Shelby County v. Holder Brief of Amici Curiae

    No. 89-1080

In T he

j^ujirpmp Qlmtrt ot tl|? IlntlTit §>taiP0
October Term, 1989

T he Board of Education of Oklahoma City 
Public Schools, Independent School District 

No. 89, Oklahoma County, Oklahoma,
Petitioner,

v.

Robert L. Dowell, et al,
Respondents.

On Writ of Certiorari to the' 
United States Court of Appeals 

for the Tenth Circuit

BRIEF OF THE DEKALB COUNTY BOARD OF 
EDUCATION AS: AMICUS CURIAE 

IN SUPPORT OF PETITIONER

Gary M. Sams 
Charles L. Weatherly 
J. Stanley Hawkins 

Weekes & Candler 
One Decatur Town Center 
Suite 300
Decatur, Georgia 30031 
(404) 378-4300

Rex E. Lee *
Carter G. Phillips 
Mark D. Hopson 
Nancy A. Temple 

Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

Counsel for DeKalb County Board of Education, 
As Amicus Curiae in Support of Petitioner

June 1,1990 * Counsel of Record

W i l s o n  - Ep e s  P r i n t i n g  C o . ,  In c . - 789-0096 - W a s h i n g t o n , D .C . 20001



QUESTIONS PRESENTED

Amicus curiae will address the following questions:
1. Whether the legal standards for modification of 

antitrust decrees imposed upon private parties as enunci­
ated in United States v. Swift & Co., 286 U.S. 106 
(1932), that a decree may be modified only upon a show­
ing of “ grievous harm” and that the dangers warranting 
an injunction have become “ attenuated to a shadow” is 
the proper rule for modification of a school desegregation 
decree.

2. Whether under the Fourteenth Amendment a federal 
court may refuse to dissolve a school desegregation decree 
once local school authorities have established that the 
school system has become unitary and that there is no 
causal relationship between the prior constitutional viola­
tion and any current conditions in the school system.

(i)





TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ...... ...... ....................... -....  i

TABLE OF AUTHORITIES ..........................................  iv

INTEREST OF AMICUS CURIAE __.................. ..........  1

STATEMENT .......... ....... ............. -............ -................. -  4

SUMMARY OF ARGUMENT .......................................  10

ARGUMENT ...........    12

I. THE COURT1 BELOW ERRED IN INCORPO­
RATING STANDARDS FROM ANTITRUST 
LAW TO DETERMINE WHETHER TO 
MODIFY OR VACATE AN INJUNCTION IN
A SCHOOL DESEGREGATION CASE.......... 12

II. THE DEMANDS OF THE EQUAL PROTEC­
TION CLAUSE PROVIDE THE PROPER 
RULE FOR DETERMINING WHETHER AN 
INJUNCTIVE DECREE AGAINST LOCAL 
SCHOOL AUTHORITIES SHOULD BE CON­
TINUED ............      20
A. A Federal Court’s Equitable Discretion To

Impose, Modify Or Vacate An Injunction 
Structuring The Operations Of Local School 
Districts Must Be Informed By The Respect 
For Local Autonomy Embodied In Our Fed­
eralism .................. .............. ....................... —  21

B. A Federal Court’s Authority To Continue A 
School Desegregation Decree Terminates 
When It Is Established That Intentional Seg­
regation Has Ceased And Current Conditions 
Are Not Attributable To Prior Segregative
Acts   ............................................................. 24

CONCLUSION  ................... ............ ............. ............... . 28

(iii)



Cases
TABLE OF AUTHORITIES

25
Page

Allen V. Wright, 468 U.S. 737 (1984) .....................
Arlington Heights V. Metropolitan Housing Dev.

Corp., 429 U.S. 252 (1977)............... ................. . 24
Badgley V. Santacroce, 853 F.2d 50 (2d Cir. 1988).. 23
Brown V. Board of Educ., 347 U.S. 483 (1954)___ 19
Chrysler Corp. v. United States, 316 U.S. 556

(1942) ................................................................. . 14
Columbus Bd. of Educ. V. Penick, 443 U.S. 449

(1979) ..................... ....................... ............... .......  18,19
Dayton Bd. of Educ. V. Brinkman, 433 U.S. 406

(1977) ............     20,22
Dayton Bd. of Educ. V. Brinkman, 443 U.S. 526

(1979) ............     19
Doran V. Salem Inn, Inc., 422 U.S. 922 (1975).....  23
Duran V. Elrod, 760 F.2d 756 (7th Cir. 1985)........  23
Estes V. Metropolitan Branches of the Dallas

NAACP, 444 U.S. 437 (1980) ..............    28
Firefighters Local Union No. 178U V. Stotts, 467

U.S. 561 (1984) ........... ......... ......... ........... 14,15,18, 22
Ford Motor Co. V. EEOC, 458 U.S. 219 (1982).... . 14
General Bldg. Contractors Ass’n, Inc. V. Pennsyl­

vania, 458 U.S. 375 (1982) ......................... ..........  20
Green V. County School Bd., 391 U.S. 430 (1968).... 13, 18,

19
Hills V. Gatreaux, 425 U.S. 284 (1976) .........13, 20, 21, 22
Keyes V. School Dist. No. 1, Denver, Colo., 413 U.S.

189 (1973) .................................................  19,24,26
Kozlowski V. Coughlin, 871 F.2d 241 (2d Cir.

1989) ..........,............................................................  23
Local No. 93, Int’l Ass’n of Firefighters V. City of

Cleveland, 478 U.S. 501 (1986) ..........................  14
Milliken V. Bradley, 418 U.S. 717 (1974)  ..............passim
Milliken V. Bradley, 433 U.S. 267 (1977)......19, 20, 23, 24
Missouri v. Jenkins, 58 U.S.L.W. 4480 (1990)...... 23
Money Store, Inc. V. Harriscorp Finance, Inc., 885

F.2d 369 (7th Cir. 1989)................................
Nelson V. Collins, 659 F.2d 420 (4th Cir. 1981)

23
23



V

New York State Ass’n for Retarded Children, Inc.
V. Carey, 706 F.2d 956 (2d Cir.), cert, denied,
464 U.S. 915 (1983) ..................................... ........  23

Newman V. Graddick, 740 F.2d 1513 (11th Cir.
1984) .................... ............ .....................................  23

Pasadena City Bd. of Educ. V. Spangler, 427 U.S.
424 (1976) .......... ............. ................... ................. passim

Pennsylvania V. Wheeling & Belmont Bridge Co.,
59 U.S. (18 How.) 421* (1856) ........................... . 14,15

Plyler v. Evatt, 846 F.2d 208 (4th Cir.), cert, de­
nied, 109 S.Ct. 241 (1988) __________ ________  23

Rizzo V. Goode, 423 U.S. 362 (1976) ....... .... ..........  21, 23
Ruiz V. Lynaugh, 811 F.2d 856 (5th Cir. 1987)___  23
Simon V. Eastern Ky. Welfare Rights Org., 426

U.S. 26 (1976) .......... ................... .. ............... ......  25
Spallone V. United States, 110 S.Ct. 625 (1990).... 23
Spangler V. Pasadena City Bd. of Educ., 611 F.2d

1239 (9th Cir. 1979) .......... ................... ......... .....  23, 25
Stefanelli V. Minard, 342 U.S. 117 (1951)_______  23
Swann V. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1 (1971) _________ ___- ___ _____________ passim
Swift & Co. V. United States, 276 U.S. 311 (1928).. 16
System Fed’n No. 91 V. Wright, 364 U.S. 642

(1961) _______________________________ ______  13, 14
Town of Hallie V. City of Eau Claire, 471 U.S. 34

(1985) ...................   18
Twelve John Does V. District of Columbia, 861 F.2d

295 (D.C. Cir. 1988) ..... ......... .... ...................... . 23
United States v. California Coop. Canneries, 279

U.S. 553 (1929) ................. ......... ....... ................  16
United States V. Crescent Amusement Co., 323 U.S.

