed,” the Court observed 
that Brown II  charged “ [sjchool boards such as the respond­
ent then operating state-compelled dual systems . . . 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.” Id., at 435, 437-438.

made available to all students regardless of their race and regardless as 
well of the racial composition of the school to which he requested transfer 
we would have an entirely different case. Pupils could then at their 
option (or that of their parents) choose, entirely free of any imposed 
racial considerations, to remain in the school of their zone or transfer to 
another.”  Id., at 687.
Griffin v. School Board, 377 U. S. 218 (1964), involved a situation where 
a school system literally closed down its schools rather than desegregate. 
The decree endorsed by this Court, in the face of massive resistance, was 
simply an order to the school board requiring it to admit students without 
regard to race to a white high school and to make plans for admissions to 
elementary schools without regard to race.



In the three years following court approval of the freedom-of- 
choice plan in New Kent County, not a single white child had 
chosen to attend the historically black school, which continued 
to serve 85% of the county’s black schoolchildren. The Green 
Court concluded that a freedom-of-choice plan, in a school 
system such as this and in the absence of other efforts at 
desegregation, was not sufficient to provide the remedy man­
dated by Brown II. The court suggested zoning, i. e., some 
variation of a neighborhood school policy, as a possible alter­
native remedy.3

That brings the history of school desegregation litigation 
in this Court to T he Chief Justice’s opinion in Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U. S. 1 
(1971), upon which the majority and respondents heavily 
rely.4 Swann also addressed school systems with a history of

3 Two other cases were handed down on the same day as Green. Raney 
v. Board of Education, 391 U. S. 443 (1968), involved an almost identical 
factual situation with a similar experience under a freedom-of-choice plan. 
For the same reasons that such a plan was inadequate for New Kent 
County, it was found inadequate for the Gould School District involved 
in the Raney litigation. The other case handed down with Green, Monroe 
v. Board of Commissioners, 391 U. S. 450 (1968), concerned the City of 
Jackson, Tenn. At issue in that case was a “ free-transfer” rather than 
“ freedom-of-choice”  plan. The “ free-transfer”  provisions were part, of a 
court-ordered plan that essentially instituted a neighborhood school policy 
for the three junior high schools in the system. Any child could transfer 
to another school if space was available, i. e., if there were no neighbor­
hood-zone residents to fill the spaces. This Court did not object to the 
neighborhood school policy as part of a remedy, even though some neigh­
borhoods were racially identifiable, but it found that the effect of the free- 
transfer policy was to maintain the racial characters of the three junior 
high schools. One remained all black and another 99% white.

4 There were two school desegregation cases heard in this Court in the 
years between Swann and Green, Alexander v. Holmes County Board of 
Education, 396 U. S. 19 (1969), reiterated that the era of “all deliberate 
speed” had ended. United States v. Montgomery County Board of Educa­
tion, 395 U. S. 225 (1969), involved an order requiring the reassignment of 
some faculty and staff of the Montgomery County school system in line 
with numerical targets set by the District Court.

8 COLUMBUS BOARD OF EDUCATION v. PENICK



COLUMBUS BOARD OF EDUCATION v. PENICK 9

statutorily or constitutionally mandated separation of the 
races; “ [t]hat was what Brown v. Board of Education was 
all about.” Id., at 6. Swann was an attempt to define “ in 
more precise terms” the appropriate scope of the remedy in 
cases of that nature. Ibid. It simply did not attempt to artic­
ulate the manner by which courts were to determine the exist­
ence of a violation in school systems without a history of segre­
gation imposed by statute or the state constitution.0 Certainly 
school systems with such a history were charged by Brown, II 
to “effectuate a transition to a racially non discriminatory 
school system.” But Swann did not speak of the failure to 
conform to this duty as a “ continuing violation.” The spe­
cific references to an affirmative duty in Swann were to the 
duty of a school board found to have overseen a school system 
with state-imposed segregation to put forward a plan to 
remedy that situation. It was in this context that the Court 
observed that upon “ 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.” Id., at 16.5 6

5 Nevertheless, the Court of Appeals refers to Swann as an opinion 
which “ dealt more thoroughly than any other opinion of the Court with 
the method of proof of constitutional violations,” 583 F. 2d, at 793, and 
relies on it throughout its opinion for standards of proof in determining 
the existence of a violation. Swann was in fact an attempt to articulate 
the “equitable remedial discretion of the District Court” which admits 
more latitude than the standards for determining a violation. 402 U. S., 
at 25; see id., at 15-16. There is no “ discretion” in the latter context.

6 Later in its opinion the Swann court refers to the District Court’s 
finding, “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.” 402 U. S., at 24.

Four other cases came down the same day as Swann. One was dis­
missed for lack of jurisdiction, Moore v. Charlotte-Mecklenburg Board of 
Education, 402 U. S. 47 (1971); one upheld a declaration that a North



10 COLUMBUS BOARD OF EDUCATION v. PENICK

This understanding of the “affirmative duty” was acknowl­
edged in the first case confronting a school system without a 
history of state-mandated racial assignment, Keyes v. School 
District No. 1, 413 U. S. 189 (1973). There the court 
observed:

“ [W ]e have held that where plaintiffs prove that a cur­
rent condition of segregated schooling exists within a 
school district where a dual system was compelled or 
authorized by statute at the time of our decision in Brown 
v. Board of Education, 347 IT. S. 483 (1954) (Brown I), 
the State automatically assumes an affirmative duty To 
effectuate a transition to a racially nondiscriminatory 
school system,’ Brown v. Board of Education, 349 U. S. 
294, 301 (1955) (Brown II) ,  see also Green v. County 
School Board, 391 U. S. 430, 437-438 (1968), that is, to 
eliminate from the public schools within their school sys­
tem 'all vestiges of state-imposed segregation.’ Swann 
v. Charlotte-Mecklenburg Board of Education, 402 U. S. 
1, 15 (1971).

“ This is not a case, however, where a statutory dual 
system has ever existed.” Id., at 200-201 (footnote 
omitted).

It was at this juncture that the Court articulated the proposi­
tion that has become associated with Keyes.

“Nevertheless, where plaintiffs prove that the school au­
thorities have carried out a systematic program of segre­
gation affecting a substantial portion of the students, 
schools, teachers, and facilities within the school system,

Carolina Anti-Busing Law was unconstitutional, North Carolina State 
Board of Education v. Swann, 402 U. S. 43 (1971); and another remanded 
a remedy order for reconsideration in light of criteria laid down in Swann, 
Davis v. Board of School Commissioners of Mobile County, 402 U. S. 33 
(1971). The final case, McDaniel v. Barresi, 402 U. S. 39 (1971), in­
validated a state-court order barring on federal grounds a formerly statu­
tory dual system’s voluntary transition to a modified neighborhood school 
policy,



COLUMBUS BOARD OF EDUCATION v. PENICK 11

it is only common sense to conclude that there exists a 
predicate for a finding of the existence of a dual school 
system.” Id., at 201.

The notion of an “ affirmative duty” as acknowledged in 
Keyes is a remedial concept defining the obligation on the 
school board to come forward with an effective desegregation 
plan after a finding of a dual system. This could not be 
clearer in Keyes itself.