173 (1944)........................ - .......... ............ ...........  15,16
United States V. Glaxo Group, Ltd., 410 U.S. 52

(1973) ..................         15
United States V. Grinnell Corp., 384 U.S. 563

(1966) ............................      15

TABLE OF AUTHORITIES— Continued
Page



vi

TABLE OF AUTHORITIES— Continued
Page

United States V. Overton, 834 F.2d 1171 (5th Cir.
1987) ........      26,27

United States V. Parke, Davis & Co., 362 U.S. 29
(I960) .....................................................................  16

United States V. Swift & Co., 286 U.S. 106 (1932)..passim 
United States V. United Shoe Machinery Cory., 391

U.S. 244 (1968) ......................................................passim
United States V. United States Gypsum Co., 340

U.S. 76 (1950) ...................................  16
Washington V. Davis, 426 U.S. 229 (1976) ............. 24

Constitutional Provisions
U.S. Const, amend. X IV .........................................11, 20, 27
U.S. Const, amend. XIV, § 5 .....................................  22

Statutes
20 U.S.C. § 1701 (a) ( 2 ) ................................. ...........  22
Fed. R. Civ. P. 60, Notes of Advisory Comm, on

1946 Amendment......................................    18
Fed. R. Civ. P. 60 (b ) ..................................................  7,18
Fed. R. Civ. P. 60(b) (5 ) .........................................  13,17



In T he

Bnprmv ( t a r t  of %  It tt tr ft  U t a t e
October Term, 1989

No. 89-1080

The Board of Education of Oklahoma City
Public Schools, Independent School District

No. 89, Oklahoma County, Oklahoma,
Petitioner,v.

Robert L. Dowell, et al.,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Tenth Circuit

BRIEF OF THE DEKALB COUNTY BOARD OF 
EDUCATION AS AMICUS CURIAE 

IN SUPPORT1 OF PETITIONER.

INTEREST OF AMICUS CURIAE

The Board of Education of DeKalb County, Georgia, 
which has been operating the DeKalb County School Sys­
tem (“ DCSS” ) under federal court supervision for over 
20 years, was recently ordered by a panel of the Eleventh 
Circuit to “ consider pairing and clustering of schools, 
drastic gerrymandering of school zones and . . . busing” 
in order to alleviate racial imbalances in student assign­
ment that had been caused solely by shifting demographic 
(housing) patterns in the County occurring after an ad­
mittedly effective remedy had been instituted. See Ap­
pendix to Petition for a Writ of Certiorari, Freeman,



2

et al. v. Pitts, et al. (“DeKalb Pet. App.” ) , No. 89-1290, 
at 23a. That order was issued despite the undisturbed 
finding of the district court that, with respect to student 
assignment:

The DCSS has become a system in which the char­
acteristics of the [former] dual system have been 
eradicated, or if  they do exist, are not the result of 
past or present intentional segregative conduct by 
the defendants or their predecessors.

DeKalb Pet. App. 47a. Although the district court’s find­
ing as to the effectiveness of the remedy was not reversed, 
the Eleventh Circuit nevertheless overturned the district 
court’s order ending federal court supervision of student 
assignment policies on the ground that the district court 
had applied too lenient a legal standard. See DeKalb 
Pet. App. 24a. Thus, the Eleventh Circuit’s approach is 
congruent with the Tenth Circuit’s decision under review 
in at least one crucial respect: both courts have held that 
a finding that the original constitutional violation has 
been remedied is not dispositive in determining whether 
to terminate federal intervention into the operations of 
local school systems.1 Once the existence of a “ dual”

1 The Eleventh Circuit held that enforcement of the federal court 
desegregation order would continue until the school system simul­
taneously “ maintains at least three years of racial equality in six 
categories: student assignment, faculty, staff, transportation, ex­
tracurricular activities and facilities.” DeKalb Pet. App. 24a. Re­
gardless o f the “ cause” of current racial imbalance or the effective­
ness of the earlier remedial order in eradicating the original consti­
tutional violation, the Eleventh Circuit made it clear that the DCSS 
“ must take affirmative steps to gain and maintain a desegregated 
student population.”  Id. at 19a.

The Tenth Circuit in this case held that enforcement of the re­
medial decree would continue until the school system demonstrates 
“  ‘dramatic changes in conditions unforeseen at the time o f the decree 
that both render the protections o f the decree unnecessary . . . and 
impose extreme and unexpectedly oppressive hardships on the 
obligor.’ ”  Dowell II, Pet. App. 12a. (citation omitted). The Tenth 
Circuit, like the Eleventh, finds an affirmative obligation to maintain



3

school system has been established, both courts reject the 
need for a continuing causal link between the constitu­
tional violation and the scope of an ongoing federally 
supervised remedy, in favor of a rule that focuses solely 
on the present condition (i.e., racial balance) of the 
school system and requires amelioration of de facto con­
ditions. See DeKalb Pet. App. 19a; Dowell v. Board of 
Educ. of the Okla. City Pub. Schools (Dowell II),  890 
F.2d 1483, 1490-91 (10th Cir. 1989), Pet. App. 13a-15a.

Although DeKalb County’s pending petition for certi­
orari, which is being held pending disposition of this 
case, presents somewhat different questions than those 
presented here, DeKalb County has a significant interest 
in the outcome of this case. See Petition for a W rit of 
Certiorari, Freeman, et al. v. Pitts, et al. (“.DeKalb 
Pet.” ), No. 89-1290, at i. Both this case and Freeman 
V. Pitts focus on the fundamental questions of how to 
measure both “ compliance”  with desegregation orders and 
at what point formerly de jure segregated school systems 
have fulfilled their remedial obligations and should be 
relieved of federal court supervision. The Tenth and 
Eleventh Circuits both focus on achieving and main­
taining the singleminded goal of complete racial balance 
in the public schools. Yet, in doing so, both courts lose 
sight of the fact that, in our federalist system, their 
remedial authority is bounded by the requirements of 
the Constitution and Our Federalism. Amicus DCSS sub­
mits that once a constitutional violation is remedied and 
the vestiges of the intentionally segregative dual sys­
tem have been eliminated in any aspect of the school 
system (e.g., student assignment), the proper federal 
rule returns that aspect of the school system to local 
control. Pasadena City Bd. of Educ. v. Spangler, 427 
U.S. 424 (1976).

desegregated conditions (id. ait 18a) that justifies an ongoing federal 
remedy even after the “ condition”  or violation on which the re­
medial order is based has been eliminated. Id. at 13a.



4

Racial integration is an important goal, and one that 
the DCSS has been committed voluntarily to pursuing. 
DeKalb Pet. 3-4. Nevertheless, day-to-day decisions on 
the allocation of scarce local resources are impaired when 
federal courts denigrate all other legitimate goals in 
favor of maintaining arbitrary standards of “ racial bal­
ance.”  Both the Eleventh and Tenth Circuits have sub­
stituted the “ goals” of a federal court decree for con­
stitutional standards, thereby vastly expanding federal 
authority over petitioner, over the DCSS and over hun­
dreds of similarly situated local school authorities. Be­
cause of the importance of the overlapping issues in this 
case and in the pending DeKalb County petition (No. 
89-1290) and because the Court’s decision in this case 
will affect the existing status of federal court supervision 
of the DCSS— either directly or indirectly— the DeKalb 
County School Board is filing this brief as amicus curiae 
in support of petitioner in this case.2

STATEMENT
Amicus DeKalb County School Board agrees with peti­

tioner Board of Education of Oklahoma City’s (the 
“ Board’s” ) statement of the case, but wishes to empha­
size the following facts:

1. The case against petitioner was filed in 1961. 
Doivell v. Board of Educ. of the Okla. City Pub. Schools 
( “Dowell I” ), 795 F.2d 1516 (10th Cir.), cert, denied, 
479 U.S. 938 (1986). In 1972, the “ district court ordered 
the implementation” of the remedial scheme at issue, 
which became known as the “ Finger Plan.” Id. at 1518. 
That order utilized “ techniques of pairing, clustering, and 
compulsory busing” to achieve racial balance in student 
assignment. Dowell v. Board of Educ. of the Okla. City 
Pub. Schools (“Dowell II” ), 890 F.2d 1483, 1486 (10th 
Cir. 1989), Pet. App. 4a.