“ [P]roof of a state-imposed segregation in a substantial 
portion of the district will suffice to support a finding by 
the trial court of the existence of a dual system. Of 
course, where that finding is made, as in cases involving 
statutory dual systems, the school authorities have an 
affirmative duty ‘to effectuate a transition to a racially 
nondiscriminatory school system.’ Brown II, supra, at 
301.” Id., at 203.7

Indeed, Keyes did not discuss the complexion of the Denver 
school system in 1954 or in any other way intimate the anal­
ysis adopted by the Court today.8 Rather it emphasized that 
the relevance of past actions was determined by their causal 
relationship to current racially imbalanced conditions.

Even so brief a history of our school desegregation juris­
prudence sheds light on more than one point. As a matter 
of history, case law, or logic, there is nothing to support the 
novel proposition that the primary inquiry in school desegre­
gation cases involving systems without a history of statutorily

7 The point is reiterated later in the Keyes opinion,
“ If the District Court determines that the Denver school system is a dual 
school system, respondent School Board has the affirmative duty to deseg­
regate the entire system ‘root and branch.’ ” 413 U. S., at 213.

8 In fact, this theory was pressed upon the Court in Dayton I, Brief 
for Respondents, at 58-71; yet it was implicitly rejected in this Court’s 
detailed articulation of the proper approach to equal protection challenges 
involving school systems “where mandatory segregation by law of the 
races in the schools has long since ceased.” 433 U. S., at 420.



12 COLUMBUS BOARD OF EDUCATION v. PENICK

mandated racial assignment is what happened in those sys­
tems before 1954. As a matter of history, 1954 makes no 
more sense as a benchmark— indeed it makes less sense— than 
1968, 1971 or 1973. Perhaps the latter year has the most to 
commend it, if one insists on a benchmark, because in Keyes 
this Court first confronted the problem of school segregation 
in the context of systems without a history of statutorily 
mandated separation of the races.

As a matter of logic, the majority’s decision to turn the year 
1954 into a constitutional Rubicon also fails. The analytical 
underpinnings of the concept of discriminatory purpose have 
received their still incomplete articulation in the 1970’s. It is 
sophistry to suggest that a school board in Columbus in 1954 
could have read Brown and gleaned from it a constitutional 
duty “to diffuse black students throughout the system” or 
take whatever other action the Court today thinks it should 
have taken. And not only was the school board to anticipate 
the state of the law 20 years hence, but also to have a full 
appreciation for discrete acts or omissions of school boards 20 
to 50 years earlier.9

Of course, there are always instances where constitutional 
standards evolve and parties are charged with conforming to 
the new standards. But I am unaware of a case where the 
failure to anticipate a change in the law and take remedial 
steps is labeled an independent constitutional violation. The 
difference is not simply one of characterization: the Court’s 
decision today enunciates, without analysis or explanation, 
a new methodology that dramatically departs from Keyes 
by relieving school desegregation plaintiffs from any showing 
of a causal nexus between intentional segregative actions and 
the conditions they seek to remedy.

Causality plays a central role in Keyes as it does in all equal 
protection analysis. The Keyes Court held that before the

9 As the Court notes, incidents relied on by the District Court occurred 
anywhere from 1909 to 1943.



COLUMBUS BOARD OF EDUCATION v. PENICK 13

burden of production shifts to the school board, the plaintiffs 
must prove “ that the school authorities have carried out a 
systematic program of segregation affecting a substantial por­
tion of the students, schools, teachers and facilities within the 
school system.” 413 TJ. S., at 201 (emphasis added). The 
Court recognized that a trial court might find “that a lesser 
degree of segregated schooling . . . would not have resulted 
even if the Board had not acted as it did,” and “ that at some 
point in time the relationship between past segregative acts 
and present segregation may become so attenuated as to be 
incapable of supporting a finding of de jure segregation war­
ranting judicial intervention.” Id., at 211. The relevance 
of past acts of the school board was to depend on whether 
“segregation resulting from those actions continues to exist.” 
Id., at 210.“  That inquiry is not central under the approach 
approved by the Court today. Henceforth, the question is 
apparently whether pre-1954 acts contributed in some unspec­
ified manner to segregated conditions that existed in 1954. 
If the answer is yes, then the only question is whether the 
school board has exploited all integrative opportunities that 
presented themselves in the subsequent 25 years. If not, a 
systemwide remedy is in order, despite the plaintiff’s failure 
to demonstrate a link between those past acts and current 
racial imbalance.

The Court’s use of the term “affirmative duty” implies that 
integration by the pre-eminent—indeed, the controlling—edu­
cational consideration in school board decisionmaking. It 
takes precedence over other legitimate educational objectives 
subject to some vague feasibility limitation. That implica­
tion is dramatically demonstrated in this case. Both lower 
courts necessarily gave special significance to the Columbus 
School Board’s post-1954 school construction and siting 10

10 “The essential element of de jure segregation is ‘a current condition of 
segregation resulting from intentional state action.’ ” Washington v. Davis, 
426 U. S. 229, 240 (1976) (quoting Keyes v. School District No. 1, 413 
U. S. 189, 205 (1973)).



14 COLUMBUS BOARD OF EDUCATION v. PENICK

policies as supporting the systemwide remedy in this case.11 
They did not find— in fact, could not have found—that the 
siting and construction of schools were racially motivated. 
As the District Court observed:

“ In 1950, pursuant to a request of the then Columbus 
school superintendent, the Bureau of Educational Re­
search at The Ohio State University began a comprehen­
sive, scientific and objective analysis of the school plant 
needs of the school system. The Bureau studied and re­
ported on community growth characteristics, educational 
programs, enrollment projections, the system’s plan of 
organization, the existing plant, and the financial ability 
of the community to pay for new school facilities. There­
after, a number of general and specific recommendations 
were made to the Columbus Board by the Bureau. The 
recommendations included the size and location of new 
school sites as well as additions to existing sites. The 
recommendations were conceived to accommodate the so- 
called ‘community or neighborhood school concept.’ The 
1950 concept was related to a distance criteria grounded 
on walking distance to schools as follows: %  mile for 
elementary, iy 2 miles for junior high and 2 miles for 
senior high students.

“The Board of Education adopted and relied upon the 
Bureau’s recommendations in proposing and encouraging 
the passage of bond issues in 1951, 1953, 1956, 1959 and 11

11 The reliance on school construction was critical. As the Court of 
Appeals found, the other post-1954 incidents relied on by the District 
Court were “ isolated,” 583 F. 2d, at 805, and therefore could not have 
constituted a basis for a systemwide remedy. Dayton I, 433 U. S. 406 
(1977). And the only other conduct arguably having systemwide implica­
tions, racial assignment of teachers, had been corrected, was not the subject 
of any remedial order, 429 F. Supp., at 238, 260, and, in any event, could 
not itself support the systemwide remedy under the Sixth Circuit’s own 
precedents. Higgins v. Board of Education, 508 F. 2d 779 (CA6 1974): 
see Dayton II, at 8 n. 8.



COLUMBUS BOARD OF EDUCATION v. PENICK 15

1964. School construction of new facilities and additions 
to existing structures were accomplished in substantial 
conformity with the Bureau’s periodic studies and recom­
mendations.” 429 F. Supp., at 237-238.

Thus the Columbus Board of Education employed the most 
objective criteria possible in the placement of new' schools.

Nevertheless the District Court and Court of Appeals found 
that conformity with these recommendations was a violation 
of the Equal Protection Clause because “ in some instances the 
need for school facilities could have been met in a manner 
having an integrative rather than a segregative effect.” Id., 
at 243.12 By endorsing this logic, the Court, as a result of its

12 Prefacing its discussion with the observation that “in some instances 
initial site selection and boundary changes present integrative opportuni­
ties,” 429 F. Supp., at 241, the District Court made specific findings only 
with respect to two of the 103 schools constructed between 1950 and 1975 
in the Columbus school system—Gladstone Elementary and Sixth Avenue 
Elementary—one of which does not exist today. The sites for both 
schools followed recommendations by the Bureau of Education Research 
of Ohio State University. Ohio State Bureau of Educational Research, 
The 1958-1959 Study of the Public School Building Needs of Columbus, 
Ohio 58 (1959) (Sixth Avenue); Ohio State Bureau of Educational Re­
search, The 1963-1964 Study of the Public School Building Needs of 
Columbus, Ohio 65 (1964) (Gladstone).

The Gladstone Elementary School opened in 1965. The “ violation” 
inherent in that siting is described as follows by the District Court and 
this passage is quoted and fully adopted by the Court of Appeals.

“The need for greater school capacity in the general Duxberry area 
would have been logically accommodated by the construction of Gladstone 
north of its present location, nearer to Hudson Street. This would, of 
course, require some redrawing 'of boundary lines in order to accommodate 
the need for class space in Hamilton and Duxberry. If, however, the 
boundary lines had been drawn on a north-south pattern rather than an 
east-west pattern, as some suggested, the result would have been an 
integrative effect on Hamilton, Duxberry and the newly-constructed 
school.” 429 F. Supp., at 242, quoted in 583 F. 2d, at 303.
Thus, the placement of Gladstone is a violation—not because the place­
ment was racially motivated, it was demonstrably not so—but because



16 COLUMBUS BOARD OF EDUCATION v. PENICK

finding of an affirmative duty, employs remedy standards 
to determine the existence of post-1954 violations in school 
construction and ignores the previously pivotal role of dis­
criminatory purpose.18

another site would have had a more integrative impact, and it is a viola­
tion despite the determination by the Bureau of Educational Research that 
objective and legitimate educational criteria militated in favor of the 
Gladstone site.

The secondary status of educational objectives other than integration 
is even more obvious in the discussion of the Sixth Avenue School where 
the District Court characterized the relevant inquiry as whether “the 
objectives of racial integration would have been better served”  by a dif­
ferent site and different boundaries. Id., at 243. The Sixth Avenue 
School does not exist anymore, and students within its old boundaries 
attend two neighboring, racially balanced schools.

13 This is explicitly recognized by the Court in Dayton II, at 10-11 (em­
phasis added):
“ [T]he measure of the post -Brown conduct of a school board under an 
unsatisfied duty to liquidate a dual system is the effectiveness, not the 
purpose, of the actions in decreasing or increasing the segregation caused 
by the dual system.”
But the cases relied on by the Court, ante, at 8, to establish this affirmative 
duty and its implications—Dayton I, Wright v. Council of City of Emporia, 
407 U. S. 451 (1972), and United States v. Scotland Neck Board of Educa­
tion, 407 U. S. 484 (1972)—bear absolutely no relation to the analysis 
in this case. The pages cited from Dayton I  simply endorse a Court 
of Appeals’ observation that there is nothing wrong with a school board 
rescinding resolutions it was under no duty to promulgate; as I have 
indicated, the analysis set out in Dayton I  is entirely inconsistent with the 
“ affirmative duty” invoked by the courts below. See n. 8 supra. The 
citation to Wright is equally mysterious. The city of Emporia is located 
in Greensville County, Va. Up until 1968 it was part of Greensville 
County’s public school system. A desegregation lawsuit was initiated in 
1965 and resulted in a court-ordered “ freedom-of-choice” desegregation 
plan for the Greensville County schools, including those within the city 
of Emporia. After Green the court modified its decree and ordered pair­
ing of certain schools. The city of Emporia then announced its intention 
to withdraw its schools from the Greensville County school system. The 
District Court enjoined it from doing so because Emporia’s schools had 
been part of the adjudicated dual system, and the court’s decree would be



COLUMBUS BOARD OF EDUCATION v. PENICK 17

This unprecedented “ affirmative duty” superstructure sits 
atop a weak foundation— the existence of a “ dual” school 
system in 1954. This finding was predicated on the presence 
of four predominantly black elementary schools and one pre­
dominantly black junior high school on the “near east side 
of Columbus,” a then and now black residential area. The 
Columbus School Board at that time employed, as it does now, 
a neighborhood school policy. The specific Board actions that 
the District Court cited were racial assignment of teachers 
and gerrymandering along part of the border between two 
school districts.14 The Court concludes that these violations

frustrated by withdrawal of the Emporia schools. In contrast the instant 
case has nothing to do with frustrating outstanding court orders.

United States v. Scotland Neck Board of Education, 407 U. S. 484 
(1972), was a case where the United States Department of Justice had 
been negotiating with the County School Board of Halifax County, 
North Carolina, in an attempt to bring it into compliance with federal 
law. In 1965 the schools of Halifax County were completely segregated 
on the basis of race. An agreement was reached that was designed to 
make the Halifax County school system unitary by the 1969 school year. 
However, in 1969, the North Carolina Legislature authorized a new inde­
pendent school district in the middle of Halifax County which was to be 
bounded by the city limits of Scotland Neck. The United States promptly 
filed suit seeking desegregation of the Halifax County schools and an in­
junction blocking Scotland Neck’s withdrawal. The District Court or­
dered desegregation of the Halifax County schools and enjoined creation 
of the independent Scotland Neck district. This Court held, quoting 
Wright, that if the Scotland Neck “  ‘proposal would impede the dis­
mantling of a dual system, then a district court in the exercise of its 
remedial discretion, may enjoin it from being carried out.’ ” Id., at 489. 
There is certainly no support in Scotland Neck for the analysis employed 
today, and the Court offers no explanation.

14 As the Court today acknowledges, Dayton II, at 8-9, n. 9, racial as­
signment of teachers does not make out a Keyes showing regarding racial 
assignment of students. And testimony on the existence of gerrymandering 
went little beyond the establishment of an irregular boundary line. Testi­
mony of W. A. Montgomery, App., at 389-390. Cf. Wright v. Rockefeller, 
376 U. S. 52 (1964). The District Court conceded that at the time of



18 COLUMBUS BOARD OF EDUCATION v. PENICK

involved a substantial part of the Columbus school system 
in 1954, and invokes Keyes for the proposition that the find­
ing of a dual school system follows “absent sufficient contrary 
proof by the Board, which was not forthcoming in this case.” 
Ante, at 7.