2 Pursuant to Rule 37 o f the Rules of this Court, the parties have 
consented to the filing of this brief. Copies of the letters of consent 
from the parties have been filed with the Clerk of the Court.



5
Several years later, the district court held an evi­

dentiary hearing on the Board’s motion to close the case. 
Pet. App. 2b. Based on the evidence presented at that 
hearing, the district court in 1977 “ relinquished juris­
diction over [the] case”  because it was convinced that 
the desegregation plan had been fully carried out “ and 
that the School District had reached the goal of being a 
desegregated non-racially operated and unitary school 
system.”  Dowell v. Board of Educ. of the Okla. City 
Pub. Schools, 606 F. Supp. 1548, 1554 (W.D. Okla. 
1985) ; see Dowell I, 795 F.2d at 1518.

During the next eight years the Board continued vol­
untarily to operate the school system pursuant to the 
requirements of the Finger Plan, with minor alterations, 
even though the district court had declared the District 
unitary and terminated the case. In the 1984-1985 school 
year, however, the Board adopted a new student assign­
ment plan (the “ reassignment plan” or “ plan” ), which 
eliminated compulsory busing in grades 1 to 4 in favor of 
neighborhood schools. Dowell II, Pet. App. 4a.3 In re­
sponse, the plaintiffs moved the district court to “ reopen 
the case,” arguing that the Board had wrongfully devi­
ated from the Finger Plan.

After a hearing, the district court found that the 
principles of res judicata precluded the plaintiffs from 
challenging the 1977 finding that the school system had 
“ reached the goal of being a desegregated non-racially 
operated and unitary school system.”  Dowell v. Board

3 The reassignment plan continued to maintain racial balance in 
all other grades through mandatory busing. In addition, the plan 
included a “ majority to minority”  transfer option that permitted 
elementary students (grades 1-4) in a school in which they were 
in the majority race to transfer to a school in which they were 
in the minority. See Dowell II, Pet. App. 4a-5a,. The district court 
found that the change in the assignment plan was a response to 
shifting housing patterns and the resultant increased busing burden 
(in time and distance) on young black children. Dowell v. Board of 
Educ. of the Okla. City Pub. Schools, 606 F. Supp. 1548, 1552 (W.D. 
Okla. 1985).



6
of Educ. of the OMa. City Pub. Schools, 606 F. Supp. 
at 1554, In addition, the district court found that the 
school system in 1985 continued to operate and function 
as a non-discriminatory unitary system (id. at 1555) and 
that the reassignment plan was “ constitutional” — i.e., 
that the plan was adopted without any discriminatory 
intent. Id. at 1556. Thus, the district court concluded 
that there were no “ special circumstances”  that war­
ranted reopening the case. See Dowell I, 795 F.2d at 
1518.

2. The court of appeals reversed, holding that the dis­
trict court had erred in refusing to reopen the case for 
the purpose of permitting the plaintiffs to “ enforce” the 
provisions of the original remedial order. Dowell II, Pet. 
App. 5a-6a. The key to the court of appeals’ decision 
was its holding that the 1977 finding of unitariness did 
not affect the continuing vitality of the “ mandatory in­
junction”  (i.e., the remedial order), and thus, “ the plain­
tiffs . . . only have the burden of showing that the 
court’s mandatory injunction has been violated.”  Id. at 
6a; see Dowell I, 795 F.2d at 1519. In so holding, the 
court of appeals specifically rejected the United States’ 
argument that “ once a finding of unitariness is entered, 
all authority over the affairs of a school district is re­
turned to its governing board, and all prior court orders, 
including any remedial busing order are terminated.” 
Dowell I, 795 F.2d at 1520. In the Tenth Circuit’s view, 
a finding of “ unitariness”  relates only to the “ ministerial 
function of ‘closing’ a case”  and terminating active (i.e., 
day-to-day) supervision of school operations. Id. The 
achievement of unitary status in no way affects a school 
board’s continuing obligation strictly to comply with the 
“prospective operation”  of the federal court’s remedial 
order. IdS 4

4 The court explained that this “ standard”  for modifying or 
terminating local school board obligations under federal desegre­
gation decrees is the same legal standard “ applicable in all instances 
where . . . the relief sought is escape from the impact of an injunc­
tion.”  Id. (citations omitted).



7
In sum, the Tenth Circuit found that proof that a 

desegregation decree had successfully achieved its goal of 
eliminating discrimination root and branch was not a 
sufficient basis to dissolve an injunction. Instead, a school 
board must show that retaining the injunction imposes 
“  ‘hardship so extreme and unexpected’ as to make the 
decree oppressive.” Dowell I, 795 F.2d at 1521. The 
plaintiffs’ only “burden”  was to demonstrate that the 
School Board had deviated from the requirements of the 
Finger Plan (Dowell I, 795 F.2d at 1523) ; according to 
the court of appeals, such a showing “ constitutes the 
‘special circumstances’ ”  that justify “ reopening” the case 
under Fed. R. Civ. P. 60(b ). Dowell I, 795 F.2d at 1522. 
The court of appeals thus remanded the case to the dis­
trict court to test the School Board’s evidence against the 
appropriate standard.

3. The district court noted initially that there had 
been substantial changes in housing patterns that had 
created the need to modify the Finger Plan. See Pet. 
App. 19b. However, because residential segregation in 
certain neighborhoods was the cause for “ the predomi­
nately black elementary schools”  under the new plan, the 
court addressed whether those patterns of residential seg­
regation could be linked to any unconstitutional action 
on the part of the Board. Id. After reviewing all of the 
evidence, the district court concluded that the Board had 
“ taken absolutely no action which has caused or con­
tributed to” segregated housing patterns (and, thus seg­
regated neighborhood schools) in certain neighborhoods; 
in fact, the Board’s actions over the past decade had 
“ fostered the neighborhood integration which has occurred 
in Oklahoma City.”  Pet. App. 17b-18b.

On remand, the district court addressed the “ funda­
mental issue” whether the “ School Board has shown a 
substantial change in conditions warranting dissolution 
or modification of the 1972 Order.”  Pet. App. 5b. The 
district court determined that the “ demographic changes” 
at issue had created hardship and rendered aspects of



8

the Finger Plan “ oppressive”  in a way that would justify 
modification or dissolution of the injunction. Pet. App. 
23b. The district court also held that the reassignment 
plan, adopted in response to the changes in question, was 
approved for legitimate, non-discriminatory reasons and 
that the plan would not disturb the unitary status of the 
school system— a status that had been maintained “ from 
1977 to the present.”  Pet. App. 24b-33b.

Finally, the district court addressed the issue whether 
the 1972 desegregation decree, which adopted the Finger 
Plan, should be modified or dissolved. Pet. App. 33b. 
In considering whether changed conditions warranted 
modification or dissolution of the decree, the court fo­
cused on the issue of whether the purposes of the de­
cree have been “ fully achieved.”  Pet. App. 35b. The 
district court stated that “ [t]he purpose of a desegrega­
tion remedy is to ‘correct’ the condition that offends the 
Constitution”  (Pet. App. 36b), in particular, to “ dis­
mantled] the dual school system.”  Id. In this case, the 
dual system had been dismantled and “ all vestiges of 
prior state-imposed segregation had been, completely re­
moved”  from the school system by 1977. Pet. App. 38b, 
36b. The plaintiffs’ focus on curing racial imbalance in 
student assignment due to residential segregation—-for 
which the Board was not responsible (Pet. App. 36b) —  
was an attempt to achieve a remedy “ aimed at eliminat­
ing a condition that does not violate the Constitution.” 
Id. (citation omitted). Thus, the achievement of uni­
tary status, together with the demographic shifts that 
rendered continued conformity with the Finger Plan “ op­
pressive,”  was held to be sufficient to support dissolution 
of the 1972 decree. Pet. App. 39b.

4. A  divided panel of the court of appeals again re­
versed. The court reiterated that modification or dissolu­
tion of the decree requires a showing under the stan­
dard in United States v. Swift & Co., 286 U.S. 106 
(1932), that there has been a change in “ conditions” 
that “ both render the protections of the decree: unneces-



9

sary to effectuate the rights of the beneficiary and im­
pose extreme and unexpectedly oppressive hardships on 
the obligor.”  Dowell II, Pet. App. 12a. However, the 
court held that the “ condition”  that occurs as a result of 
the injunction the achievement of unitary status)
“ cannot alone become the basis for altering the decree 
. . . .”  Id. at 13a.5 In addition to “ a finding of unitari­
ness” , the Board would have to produce “ proof of a sub­
stantial change in the circumstances which led to the is­
suance of that decree.”  Id. at 16a. On review of the 
evidence, the court conceded that “ changed circumstances” 
had been established {id. at 19a-20a) that supported 
modification of the Finger Plan. Id. at 30a.

The court then turned to the issue of whether the 
court below had erred in vacating the decree (rather 
than modifying it). According to the court of appeals, 
it appeared that the Board’s reassignment plan “has 
the effect of making the District ‘un-unitary’ by reviving 
the effects of past discrimination.” Dowell II, Pet. App. 
31a. The court made clear that in judging the “ effective­
ness [of the Board’s modification of the decree] in main­
taining unitary status”  {id. at 40a), it was measuring 
the “plan” solely in terms of its effects on racial balance 
in the school system and not in terms of its. relationship 
to any unconstitutional conduct on the part of the Board:

we must focus not on whether the Plan is. nondis- 
criminatory but on whether it solves the problems 
created by the changed conditions in the District.

Id. at 41a. Here, the panel was “ troubled because the 
evidence indicates the Board’s implementation of a ‘rac­
ially neutral’ neighborhood assignment plan has had the

« According to the Tenth Circuit, unitariness.— defined as a “ state 
of successful desegregation” .—simply does not “ mandate the later 
dissolution of the decree without proof of a substantial change in 
the circumstances which led to the issuance of that decree.”  Pet. 
App. 16a.



10

effect of reviving those conditions that necessitated a 
remedy in the first instance.” Id. at 32a. Thus, the court 
vacated the district court’s judgment dissolving the 1972 
decree and remanded for consideration of modifications 
to the Finger Plan that would “ maintain racially balanced 
elementary schools within the framework of changed cir­
cumstances that have occurred in the District.”  Id. at 
44a-45a.

SUMMARY OF ARGUMENT
I.

The Tenth Circuit assumes without justification that 
the law applicable to prohibitory antitrust injunctions 
governs the decision whether to terminate a federal 
court’s remedial decree in a school desegregation case. 
There can be no doubt that traditional equitable princi­
ples inform a federal court’s approach in fashioning a 
remedy for a constitutional violation by state authorities. 
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 
1, 15-16 (1971). But it does not follow from this that the 
injunction standards applied to private antitrust defen­
dants should be applied uncritically to a public school 
board. See Pasadena City Bd. of Educ. v. Spangler, 427 
U.S. 424 (1976); United States v. United Shoe Machinery 
Corp., 391 U.S. 244, 248 (1968). Because the question 
whether a specific injunction may be modified is anchored 
to the substantive law justifying the imposition of the 
original remedy, the proper federal rule for modifying 
injunctive relief must refer to that substantive law.

The law governing the allocation of private economic 
rights in antitrust decrees is inapposite to the determi­
nation of the appropriate remedy imposed upon state 
and local authorities for the purpose of curing the ef­
fects of past equal protection violations. Antitrust de­
crees rarely are subject to modification because they op­
erate to prevent ongoing threatened violations. By con­
trast, school desegregation decrees focus primarily on



11

the purpose of providing interim remedial relief. The 
decrees remedying Fourteenth Amendment violations that 
govern local educational policy are entered in contempla­
tion of their termination once the school authorities have 
cured the effects of the prior constitutional violation. At 
that point, the federal court must relinquish control over 
the school system by dissolving the injunction.

II.
A. A  federal court has authority to order injunctive 

relief in a school desegregation case only to the extent 
of a proven violation of the Equal Protection Clause of 
the Fourteenth Amendment. In the development of this 
substantive rule, this Court has long applied the tradi­
tional equitable principle that “ the nature of the viola­
tion determines the scope of the remedy.”  Swann, 402 
U.S. at 16; Milliken v. Bradley, 418 U.S. 717 (1974)
(“Milliken I” ). The rationale for the limits upon the 
federal judiciary’s powers to remedy effects from con­
duct of state authorities is bounded by the Constitution 
and Our Federalism. By requiring petitioners to per­
petuate a judicially imposed racial balance in the school 
system after a finding of unitariness, the court of ap­
peals ignored the principle that the federal judiciary may 
not regulate the activities of state and local authorities 
absent a constitutional violation. Spangler, 427 U.S. at 
434.

B. The substantive law-—the Equal Protection Clause 
in this context— provides both the source and the limits 
of a federal court’s power to impose remedial injunctive 
relief upon state and local school authorities. According 
to the traditional equitable principles, “ a decree may be 
changed upon an appropriate showing.”  United Shoe 
Machinery Corp., 391 U.S. at 248. The district court 
properly found that petitioner had made the appropriate 
showing in this school desegregation case.

Under the substantive law that has evolved in school 
desegregation jurisprudence, such decrees may be imple-



12
merited only to remedy segregative effects that are causally 
linked to racially discriminatory actions of state or local 
authorities. Spangler, 427 U.S. at 434. This Court’s, deci­
sion in Spangler makes clear that a federal court must 
dissolve an injunctive decree in a school desegregation 
context once the purposes, of the decree have been achieved 
and there has been a finding that there is no causal nexus 
between any segregated condition in the school system and 
the prior constitutional violation. By defining the goal of 
the injunction to remedy conditions beyond the scope of 
the violation and thus beyond a federal court’s power, the 
court of appeals erred in refusing to dissolve the decree.

ARGUMENT
The Tenth Circuit’s holding is premised on its belief, 

expressed in Dowell /, that a desegregation order, once 
implemented, remains binding on a school system until 
such time as the school system satisfies the “ difficult”  and 
“ severe”  burden of demonstrating that because of a “ sub­
stantial change in law or facts” the order has produced 
“ ‘hardship so extreme and unexpected’ as to make the 
decree oppressive.”  Dowell /, 795 F.2d at 1521. In other 
words, public school boards are to be treated no different 
than meat packing companies. Such a rule will severely 
impair current desegregation efforts, of many school 
boards by removing the major incentive to achieve unitary 
status. Moreover, if  that is indeed the rule for school 
desegregation cases, then the Tenth Circuit’s doctrine 
signals a watershed change1— and a severe deterioration—  
in federal-state relations,

I. THE COURT BELOW ERRED IN INCORPORATING 
STANDARDS FROM ANTITRUST LAW TO DETER­
MINE WHETHER TO MODIFY OR VACATE AN 
INJUNCTION IN A SCHOOL DESEGREGATION 
CASE.