There are two major difficulties with this use of Keyes. 
First, without any explanation the Court for the first time 
applies it to define the character of a school system remote in 
time— here 25 or more years ago— without any examination 
of the justifications for the Keyes burden-shifting principles 
when those principles are used in this fashion. Their use is 
a matter of “ ‘policy and fairness,’ ” 413 U. S., at 209 (quoting 
Wigmore), and I think the Keyes “ presumption” scores poorly 
on both counts when focused on a period beyond memory 
and often beyond records.* 15 What records are available are

Brown I, there was “substantial racial mixing of both students and faculty 
in some schools” in the Columbus system. 429 F. Supp., at 236.

15 “The burdens of pleading and proof with regard to most facts have 
been and should be assigned to the plaintiff who generally seeks to change 
the present state of affairs and who therefore naturally should be expected 
to bear the risk of failure of proof or persuasion.”  McCormick on Evi­
dence 786 (2d ed. 1972).
There is a policy judgment sometimes made, which “should not be over­
emphasized,” id., at 787, that the facts on a particular issue are so pecu­
liarly within the knowledge of a certain party that the burden of proof on 
that issue should be allocated to him. Whatever the merits of the burden- 
shift to the school board where contemporaneous board decisions are at 
issue, see Keyes v. School District No. 1, 413 U. S. 189, 262-263 (1973) 
(R ehnquist, J., dissenting), they do not commend a burden-shift regard­
ing conduct 25 or more years ago.

The Court charges that in questioning the propriety of employing the 
Keyes burden-shift in this case, we “ claim a better grasp of the historical 
and ultimate facts than the two courts below had.” Ante, at 6 n. 6. But 
the Keyes burden-shift is not an ultimate finding of fact at all. It is a 
creature of this Court, brought into play by the making of only a prima 
facie showing, and applied in this case in a completely novel way. To 
criticize its use is not to upset “ factfinding,” but to criticize the absence of 
findings of fact which have heretofore been thought necessary in order to



COLUMBUS BOARD OF EDUCATION v. PENICK 19

equally available to both sides. In this case the District 
Court relied almost exclusively on instances that occurred 
between 1909 and 1943: undoubtedly beyonu the period when 
many Board members had their experiences with the system 
as students, let alone as administrators. It is much more 
difficult for school board authorities to piece together the 
influences that shaped the racial composition of a district 
20, 30, or 40 years ago. The evidence on both sides becomes 
increasingly anecdotal. Yet the consequences of the School 
Board’s inability to make such a showing only become more 
dramatic. Here violations with respect to five schools, only 
three of which exist today, occurring over 30 years ago are the 
key premise for a systemwide racial balance remedy involving 
172 schools—most of which did not exist in 1950.16

M y second concern about the Court’s use of the Keyes pre­
sumption may render my first concern academic. For as I 
suggest in Part III below, the Court today endorses views 
regarding the neighborhood school policy and racially iden­
tifiable neighborhoods that essentially makes the Keyes 
presumption irrebuttable.

II
The departure from established doctrines of causation and 

discriminatory purpose does not end with the lower courts’ 
preoccupation with an “ affirmative duty” exhumed from the 
conduct of past generations to be imposed on the present 
without regard to the forces that actually shaped the current

support the sort of remedy imposed by the District Court. Its use here 
is surely no less a subject for this Court’s review than it was in Keyes 
itself.

16 The Columbus school system has changed dramatically in the last 25 
years. The city grew from 40 square miles in 1950 to 173 square miles in 
1975 and its student enrollment more than doubled. Many of the system’s 
schools serve areas that were undeveloped in 1950. One hundred and three 
new school buildings were added during this period and 145 additions 
were made to existing buildings. On average, over 100 new classrooms 
were built each year.



racial imbalance in the school system. It is also evident in 
their examination of post-1954 violations, which the Court 
refers to as “ the intentionally segregative use of optional at­
tendance zones, discontiguous attendance areas, and boundary 
changes.”  Ante, at 10-11 (footnotes omitted).

As a preliminary matter I note that the Court of Appeals 
observed, I think correctly, that these post-1954 incidents 
“ can properly be classified as isolated in the sense that they 
do not form any systemwide pattern.” 583 F. 2d, at 805. 
All the incidents cited, let alone those that can meet a prop­
erly applied segregative intent standard, could not serve as the 
basis for a systemwide racial balance remedy.

In Washington v. Davis, 426 U. S. 229 (1976), Village of 
Arlington Heights v. Metropolitan Housing Development 
Corp., 429 U. S. 252 (1977), and Personnel Administrator of 
Massachusetts v. Feeney, No. 78-233 (1979), we have em­
phasized that discriminatory purpose as a motivating factor 
in governmental action is a critical component of an equal 
protection violation. Like causation analysis, the discrimina­
tory purpose requirement sensibly seeks to limit court inter­
vention to the rectification of conditions that offend the 
Constitution— stigma and other harm inflicted by racially 
motivated governmental action— and prevent unwarranted 
encroachment on the autonomy of local governments and pri­
vate individuals which could well result from a less structured 
approach.

This Court has not precisely defined the manner in which 
discriminatory purpose is to be proved. Indeed, in light of 
the varied circumstances in which it might be at issue, simple 
and precise rules for proving discriminatory purpose could not 
be drafted. The focus of the inquiry in a case such as this, 
however, is not very difficult to articulate : Is a desire to sep­
arate the races among the reasons for a school board’s decision 
or particular course of action? The burden of proof on this 
issue is on the plaintiffs. Washington v. Davis, supra, at

20 COLUMBUS BOARD OF EDUCATION v. PENICK



COLUMBUS BOARD OF EDUCATION v. PENICK 21

244-245; Village of Arlington Heights v. Metropolitan Hous­
ing Development Corp., supra, at 270.

The best evidence on this score would be a contemporaneous 
explanation of its action by the school board, or other less 
dramatic evidence of the board’s actual purpose, which indi­
cated that one objective was to separate the races. See Vil­
lage of Arlington Heights, supra, at 268., Objective evidence 
is also probative. Indeed, were it not this case would warrant 
very little discussion, for all the evidence relied on by the 
courts below was of an “objective” nature.

But objective evidence must be carefully analyzed for it 
may otherwise reduce the “discriminatory purpose” require­
ment to a “ discriminatory impact” test by another name. 
Private and governmental conduct in matters of general im­
portance to the community is notoriously ambiguous, and for 
objective evidence to carry the day it must be a reliable index 
of actual motivation for a governmental decision—at least 
sufficient to meet the plaintiff’s burden of proof on purpose or 
intent. We have only recently emphasized:

“ ‘Discriminatory purpose’ . . . implies more than intent 
as volition or intent as awareness of consequences . . . .  
It implies that the decisionmaker . . . selected or re­
affirmed a particular course of action at least in part 
‘because of,’ not merely ‘in spite of,’ its adverse affects 
upon an identifiable group.” Personnel Administrator 
of Massachusetts v. Feeney, supra, at 21-22.

The maintenance of this distinction is important: both to 
limit federal courts to their constitutional missions and to 
afford school boards the latitude to make good-faith, color­
blind decisions about how best to realize legitimate educa­
tional objectives without extensive post-hoc inquiries into 
whether integration would have been better served— even at 
the price of other educational objectives—by another deci­
sion : a different school site, a different boundary or a different 
organizational structure. In a school system with racially



imbalanced schools, every school board action regarding con­
struction, pupil assignment, transportation, annexation and 
temporary facilities will promote integration, aggravate segre­
gation or maintain segregation. Foreseeability follows from 
the obviousness of that proposition. Such a tight noose on 
school board decisionmaking will invariably move government 
of a school system from the town hall to the courthouse.

The District Court in this case held that it was bound by 
the standard for segregative intent articulated by the Sixth 
Circuit Court of Appeals in Oliver v. Michigan State Board of 
Education, 508 F. 2d 178, 182 (CA6 1974):

“A presumption of segregative purpose arises when 
plaintiffs establish that the natural, probable, and fore­
seeable result of public officials’ action or inaction was an 
increase or perpetuation of public school segregation. 
The presumption becomes proof unless defendants affirm­
atively establish that their action or inaction was a 
consistent and resolute application of racially neutral 
policies.” 429 F. Supp., at 254 n. 3.

This is precisely the type of “ impact” trigger for shifting the 
burden of proof on the intent component of an equal protec­
tion violation that we rejected in Washington v. Davis, supra. 
There the Court of Appeals had applied the standards of 
Title VII to determine whether a qualifying test for police 
candidates discriminated against blacks in violation of the 
Equal Protection Clause. According to the Court of Appeals, 
the plaintiffs were initially required to show disproportionate 
impact on blacks.17 That impact was a constitutional viola­

22 COLUMBUS BOARD OF EDUCATION v. PENICK

17 To add the word “ foreseeable” does not change the analysis, because 
the police department in Davis would be hard pressed to say that the 
disparate impact of the exam was unforeseeable. It is well documented 
that minorities do not perform as well as Anglos on standardized exams— 
principally because of cultural and socioeconomic differences. The Davis 
Court implicitly recognized that the impact in that and similar cases was



COLUMBUS BOARD OF EDUCATION v. PENICK 23

tion absent proof by the defendants that the test was “an 
adequate measure of job performance in addition to being an 
indicator of probable success in the training program.” Id., 
at 237. Put differently, the defendants were to show that the 
test was the product of a racially neutral policy. This Court 
reversed, rejecting “ the view that proof of discriminatory 
racial purpose is unnecessary in mating out an equal protec­
tion violation.” Id., at 245.

Indeed, reflection indicates that the District Court’s test 
for segregative intent in Columbus is logically nothing more 
than the affirmative duty stated a different way. Under the 
test a “ presumption of segregative purpose arises when plain­
tiffs establish that the natural, probable, and foreseeable result 
of public officials’ . . . inaction was . . . perpetuation of 
public school segregation. The presumption becomes proof 
unless defendants affirmatively establish that their . . . in­
action was a consistent and resolute application of racially 
neutral policies.” If that standard were to be applied to the 
average urban school system in the United States, the impli­
cations are obvious. Virtually every urban area in this coun­
try has racially and ethnically identifiable neighborhoods, 
doubtless resulting from a melange of past happenings 
prompted by economic considerations, private discrimination, 
discriminatory school assignments, or a desire to reside near 
people of one’s own race or ethnic background. See Austin 
Independent School District v. United States, 429 U. S. 990, 
994 (1976) (Powell, J., concurring). It is likewise true 
that the most prevalent pupil assignment policy in urban 
areas is the neighborhood school policy. It follows inexorably 
that urban areas have a large number of racially identifiable 
schools.

Certainly “ public officials’ . . . inaction . . . perpetuates . . . 
public school segregation” in this context. School authorities 
could move to pairing, magnet schools or any other device

foreseeable. 426 U. S., at 248, and n. 14. See Personnel Administrator of 
Massachusetts, No. 78-233, at 21-22 (1979).



to integrate the races. The failure to do so is a violation 
under Oliver unless the “ inaction was a consistent and reso­
lute application of racially neutral policies.” The policy that 
most school boards will rely on at trial, and the policy which 
the Columbus School Board in fact did rely on, is the neigh­
borhood school policy. According to the District Court in 
this case, however, not only is that policy not a defense, but 
in combination with racially segregated housing patterns, it 
is itself a factor from which one can infer segregative intent 
and a factor in this case from which the District Court did 
infer segregative intent, stating that “ [tjhose who rely on 
it as a defense to unlawful school segregation fail to recognize 
the high priority of the constitutional right involved.” 429 
F. Supp., at 258.

But the Constitution does not command that school boards 
not under an affirmative duty to desegregate follow a policy 
of “ integration liber alles.” If the Court today endorses that 
view, and unfortunately one cannot be sure, it has wrought 
one of the most dramatic results in the history of public edu­
cation and the Constitution. A duty not to discriminate in 
the School Board’s own actions is converted into a duty to 
ameliorate or compensate for the discriminatory conduct of 
other entities and persons.

I reserve judgment only because the Court at points in its 
opinion seems of the view that the District Court applied a 
test other than the Oliver test for segregative intent, despite 
the District Court’s clear indication to the contrary. 429 F. 
Supp., at 253-254, n. 3. In fact, in Dayton I I , at 8-9, n. 9, the 
Court expressly rejects the Oliver test, and in its opinion in 
this case, ante, at 14, indicates that the District Court treated 
foreseeable effects as only another bit of evidence and finds 
that not incompatible with this Court’s prior cases.

“Those cases do not forbid 'the foreseeable effects stand­
ard from being utilized as one of the several kinds of 
proofs from which an inference of segregative intent may

24 COLUMBUS BOARD OF EDUCATION v. PENICK



COLUMBUS BOARD OF EDUCATION v. PENICK 25

be properly drawn.’ Id., at 255. Adherence to a partic­
ular policy or practice, ‘with full knowledge of the pre­
dictable effects of such adherence upon racial imbalance 
in a school system is one factor among many others which 
may be considered by a court in determining whether an 
inference of segregative intent should be drawn.’ Ibid."

I have no difficulty with the proposition that foreseeable ef­
fects are permissible considerations “ as one of the several kinds 
of proofs” as long as they are not the only type of proof. Use 
of foreseeable effects in the latter fashion would be clearly in­
consistent with Davis, Arlington Heights, and Feeney. But 
I do have great difficulty with this Court’s taking the above 
quotations from the District Court out of context and thereby 
imputing a general test for discriminatory purpose to the Dis­
trict Court from a passage which in fact was part of a dis­
cussion of the probativeness of a very special kind of evidence 
on intent: a neighborhood school policy simpliciter,18 As far as