As in any other case involving the modification or dis­
solution of injunctive decrees, this ease requires, “ the 
proper application of the federal law on injunctive rente-



13

dies.” Dowell 11, Pet. App. 3a. This Court has held that 
a “ school desegregation case does not differ fundamentally 
from other cases involving the framing of equitable reme­
dies to repair the denial of a constitutional right.” 
Swann, 402 U.S. at 15-16 (emphasis added); see also 
Hills v. Gatreaux, 425 U.S. 284, 294 n .l l  (1976); Milli- 
ken I, 418 U.S. at 744.® For that reason, some of the 
basic principles that cabin a federal court’s authority to 
modify injunctive relief apply equally to any request to 
modify a desegregation decree. But it does not follow that 
the defendant’s status as a public entity is irrelevant to 
the basic question of how long a decree must remain in 
effect. As applied in the context of school desegregation 
cases, the rules on federal injunctions do not require 
decrees against local school authorities to exist in virtual 
perpetuity. Since Green v. County School Bd., 391 U.S. 
430 (1968), it has been clear that such decrees were in­
tended to be terminated at the appropriate time: when 
the school system has achieved unitary status. Cf. Sivann, 
402 U.S. at 28 (discussing the nature of the remedy to be 
imposed in the “ interim period”  until the effects of a dual 
system are eliminated).

It is well established that “ an injunction often requires 
continuing supervision by the issuing court,”  System 
Fed’n No. 91 v. Wright, 364 U.S. 642, 647 (1961), and 
thus the issuing court may modify or dissolve an injunc­
tive decree when “ it is no longer equitable that the judg­
ment shall have prospective application.”  Fed. B. Civ. P. 
60(b) (5) ; see United Shoe Machinery Cory., 391 U.S. at 
248; Wright, 364 U.S. at 646-48; United States v. Swift 6

6 See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976) 
(district court exceeded authority by requiring- annual readjust­
ment of attendance zones); cf. Milliken v. Bradley, 418 U.S. 717 
(1974) (district court exceeded its authority by ordering inter- 
district remedy) ; Swann v. Charlotte-Mechlenburg Bd. of Educ., 
402 U.S. 1 (1971) (district court had remedial authority to decree 
system of bus transportation and use mathematical ratios as starting 
point).



14

& Co., 286 U.S. 106, 114 (1932) ; Pennsylvania v. Wheel­
ing & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856). 
“ ‘ [Sjound judicial discretion may call for the modifica­
tion of the terms of an injunctive decree if the circum­
stances, whether of law or fact, obtaining at the time of 
its issuance have changed, or new ones have since 
arisen.’ ” Pasadena City Bd. of Educ. v. Spangler, 427 
U.S. 424, 437 (1976) (quoting System Fed’n No. 91 v. 
Wright, 364 U.S. at 647). Because prospective injunc­
tions are issued in a variety of differing contexts,7 the 
determination whether an injunction should be modified or 
dissolved “ must be based upon the specific facts and cir­
cumstances”  of the particular case. United Shoe Ma­
chinery Corp., 391 U.S. at 249.

Most important, the determination whether to vacate or 
modify a decree must be made in light of the substantive 
law upon which the decree was based. A court’s authority 
to enter an injunctive decree is necessarily derived from 
the substantive law “which the decree is intended to 
enforce.”  System Fed’n No. 91 v. Wright, 364 U.S. at 
651; see Ford Motor Co. v. EEOC, 458 U.S. 219, 241 
(1982). In Wright, for example, the Court held that the 
district court erred in refusing to modify a consent decree 
under the Railway Labor Act in response to a change in 
the underlying substantive law.8 When Congress had

7 See, e.g., United States v. United Shoe Machinery Corp., 391 
U.S. 244 (1968) (unlawful monopoly in shoe machinery market); 
Chrysler Corp. v. United States, 316 U.S. 556 (1942) (unlawful 
affiliation of automobile manufacturer and finance com pany); Fire­
fighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984) (dis­
crimination in city employment).

8 A consent decree, like a litigated decree, may be modified upon 
the proper showing of changed circumstances. See System Fed’n 
No. 91 V. Wright, 364 U.S. 642, 650-51 (1961). While the particular 
substantive law may allow additional relief under a consent decree, 
“ the court’s exercise of the power to modify the decree over the 
objection of a party to the decree does implicate”  the limits imposed 
by the substantive law. Local No. 93, Int’l Ass’n of Firefighters V.



15

amended the Act to legalize one of the practices prohibited 
by the decree, the Court made clear that the decree should 
have been modified so that its terms would not “conflict 
with statutory objectives.”  Id.; see also Wheeling & Bel­
mont Bridge Co., 59 U.S. (18 How.) at 429-32 (subse­
quent congressional action legalizing bridge position re­
quired modification of injunction to remove the bridge); 
cf. Firefighters Local Union No. 1781 v. Stotts, 467 U.S. 
561, 576 n.9 (1984) (modification of consent decree per­
mitted only to extent it would be consistent with Title 
V II). Only by referring to the substantive law that 
formed the basis of the original decree may a court en­
sure that its order remains consistent with its original 
purpose. See United Shoe Machinery Cory., 391 U.S. at 
251-252 (cases interpreting the Sherman Act define the 
purposes of the antitrust injunction).

Because the underlying substantive law is an essential 
check on a federal court’s power to issue and modify in­
junctions, the heavy reliance of the court below on the 
substantive standards for modification of antitrust de­
crees was in error. The purposes of antitrust decrees are 
to enjoin continuing and threatened violations by private 
entities, to cure past violations and to deprive the defend­
ants of any economic benefits from their past unlawful 
acts. See United. States v. Crescent Amusement Co., 323 
U.S. 173, 187-89 (1944) ; United, States v. Grinnell Cory., 
384 U.S. 563, 577-78 (1966). A prohibitory antitrust 
decree such as that in Swift is particularly likely to be 
impervious to modification because it is properly assumed 
that the defendants will continue to act in their economic 
self-interest and thus will not resist the temptation to 
reap anti-competitive benefits, as long as market condi­
tions permit such conduct. See United States v. Glaxo

City of Cleveland, 478 U.S. 501, 523 n.12 (1986) (original em­
phasis) ; see also id. at 526-28 (consent decree must be consistent 
with underlying substantive-law basis for decree).



16

Group, Ltd., 410 U.S. 52, 63 (1973); Crescent Amuse­
ment Co., 323 U.S. at 190; see also United States V. Parke, 
Davis & Co., 362 U.S. 29, 48 (1960) ; United States v. 
United States Gypsum Co., 340 U.S. 76, 88-89 (1950). 
Given the threat that, absent the injunction, the defendant 
will resume the anti-competitive conduct, a scheme of 
permanent mandatory relief is likely to be necessary to 
achieve the purposes of the antitrust laws.

The standard for modifying the antitrust decree in 
United States v. Swift & Co., 286 U.S. 106 (1932) —  
which is the cornerstone of the decision below— incorpo­
rates this concern for the ongoing threat of violation. In 
Swift, the defendants sought a significant modification of 
a 1920 consent decree which had imposed restraints on 
the meat packers who had created “ an unlawful monopoly 
of a large part of the food supply of the nation.”  286 
U.S. at 111.9 In considering the requested modification, 
the Court noted a distinction “ between restraints that 
give protection to rights fully accrued upon facts so nearly 
permanent as to be substantially impervious to change, 
and those that involve the supervision of changing con­
duct or conditions and are thus provisional and tentative.” 
Id. at 114. The Swift injunction fell within the former 
category because of the continuing threat of defendants’ 
monopolistic power that was “ one of the chief reasons” 
for the original injunction. Id. at 115. The Court con­
cluded that any changes in the meat market that may 
have occurred were insignificant to affect “ the old-time 
abuses in the sale of other foods,” and that the market 
power wielded by the meat packers was a “ substantially 
unchanged” fact. Id. at 117. Therefore, because the pur­

9 Before the request for modification, two prior “vigorous as­
sault [s ]”  upon the decree were heard by this Court in Swift & 
Co. v. United States, 276 U.S. 311 (1928) and United States v. Cali­
fornia Coop. Canneries, 279 U.S. 553 (1929). Swift, 286 U.S. at 113. 
The third suit attacking the decree was styled as a petition “ to 
modify the consent decree and to adapt its restraints to the needs 
o f a new day.”  Id.



17

poses of the original decree had not been fully achieved 
and the conduct which led to the decree was still threat­
ened, the defendants had failed to demonstrate that the 
decree should be modified. Id. at 116-120.10 11

Contrary to the opinion of the court of appeals in this 
case (Dowell II, Pet. App. 12a (quoting Swift, 286 U.S. 
at 119)), the burden of proof applied in Swift— the re­
quirement to show unforeseen conditions giving rise to 
grievous harm and the disappearance of the dangers ad­
dressed by the decree— cannot be applied across the board 
to all requests to modify or dissolve an injunctive decree.11

10 The Court made clear that the meat packers had sought to 
modify the injunction while there was strong reason to believe 
that the defendants would violate the antitrust laws if  the restraints 
were alleviated. See 286 U.S. at 117-119. Because defendants had 
failed to make a showing that the threats of anticompetitive conduct 
“ have become attenuated to a shadow” (id. at 119), the Court held 
that “ [njothing less than a clear showing of grievous wrong evoked 
by new and unforeseen conditions should lead us to change what 
was decreed after years of litigation with the consent of all con­
cerned.”  Id. The decision makes clear that in order to achieve 
the purposes of the antitrust laws, otherwise lawful business prac­
tices may be enjoined as long as the defendants are in a position 
to abuse their market power, absent the injunction. See id. at 116- 
17. When this Court’s refusal to modify the antitrust decree in 
Swift is therefore “ read in light of th[e] context”  of the continuing 
threat of unlawful restraints of trade that existed in that case 
( United Shoe Machinery Corp., 391 U.S. at 248), it is clear that the 
strict requirement of “ a clear showing of grievous wrong evoked by 
new and unforeseen conditions”  (Swift, 286 U.S. at 119), should 
not apply to modification of injunctions governing education policy 
— at least where the original violation has been cured.

11 The court of appeals incorrectly stated that Rule 60(b )(5 ) 
“ codifies” this statement in Swift. Dowell II, Pet. App. 13a. For 
two reasons, it is clear that Rule 60 (b )(5 ) does not codify the 
strict standard applied in Swift. First, Rule 60(b) simply codifies 
the procedure for moving to modify an injunction; for example, it 
“ does not assume to define substantive law as to the grounds for va­
cating judgments, but merely prescribes the practice in proceedings



18

Instead of announcing an absolute standard for modify­
ing all federal injunctions, Swift simply “ holds that [a 
decree] may not be changed in the interests of the defend­
ants if  the purposes of the litigation as incorporated in 
the decree (the elimination of monopoly and restrictive 
practices) have not been fully achieved.” United Shoe 
Machinery Corp., 391 U.S. at 248.12 * * * * *

Such a standard is particularly inappropriate in the 
school desegregation context, where the purpose of the 
injunction has been met and intentional (de jure) segre­
gation and the effects of past intentional segregation have 
been eliminated.18 See infra pages 24-28; Columbus Bd.

to obtain relief.” Fed. R. Civ. P. 60, Notes of Advisory Comm, on 
1946 Amendment. Second, Rule 60(b) could not impose upon all 
types of injunctions the rule applied to an antitrust decree, such as 
in Swift, because such a rule would ignore the: substantive law 
underlying the decree. See supra pages 13-17; cf. Stotts, 467 
U.S. at 576 n.9 (disputed modification “cannot ibe resolved solely 
by reference to the terms of the decree and notions o f equity” ).

12 According to the court of appeals, under the Swift standard a 
school board must show that the changed conditions were unfore­
seen and have created oppression. Dowell II, Pet. App. 12a. But the 
nature of the school desegregation decree itself renders these prongs 
an inappropriate basis for decision. First, changed conditions are
inherently foreseeable in every desegregation case because from, the
outset the decree envisions a day when it will end: each decree antici­
pates that federal-court intervention will cease and local autonomy 
will return when the vestiges of unlawful discrimination are elimi­
nated root and branch. See Green v. County School Bd., 391 U.S.
430 (1968). Second, oppression in its most basic sense occurs when 
a federal court continues to control the day-to-day operation of
a public school system that has already achieved full unitary status.

18 Reliance upon the standard for modification or dissolution of 
injunctive relief applied in antitrust cases against a private defen­
dant is particularly inappropriate in a school desegregation case. 
Even under the antitrust laws, a state actor, such as a school board, 
has its conduct judged with regard to “principles of federalism and 
state sovereignty.” Town of Hallie v. City of Eau Claire, 471 U.S. 
34, 38 (1985). Thus, even if this were an antitrust case against a



19

of Educ. v. Penick, 443 U.S. 449, 458-59 (1979) ; Milliken 
V. Bradley, 433 U.S. 267, 290 (1977); ( “Milliken II” ) ;  
Spangler, 427 U.S. at 435; Keyes v. School Dist. No. 1, 
Denver, Colo., 413 U.S. 189, 200-201 (1973) ; Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 31 
(1971). That determination of whether a school system 
has become unitary is extremely fact-specific and a matter 
committed in large measure to the fact-finding of the dis­
trict courts supervising the decree that are “ uniquely 
situated . . .  to appraise the societal forces at work in 
the communities where they sit.”  Penick, supra, 443 
U.S. at 469-71 (Stewart, J,, concurring in Penick and 
dissenting in Dayton Bd. of Educ. v. Brinkman, 443 U.S. 
526 (1979) (“Dayton II” ) ) ;  see also Broivn v. Board of 
Educ., 347 U.S. 483, 495 (1954). But, at least, where 
such a finding of unitariness has been entered (Dowell, 
677 P. Supp. 1508, 1506 (W.D. Okla, 1987), Pet. App. 
56), it is clearly impermissible to enjoin a school system 
to continue operating under the same federal court injunc­
tion that was entered in response to a finding of unlawful 
de jure segregation, which, by definition, has been fully 
remedied. See infra pages 25-27.

The purpose of the decree in Swift was to prohibit 
threatened conduct.* 14 The purpose of all desegregation 
decrees is to reach the point where they are no longer 
needed— the elimination of the old dual system and its ef­
fects “ root and branch.”  Green v. County School Bd., 391 
U.S. 430, 438 (1968). That point— unitary status— means 
that the decrees have fully served their purpose. To con­

public school system, it seems quite unlikely that the extreme stand­
ards embodied in Swift would control. Accordingly, it makes no 
sense to employ those requirements rigidly in such a completely 
different legal setting.

14 There is no suggestion in the decisions of the court of appeals 
and the district court that absent a federal injunctive restraint, 
local authorities would return to a de jure segregated school system. 
See Dowell, 677 F. Supp. 1503, 1515-16, 1519 (W.D. Okla. 1987) 
(Pet. App. 24b-25b, 31b-33b); Dowell II, Pet. App. 41a.



20
tinue these decrees after this point in time is a groundless 
incursion of federal power in local affairs.

II. THE DEMANDS OF THE EQUAL PROTECTION 
CLAUSE PROVIDE THE PROPER RULE FOR DE­
TERMINING WHETHER AN INJUNCTIVE DE­
CREE AGAINST LOCAL SCHOOL AUTHORITIES 
SHOULD BE CONTINUED.

The scope of a federal court’s equitable power does not 
expand or change depending upon the stage in the life 
of a case in which that power is exercised. Thus, the 
determination whether an injunctive remedy should be 
modified or vacated is bounded by the same substantive 
law that defines the scope of the initial remedy: “ [a]s 
with any equity case, the nature of the violation deter­
mines the scope of the remedy.”  Swann v. Charlotte- 
Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971).

Where the plaintiffs have established that state or local 
authorities have violated the Fourteenth Amendment 
through intentional discrimination on the basis of race, a 
federal court’s “ equitable powers to remedy past wrongs 
is broad, for breadth and flexibility are inherent in equi­
table remedies,” id. at 15, but the court may exercise this 
remedial power “ only on the basis of a constitutional vio­
lation.”  Id. at 16.15 Thus— regardless of the prior status 
of the school district or the “ goals”  of any existing order 
— federal court “ decrees exceed appropriate limits if 
they are aimed at eliminating a condition that does not 
violate the Constitution or does not flow from such a 
violation.”  Milliken II, 433 U.S. at 282; see also Day- 
ton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419-20 
(1977) ( “Dayton I” ) ; Milliken I, 418 U.S. at 738; cf. 
General Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 
458 U.S. 375, 399 (1982) (judicial remedial powers “ ex­
tend no farther than required by the nature and the 
extent of th[e] violation” ) ; Hills v. Gatreaux, 425 U.S.