18 Specifically, the District Court prefaced its discussion of the neighbor­
hood school policy with the following question:
“ If a board of education assigns students to schools near their homes pur­
suant to a neighborhood school policy, and does so with full knowledge of 
segregated housing patterns and with full understanding of the foreseeable 
racial effects of its actions, is such an assignment policy a factor which may 
be considered by a court in determining whether segregative intent exists? 
A majority of the United States Supreme Court has not directly answered 
this question regarding non-racially motivated inaction.”  429 F. Supp., 
at 254 (emphasis added).
Before today I would have thought that the question whether nonracially 
motivated inaction was probative on discriminatory purpose would answer 
itself with an emphatic “no.” We have to date indicated that only racially 
motivated governmental decisionmaking is addressed by the Equal Pro­
tection Clause. It was in the course of reasoning to an affirmative answer 
to this question that the District Court made the first observation quoted 
by the Court, i. e., that the foreseeable effects of nonracially motivated 
inaction is probative on segregative intent. And the second quotation lifts 
the District Court’s conclusion on this issue out of context.
“Substantial adherence to the neighborhood school concept with full knowl-



26 COLUMBUS BOARD OF EDUCATION v. PENICK

gauging the purpose underlying specific actions is concerned, 
it is quite clear from its expression and application of the 
relevant test for intent, that the District Court looked for 
foreseeability per se.* 19

As such, the District Court’s treatment of specific post-1954 
conduct reflects the same cavalier approach to causality and 
purpose that underlies the 1954 affirmative duty. That de­
termination requires no more “ omnipotence and omniscience,” 
ante, at 6-7, n. 6, than similar determinations in Dayton I, 
Davis, and Arlington Heights. The court found violations with 
respect to three optional attendance zones. The Near-Bexley 
zone, the only zone discussed by this Court, afforded students 
the option to attend schools in either one of two bordering dis­
tricts. The District Court found that the zone gave white stu­
dents of Bexley the opportunity to avoid attending the predom­
inantly black schools to the east. I do not think that the 
District Court finding can be said to be clearly erroneous despite 
the lack of any direct evidence on discriminatory purpose, for 
the school board did not suggest any educational justification 
for this zone and none is apparent. But as that court recog­
nized, the zone is of little significance as far as the courrent state

edge of the predictable effects of such adherence upon racial imbalance in 
the school system is one factor among many others which may be con­
sidered by a court in determining whether an inference of segregative intent 
should be drawn.” Id., at 255 (emphasis added).
Thus the interesting proposition, worthy of Lewis Carroll at his best, that 
a lack oj discriminatory purpose will not by itself support an inference of 
discriminatory purpose.

19 In its general discussion of discriminatory intent or purpose, the Dis­
trict Court defines the relevant test as follows:

“The intent contemplated as necessary proof can best be described as 
it is usually described—intent embodies the expectations that are the 
natural and probable consequences of one’s act or failure to act. That is, 
the law presumes that one intends the natural and probable consequences 
of one’s actions or inactions.” 429 F. Supp., at 252.
See id., at 253-254 n. 3.



COLUMBUS BOARD OF EDUCATION v. PENICK 27

of segregation in the school system is concerned. “ The July 10, 
1972, minutes of the State Board of Education . . . appear to 
indicate that in 1972, there were 25 public elementary school 
students and two public high school students redding in the 
optional zone.”  429 F. Supp., at 245 (emphasis added). As 
of 1975 the zone has been dismantled, and the District Court 
clearly suggests that it does not have any current effect on the 
Columbus school system.20

Two other optional attendance zones were identified as offen­
sive. One existed for two years, between 1955 and 1957, and 
permitted students in a predominantly white neighborhood to 
attend the “ white” West Broad Elementary school rather 
than the predominantly black Highland school. Like the 
Near-Bexley option, there is no apparent educational justifi­
cation and, therefore, no grounds to upset the District Court’s 
finding of a violation. This optional zone afforded the Dis­
trict Court an excellent opportunity to probe the effects of a 
past violation, because in 1957 the optional zone was made 
a permanent part of the West Broad district. But the Dis­
trict Court made no findings as to the current effect of the 
past violation nor saw fit to hypothesize how many students 
might have been affected. It was clearly of the opinion that 
no such inquiry was necessary.

The final optional attendance zone demonstrates the in­
fluence of the “ affirmative duty”—whether the 1954 variety or 
that which follows from Oliver. This optional zone was also 
created in 1955 in roughly the same part of Columbus. It 
gave some students within Highland’s boundaries the option 
of attending the neighboring West Mound Street Elementary 
School. Again, the District Court found, this permitted trans­

20 429 F. Supp., at 245:
“The Court is not so concerned with the numbers of students who 

exercised or could have exercised this option, as it is with the light that 
the creation and maintenance of the option sheds upon the intent of the 
Columbus Board of Education.”



fer to a “ whiter” school. But the District Court also found 
that there was a legitimate educational objective for creation 
of the zone: Highland was overcrowded and West Mound was 
under capacity. The District Court, however, concluded that 
the School Board’s actions were objectionable because “ feasible 
alternatives” were available; that is, other optional attend­
ance zones could have been drawn which would have had “ an 
integrative effect on West Mound.” This again suggests a 
duty on the School Board to select the most integrative 
alternative.

The second set of post-1954 actions faulted by the District 
Court were two discontiguous attendance areas. These were 
situations where students in a defined geographical area were 
assigned to a school in a zone not contiguous with their neigh­
borhood. One zone was established in 1963 and involved 
about 70 students. The School Board unsuccessfully argued 
at trial that the children were sent to the predominantly white 
Moler Elementary School because the nearest school, the pre­
dominantly black Alum Crest Elementary, had no room for 
them. The District Court indicates that this violative condi­
tion existed until 1969, presumably because after that date the 
discontiguous area had a substantial black population and an 
integrative effect on the Moler Elementary School. Since the 
discontiguous area now has an integrative effect, one might 
ask what is its current segregative effect on the school system? 
Ironically, under the District Court’s reasoning, it would be a 
violation for the Columbus School Board to now disband the 
Moler Elementary discontiguous attendance area.

The second discontiguous zone existed from 1957 to 1963 
and permitted students on three streets within the Heimandale 
Elementary district to attend the “ whiter” Fornof Elementary 
School. The Columbus School Board “ inherited” this dis­
contiguous attendance arrangement when it annexed the 
Marion-Franklin District in 1957. Both schools at that time 
were at or over capacity and wiien a six classroom addition

28 COLUMBUS BOARD OF EDUCATION v. PENICK



COLUMBUS BOARD OF EDUCATION v. PENICK 29

was made to Heimandale in 1963, the discontiguous zone was 
terminated and the children assigned to Heimandale. Ac­
cording to the HEW Civil Rights Survey, Heimandale today 
is a racially balanced school. App., at 747. The District 
Court made no findings as to the current effect of the Board’s 
five-year retention of the Heimandale-Fornof arrangement.

The last discrete violation discussed by the District Court 
involved the Innis-Cassady alternative organizational pro­
posals. These proposals involved an area of the Columbus 
School District that was annexed in 1971. The area had one 
school, the Cassady Elementary School, which was very over­
crowded, and placing another school in the district was a 
priority for the Columbus School Board in 1972. The Dis­
trict Court did not fault the site chosen for the second school 
in the old Mifflin District. However, it inferred segregative 
intent in the School Board’s decision to use a K -6 organization 
in both schools, rather than using K -3  organization in one 
school and 4-6 organization in the other and thereby drawing 
students from throughout the district. The District Court 
found that the latter would have been the more integrative 
alternative because of residential segregation in the District. 
At trial the School Board attempted to justify its choice by 
pointing out that the pairing alternative would have required 
substantial transportation and a deviation from the standard 
K -6 organization employed throughout the Columbus school 
system. The court found “ no evidence in this record” that 
pairing would have necessitated “ substantial transportation” 
and that the Board had on prior occasions used a K -3  struc­
ture—apparently a reference to the K -3 primary center for 
crippled children.21

Thus the Innis-Cassady discussion evinces this same affirm­

21 There were apparently only two other instances where the Columbus 
School Board has had K-3 primary units and both of those were to 
supplement overcrowding in the lower grades of K -6 home schools. 429 
F. Supp., at 249.