15 See also Spangler, 427 U.S. at 443 (Marshall, J., dissenting) 
(federal court has broad discretion to fashion remedial relief “until 
such a unitary system is established” ) (quoting Swann, 402 U.S. at 
31-32) (emphasis added).



21

284, 293-94 (1976); Rizzo v. Goode, 423 U.S. 362, 378 
(1976).

In Milliken I, for example, this Court held that the 
district court exceeded its remedial equitable powers by 
ordering a desegregation remedy that extended beyond 
the City of Detroit into the neighboring school districts. 
This interdistrict remedy “was held to be an impermissi­
ble remedy . . . because it contemplated a judicial decree 
restructuring the operation of local governmental enti­
ties that were not implicated in any constitutional viola­
tion.”  Hills v. Gatreaux, 425 U.S. at 296; Milliken I, 
418 U.S. at 744-45; Swann, 402 U.S. at 16. Thus, at the 
very least, it is well established that “ a federal court is 
required to tailor ‘the scope of the remedy’ to fit ‘the 
nature and extent of the constitutional violation.’ ”  
Gatreaux, 425 U.S. at 293-94 (quoting Milliken I, 418 
U.S. at 744). The decision below is contrary to this 
fundamental axiom.

A. A Federal Court’s Equitable Discretion To Impose, 
Modify Or Vacate An Injunction Structuring The 
Operations Of Local School Districts Must Be In­
formed By The Respect For Local Autonomy Em­
bodied In Our Federalism.

The decision of the court of appeals is admittedly 
aimed at maintaining racially balanced student popula­
tions, even though the imbalance which exists if  a race- 
neutral neighborhood assignment method is instituted 
cannot be traced to any unconstitutional conduct. The 
court of appeals simply disagrees with the decision of 
the local authorities who desire, for otherwise legitimate 
reasons, to make the change. The racial balance that 
the court of appeals has ordered maintained perpetually 
is not necessary as “ an interim corrective measure” 
(Swann, 402 U.S. at 27) ; rather, it simply reflects the 
court’s preference for racially balanced schools. Yet, un­
less used in a “ corrective” way, such a judgment invades 
a province heretofore exclusively belonging to the states.



22

It is certainly arguable that Congress, exercising its 
power to legislate under section 5 of the Fourteenth 
Amendment (U.S. Const, amend. XIV, § 5), could make 
this judgment over state objections, but Congress has al­
ready spoken to the issue and agrees with the Oklahoma 
City Board of Education.

The Congress declares it to be the policy of the
United States that-------. . .  (2) the neighborhood is
the appropriate basis for determining public school 
assignments.

20 U.S.C. § 1701(a) (2).
In both Milliken I and Gatreaux, this Court acknowl­

edged concern that a federal court’s injunction restruc­
turing local government operations in response to a 
finding of a constitutional violation should be sensitive 
to the constitutionally mandated federal-state relation­
ship. See, e.g., Gatreaux, 425 U.S. at 294. Because a 
federal court’s decision to enter or sustain a desegrega­
tion order displaces the “ vital national tradition”  of 
“ local autonomy of school districts,”  the exercise of these 
powers is bounded by constitutional principles of fed­
eralism. Dayton I, 433 U.S. at 410; Milliken I, 418 
U.S. at 744-45; see also Spangler, 427 U.S. at 434-35; 
Sivann, 402 U.S. at 15-16; cf. Firefighters Local Union 
No. 1 7 8 v. Stotts, 467 U.S. 561, 576-77 n.9 (1984). The 
court of appeals in this case, by importing standards for 
modification of wholly private remedies, simply ignored 
such considerations.

While this Court has never directly set forth the 
framework for modifying injunctions issued to reform 
state institutions, lower courts that must “grapple with 
the flinty, intractable realities of day-to-day implemen­
tation of th[e] constitutional commands”  [Swann, 402 
U.S. at 6), have long noted the need for flexibility in 
modifying injunctions that structurally reform state 
programs. In contrast, injunctions that allocate economic 
rights among private parties (including, for example,



23

the antitrust injunction in Swift) do not implicate such 
federalism concerns. Indeed, this Court recognized this 
very distinction in United States v. Swift & Co., 286 
U.S. at 114.16

A federal court in determining whether a decree 
should be dissolved “ must be constantly mindful of the 
‘special delicacy of the adjustment to be preserved be­
tween federal equitable power and State administration 
of its own law.’ ”  Rizzo v. Goode, 423 U.S. 362, 378 
(1976) (quoting Stefanelli v. Minard, 342 U.S.. 117, 120 
(1951 )); see also Milliken II, 433 U.S. at 280-81. When 
equity jurisdiction to fashion injunctive remedies is 
vested in “ a system of federal courts representing the 
Nation, subsisting side by side with 50 state judicial, 
legislative, and executive branches, appropriate consider­
ation must be given to principles of federalism in de­
termining the availability and scope of equitable relief.” 
Rizzo v. Goode, 423 U.S. at 379 (citing Doran v. Salem 
Inn, Inc., 422 U.S. 922, 928 (1975) ) .17 Appropriate reeog-

16 The courts o f appeals also have noted this distinction in their 
review of modification o f injunctions. See, e.g., Money Store, Inc. 
V. Harriscorp Finance, Inc., 885 F.2d 369, 374-377 (7th Cir. 1989) 
(Posner, J., concurring-); Kozlowski v. Coughlin, 871 F.2d 241, 247 
(2d Cir. 1989); Twelve John Does v. District of Columbia, 861 
F.2d 295, 298 (D.C. Cir. 1988); Badgley v. Scmtacroce, 853 F.2d 
50, 52-53 (2d Cir. 1988) ; Plyler v. Evatt, 846 F.2d 208, 212 (4th 
Cir.), cert, denied, 109 S.Ct. 241 (1988); Ruiz v. Lynaugh, 811 
F.2d 856, 861 (5th Cir. 1987); Duran v. Elrod, 760 F.2d 756, 758 
(7th Cir. 1985); Neivman v. Graddick, 740 F.2d 1513, 1520 (11th 
Cir. 1984); Nelson v. Collins, 659 F.2d 420, 424 (4th Cir. 1981); 
New York State Ass’n for Retarded Children, Inc. v. Carey, 706 
F.2d 956, 967-71 (2d Cir.), cert, denied, 464 U.S. 915 (1983); see 
also Spangler V. Pasadena City Bd. of Educ., 611 F.2d 1239, 1245 
n.5 (9th Cir. 1979) (Kennedy, Circuit Judge, concurring).

17 The Court recently reaffirmed that “ one of the most important 
considerations governing the exercise of equitable power is proper 
respect for the integrity and function of local government insti­
tutions.”  Missouri v. Jenkins, 58 U.S.L.W. 4480, 4484 (1990) ; see 
also Spallone v. United States, 110 S.Ct. 625, 632 (1990) ( ‘“ [t]he



24

nition of such federalism concerns precludes considera­
tion of requests to modify a desegregation decree under 
a legal standard that presumes that the original injunc­
tion will be permanent. See supra pages 16-20 and note 
12.

B. A Federal Court’s Authority To Continue A School 
Desegregation Decree Terminates When It Is Estab­
lished That Intentional Segregation Has Ceased 
And Current Conditions Are Not Attributable To 
Prior Segregative Acts.

To justify the decree of injunctive relief, “ it must be 
shown that racially discriminatory acts of the state or 
local school districts . . . have been a substantial cause 
of [the] segregation.” Miltiken I, 418 U.S. at 745 (em­
phasis added); see also Spangler, 427 U.S. at 434 (plain­
tiff must establish that “ school authorities have in some 
manner caused unconstitutional segregation” ). Moreover, 
when a violation of equal protection is alleged, a plaintiff 
must establish that the state action which is being chal­
lenged was adopted with a discriminatory purpose. 
Keyes v. School Disk No. 1, Denver, Colo., 413 U.S. 189, 
203 (1973); Washington v. Davis, 426 U.S. 229, 239-41 
(1976); Arlington Heights v. Metropolitan Housing Dev. 
Corp., 429 U.S. 252, 264-66 (1977).

These principles are essentially embodied and applied 
in Spangler. In Spangler, the Court reversed the refusal 
of the district court to vacate a portion of an injunctive 
decree after that decree had succeeded in remedying 
completely the student assignment portion of the viola­
tion previously found. Even though the Pasadena Unified 
School District had not yet achieved complete unitary

federal courts in devising- a remedy must take into account the 
interests of state and local authorities in managing their own 
affairs, consistent with the Constitution’ ” ) (quoting Milliken II, 
433 U.S. at 280-81).



25

status,18 19 the Court held that absent a finding that the 
racial imbalance to which the decree was addressed 
“ [w]as in any manner caused by segregative actions 
chargeable to the defendants,”  427 U.S. at 435, there 
could be no basis for “ judicially ordering assignment of 
students on a racial basis.”  Id. at 434; see also Swann, 
402 U.S. at 28 ( “ [ajbsent a constitutional violation 
there would be no basis for judicially ordering assign­
ment of students on a racial basis” ) ,13

There is no principled way to reconcile the holding in 
Spangler with the refusal of the court of appeals in this 
case to vacate an injunction which requires assignment 
of students on a racial basis in a school district which 
the district court had found to have completed fully the 
remedial process. Spangler stands squarely for the prop­
osition that parts of a remedial decree in school desegrega­
tion cases not aimed at remedying conditions causally

18 Spangler, 427 U.S. at 436. The Pasadena Unified School Dis­
trict was not declared to have attained complete unitary status 
until 1979. Spangler v. Pasadena City Bd. of Educ., 611 F.2d 1239 
(9th Cir. 1979).

19 In addition to the rule set forth in Swann and Spangler, this 
Court’s standing doctrines provide a useful guide to the necessary 
causal nexus between the constitutional violation and the scope of 
a federal court’s equitable power. Both the standing inquiry and 
the “ scope o f remedy”  analysis Involve questions about causation 
and its relationship to the question of a federal court’s power. See 
Allen v. Wright, 468 U.S. 737, 760 (1984) (whether a party is en­
titled to injunctive relief is closely related to “ [c]ase-or-controversy 
considerations” ). In order to invoke a federal court’s jurisdiction 
to seek relief for an alleged injury, a plaintiff must demonstrate 
(1) that the alleged injury “ fairly can be traced to the challenged 
action”  and (2) that the alleged injury is “ likely to be redressed” 
by the requested relief. Simon v. Eastern Ky. Welfare Rights Org., 
426 U.S. 26, 38, 41 (1976). A similar inquiry should guide requests 
for modification of injunctive relief; once the injunctive relief can 
no longer be “ fairly traced” to an injury attributable to a consti­
tutional violation, then the injunction should be lifted.



26

connected to unconstitutional conduct exceed the power 
of federal courts and must be vacated. The decision be­
low violates the holding in Spangler because it orders in­
definite compliance with just such a decree.

In this case, the causal relationship between the school 
authorities’ unconstitutional conduct and the segregative 
effects were established in 1972. As the party moving for 
modification, the school authorities have a “ burden . . . 
to satisfy the court that their [current] racial composi­
tion is not the result of present or past discriminatory 
action on their part.”  See Swann, 402 U.S. at 26; Keyes 
v. School Dist. No. 1, Denver, Colo., 413 U.S. at 211 
n.17 (school authorities’ burden “ to show that current 
segregation is in no way the result of these past segrega­
tive actions” ). When this burden is met, however, 
school authorities have no further “ duty” to remedy 
a lack of racial balance due to demographic or other 
factors and the injunction should be lifted. See Spangler, 
427 U.S. at 436 (once the goal of the remedy is met, 
federal court may not require annual adjustments “ to 
ensure that the racial mix desired by the court was 
maintained in perpetuity” ) ; Swann, 402 U.S. at 28 
“ [albsent a constitutional violation there would be no 
basis for judicially ordering assignment of students on 
a racial basis” ). Applying this standard, the district 
court found that the constitutional violation had been 
cured over ten years ago and that the break in the causal 
link between the violation and current conditions was 
well established.

In light of such findings, the district court quite prop­
erly held that further equitable relief could be imposed 
only upon proof of a further constitutional violation. By 
reversing that holding in favor of a more expansive view 
of the Board’s “ duty,”  the Tenth Circuit erroneously ex­
panded the desegregation remedy beyond the scope of the 
violation. As the Fifth Circuit correctly noted in United 
States v. Overton,



27

continuing limits imposed as a remedy after the 
wrong is righted effectively changes the constitu­
tional measure of the wrong itself; it transposes the 
dictates of the remedy for the dictates of the Con­
stitution and, of course, they are not interchange­
able.

834 F.2d 1171, 1176 (5th Cir. 1987).20 In ordering the 
school board to remedy the lack of racial balance caused 
by demographic changes, the Tenth Circuit has done ex­
actly what the Fifth Circuit warned against: it has sub­
stituted racial balance rather than the “undoing”  of un­
lawful segregation as the baseline of the remedial order.21

In sum, the fundamental error of the court of appeals 
in this case— and of the Eleventh Circuit in Freeman V. 
Pitts— was to measure current conditions in the schools 
against a standard or “goal”  that was not closely tied 
to the scope of the substantive violation, as defined by the 
Constitution. The court of appeals’ rejection of any re­
quirement of a causal link between the condition being 
remedied and a violation of the Constitution (as was 
advocated by the United States, see Dowell / ,  795 F.2d

2° xhe Fifth Circuit stated that the desire to press for remedies 
beyond the segregation caused by the constitutional violation “ rests 
upon a fear that the Fourteenth Amendment, proscribing as it does 
only purposeful discrimination, inadequately protects desegrega­
tion gains . . . .”  Overton, 834 F.2d at 1176.

21 Despite the understandable desire o f the court below to “ pro­
tect”  the goal of a racially balanced student body,

accommodation of federal superintendence and federalism will 
not tolerate the idea that although the wrong is righted, the 
magnitude o f the past wrong nonetheless justifies perpetuation 
of a federal order limiting the ambit of a school district’s self- 
governance.

Overton, 834 F.2d at 1177. The standard adopted by the court 
below simply fails to recognize that “ [i]t  is state government that 
[the court was] asked to enjoin”  and that, “ having righted the 
wrong, the limits [the court should] impose on the state can be 
drawn no more tightly than the limits of the Constitution.”  Id,



28

at 1520) opens the door to virtually limitless remedial 
litigation in which local governments will be ordered to 
undertake extraordinary remedies in pursuit of a “ per­
fect”  racially-balanced school system— a “ solution that 
may be unattainable in the context of the demographic, 
geographic, and sociological complexities of modern 
urban communities.”  Estes v. Metropolitan Branches of 
the Dallas NAACP, 444 U.S. 437, 448 (1980) (Powell, 
J., dissenting). Because such a result is contrary to the 
requirements of the Constitution and contrary to funda­
mental equitable principles, the decision below must be 
reversed.

CONCLUSION
The judgment of the court of appeals should be re­

versed.
Respectfully submitted,

Gary M. Sam s  
Charles L. Weatherly 
J. Stanley Hawkins 

Weekes & Candler 
One Decatur Town Center 
Suite 300
Decatur, Georgia 30031 
(404) 378-4300

Rex E. Lee *
Carter G. Phillips 
Mark D. Hopson 
Nancy A. Temple 

Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

Counsel for DeKalb County Board of Education, 
As Amicus Curiae in Support of Petitioner

June 1,1990 * Counsel of Record