30 COLUMBUS BOARD OF EDUCATION v. PENICK

ative duty to select the more integrative alternative and a 
consequent shift of the burden of proof to the School Board 
to prove that the segregative choice was mandated by other 
legitimate educational concerns. But under Washington v. 
Davis, supra, and Arlington Heights, supra, the burden is on 
the plaintiffs to show impact and purpose and in a situation 
where there is “ no evidence” in the record to prove or disprove 
a proffered justification for a School Board decision, the plain­
tiffs have failed to establish a violation of their constitutional 
rights.

Secondly, the fact that a School Board has once or twice 
or three times in the past deviated from a policy does not 
impugn that policy as a justification for a School Board deci­
sion. There is no constitutional requirement of perfect con­
sistency. Arlington Heights, supra, at 269. The fact that 
the Columbus School Board currently maintains a K -3 orga­
nization for crippled children hardly diminishes the Board’s 
interest in maintaining a standard organizational structure 
for traditional schools throughout the school district.22 
Rather in Arlington Heights we spoke of substantive depar­
tures from existing policy as casting light on discriminatory 
purpose, “ particularly if the factors usually considered impor­
tant by the decisionmaker strongly favor a decision contrary 
to the one reached.” Id., at 267.

Thus it is clear that with respect to a number of the post- 
1954 actions that the District Court found to be independent 
violations, foreseeability was not one kind of evidence, but 
the whole ball game— whether the District Court thought that 
result dictated by the Oliver test or the post-1954 “ affirmative

22 There is substantial discussion in the District Court’s opinion about 
various groups that gave the Columbus School Board notice that certain 
decisions would have a segregative rather than integrative impact. 429 
F. Supp., at 255-256. But notice in and of itself only goes so far as to 
establish foreseeability, and foreseeability itself is not the ultimate fact in 
issue if we continue to adhere to Davis and Arlington Heights.



duty” purportedly imposed as a result of pre-1954 conduct. 
Those findings that could be supported by the concept of dis­
criminatory purpose propounded in Davis and Arlington 
Heights were not accompanied by any effort to link those 
violations with current conditions of segregation in the school 
system. In sum, it is somewhat misleading for the Court to 
refer to these actions as in some sense independent of the 
constitutional duty it suggests that the Columbus Board as­
sumed in 1954. And, in any event, the small number of stu­
dents involved in these instances could not independently 
support the sweeping racial balance remedy imposed by the 
District Court. Cf. Dayton I, 433 U. S. 406 (1977).

I l l
The casualness with which the District Court and Court 

of Appeals assumed that past actions of the Board had a 
continuing effect on the school system, and the facility and 
doctrinal confusion with which they went from these actions 
to announce a “ systemwide violation” undermine the basic 
limitations on the federal court’s authority. If those viola­
tions are not the product of a careful inquiry of the impact on 
the current school system, if they are reaction to taint or 
atmosphere rather than identifiable conditions that would not 
exist now “ but for” the constitutional violation, there are 
effectively no limits on the ability of federal courts to sup­
plant local authority. Only two Terms ago, in Dayton / ,  433 
U. S., at 420, we set out the basic line of inquiry that should 
govern school desegregation litigation:

“ The duty of both the District Court and the Court 
of Appeals in a case such as this, where mandatory segre­
gation by law of the races and the school has long since 
ceased, is to first determine whether there was any action 
in the conduct of the business of the school board which 
was intended to, and did in fact, discriminate against 
minority pupils, teachers, or staff. Washington v. Davis,

COLUMBUS BOARD OF EDUCATION v. PENICK 31



supra. All parties should be free to introduce such addi­
tional testimony and other evidence as the District Court 
may deem appropriate. If such violations are found, the 
District Court in the first instance, subject to review by 
the Court of Appeals, must determine how much incre­
mental segregative effect these violations had on the 
racial distribution of the Dayton school population as 
presently constituted, when that distribution is compared 
to what it would have been if the absence of such consti­
tutional violations. The remedy must be designed to 
redress that difference, and only if there has been a sys­
temwide impact may there be a systemwide remedy. 
Keyes, 413 U. S., at 213.”

See also School District of Omaha v. United States, 433 U. S. 
667 (1977); Brennan v. Armstrong, 433 U. S. 672 (1977).

The District Court made no attempt to determine the 
incremental segregative effects of identified violations; given 
the absence of.causality considerations in the court’s findings, 
it was simply not in a position to do so.23 To distinguish

23 Dayton I  was handed down after the liability phase of this case. It 
was brought to the District Court's attention while it was considering the 
remedy, and the District Court dismissed it as simply reiterating the 
maxim that “ the nature of the violation determines the scope of the 
remedy.” Certainly Dayton I  was a much more precise articulation of 
what implementing that maxim entailed than is found in this Court’s prior 
cases. And the Court of Appeals explanation of “ incremental segregative 
effect”  in this case communicates no clear conception of the type of in­
quiry into causation that Dayton I requires.

“ It is clear to us that the phrases ‘incremental segregative effect’ and 
‘systemwide impact’ employed in the Dayton case require that the question 
of systemwide impact be determined by judging segregative intent and 
impact as to each isolated practice, or episode. Each such practice or 
episode inevitably adds its own ‘increment’ to the totality of the impact 
of segregation. Dayton does not, however, require each of fifty segrega­
tive practices or episodes to be judged solely upon its separate impact on 
the system. The question posed concerns the impact of the total amount 
of segregation found—after each separate practice or episode has added its

32 COLUMBUS BOARD OF EDUCATION v. PENICK



Dayton I  the majority relies on the District Court’s conclu­
sion that its “ findings of liability in this case concerns the 
Columbus school district as a whole.” 429 F. Supp., at 266. 
But incantation is not a substitute for analysis and the Dis­
trict Court’s findings and analysis do not support its conclusion.

But the majority’s opinion takes on its most delusive 
air when the Court suggests that the scope of the remedy is 
the Board’s own fault.

“ [T ]he Board was given ample opportunity to counter 
the evidence of segregative purpose and current, system- 
wide impact, and the finding of the courts below were 
against it in both respects.” Ante, at 17.

Specifically, the Court is alluding to the Board’s purported 
failure to show that the violation was not systemwide under 
Keyes or that a more limited remedy should have been applied 
under Swann, In fact, the logic of the District Court, appar­
ently endorsed by the Court today, turns the Swann and 
Keyes showings into chimeras.

Once a showing is made that the District Court believes 
satisfies the Keyes requirement of purposeful discrimination 
in a substantial part of the school system, the school board 
will almost invariably rely on its neighborhood school policy 
and residential segregation to show that it is not responsible 
for the existence of certain predominantly black and white 
schools in other parts of the school system. Under the Dis­

‘increment’ to the whole. It was not just the last wave which breached 
the dike and caused the flood.”  583 F. 2d, at 813-814 (emphasis in 
original).
In Brinkman v. Gilligan, 583 F. 243, 257 (1978), the court’s description 
becomes metaphysical.
“The word ‘incremental’ merely describes the manner in which segregative 
impact occurs in a northern school case where each act, even if minor in 
itself, adds incrementally to the ultimate condition of segregated schools. 
The impact is ‘incremental’ in that it occurs gradually over the years 
instead of all at once as in a case where segregation was mandated by a 
state statute or a provision of a state constitution.”

COLUMBUS BOARD OF EDUCATION v. PENICK 33



34 COLUMBUS BOARD OF EDUCATION v. PENICK

trict Court’s reasoning, as I have noted, not only is that evi­
dence not probative on the Board’s lack of responsibility, it 
itself supports an inference of a constitutional violation. In 
addition, the District Court relied on a general proposition that 
“ there is often a substantial reciprocal effect between the color 
of the school and the color of the neighborhood it serves” to 
block any inquiry into whether racially identifiable schools 
were the product of racially identifiable neighborhoods or 
whether past discriminatory acts bore a “but for” relationship 
to current segregative conditions.'24

“ It is not now possible to isolate these factors and draw 
a picture of what Columbus schools or housing would 
have looked like today without the other’s influence. I 
do not believe that such an attempt is required.

“I do not suggest that any reasonable action by the 
school authorities could have fully cured the evils of resi­
dential segregation. The Court could not and would not. 
impose such a duty upon the defendants. I do believe, 
however, that the Columbus defendants could and should 
have acted to break the segregative snowball created by 
their interaction with housing. That is, they could and

24 This empirical observation was not the product of evidence about 
Columbus, but general opinions expressed by two experts, Dr. Karl 
Taeuber and Martin Sloane; the latter testified on federal housing policy 
in the United States. As M r . Justice Powell has noted, experts have 
found that residential segregation exists “ ‘regardless of the character of 
local laws and policies, and regardless of the extent of other forms of segre­
gation or discrimination.’ ” Keyes v. School No. 1, 413 U. S. 189, 223 n. 9 
(1973) (Powell, J., concurring in part and dissenting in part) (quoting 
Dr. Karl Taeuber).

Dr. Taeuber credited residential segregation to economics, choice and 
discrimination. In the latter category he included racially motivated 
site selection in public housing and urban renewal programs, restrictive 
covenants in housing deeds, lending policies of financial institutions, prac­
tices of the real estate industry, and zoning policies. Entering into all of 
this is some unspecified manner is the influence of school attendance zones. 
Testimony of Dr. Karl Taeuber, App., at 280-311.



COLUMBUS BOARD OF EDUCATION v. PENICK 35

should have acted with an integrative rather than a segre­
gative influence upon housing; they could and should 
have been cautious concerning the segregation influences 
that are exerted upon the schools by housing. They cer­
tainly should not have aggravated racial imbalance in the 
schools by their official actions.” 429 F. Supp., at 259 
(emphasis added).

But as the District Court recognized, other factors play an 
important role in determining segregated residential patterns.

“Housing segregation has been caused in part by fed­
eral agencies which deal with financing of housing, local 
housing authorities, financial institutions, developers, 
landlords, personal preferences of blacks and whites, real 
estate brokers and salespersons, restrictive covenants, 
zoning and annexation, and income of blacks as com­
pared to whites.”  Ibid.

The Swarm Court cautioned that “ [t]he elimination of racial 
discrimination in public schools is a large task and one that 
should not be retarded by efforts to achieve broader purposes 
lying beyond the jurisdiction of school authorities. One vehi­
cle can carry only a limited amount of baggage.” 402 U. S., 
at 22. Yet today the School Board is called to task for all the 
forces beyond their control that shaped residential segregation 
in Columbus. There is thus no room for Keyes or Swann 
rebuttal either with respect to the school system today or 
that of 30 years ago.

IY
I do not suggest that the inquiry required by Dayton I  and 

Keyes is a simple one, and reviewing courts must defer to the 
findings of District Court judges. But appellate courts also 
must ensure that these judges are asking themselves the right 
questions: it is clear in the instant case that critical questions 
regarding causality and purpose were not asked at all. The 
city of Columbus has changed enormously in the last 25 years



36 COLUMBUS BOARD OF EDUCATION v, PENICK

and with it the racial character of many neighborhoods. Inci­
dents related here may have been paved over by years of 
private choice as well as undesirable influences beyond the 
control of school authorities, influences such as poverty and 
housing discrimination, both public and private. Expert tes­
timony should play an important role in putting together the 
demographic history of a city and the role of a school board 
in it. I do not question that there were constitutional viola­
tions on the part of the Columbus School Board in the past, 
but there are no deterrence or retribution components of the 
rationale for a school desegregation remedy. The fundamen­
tal mission of such remedies is to restore those integrated 
educational opportunities that would now exist but for pur­
posefully discriminatory school board conduct. Because crit­
ically important questions were neither asked nor answered 
by the lower courts, the record before us simply cannot inform 
as to whether so sweeping a remedy as that imposed is 
justified.

At the beginning of this dissent, far too many pages ago, 
I suggested that the Court’s opinion may only communicate 
a “hands-off” attitude in school desegregation cases and that 
my concerns should therefore be institutional rather than 
doctrinal. School desegregation cases, however, will certainly 
be with this Court as long as any of its current Members, and 
I doubt the Court can for long, like Pilate, wash its hands of 
disparate results in cases throughout the country.

It is most unfortunate that the Court chooses not to speak 
clearly today. Dayton I  and Keyes are not overruled, yet 
their essential messages are ignored. The Court does not 
intimate that it has fathomed the full implications of the 
analysis it has sanctioned— an approach that would certainly 
make school desegregation litigation a “ loaded game board,” 
Swann, supra, at 28, but one at which a school board could 
never win. A school system’s only hope of avoiding a judicial



COLUMBUS BOARD OF EDUCATION v. PENICK 37

receivership would be a voluntary dismantling of its neighbor­
hood school program. If that is the Court’s intent today, it 
has indeed accepted the role of Judge Learned Hand’s feared 
“Platonic Guardians” 26 and intellectual integrity—if not the 
Constitution or the interests of our beleaguered urban school 
systems and their students of all races—would be better served 
by discarding the pretextual distinction between de facto and 
de jure segregation. Whether the Court’s result be reached 
by the approach of Pilate or Plato, I cannot subscribe to it.

26 L. Hand, The Bill of Rights 73 (The Oliver Wendell Holmes Lec­
tures, 1958):
“For myself it would be most irksome to be ruled by a bevy of Platonic 
Guardians, even if I knew how to choose them, which I assuredly do not. 
If they were in charge, I should miss the stimulus of living in a society 
where I have, at least theoretically, some part in the direction of public 
affairs.”