Columbus Board of Education v. Penick Brief Amicus Curiae

    Nos. 78-610 and 78-627

In %  Bupnm (Limri of tltr Hmti'fr ilatt'B
October Term , 1978

Columbus Board of E ducation , et a l ., petitioners

v.

Gary  L. Pe n ic k , et a l .

Dayton  B oard of Education , et a l ., petitioners

v.

M ark  Br in k m a n , et a l .

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Lawrence G. W allace 
Acting Solicitor General

Drew S. Days, III 
Assistant Attorney General

Sara Sun Beale
Assistant to the Solicitor General

Brian K. Landsberg 
Robert J. Reinstein 
Irving Gorn stein 

Attorneys
Department of Justice 
Washington, D.C. 20530



Questions presented .............................................  1
Interest of the United States ............................  2
Statement .............................................................  3

I. Columbus ...................................................  4
A. The district court’s findings of

fa c t ................................... -......-......... 4
1. Faculty segregation ..................  6
2. School construction....................  7
3. Optional attendance zones.......  8
4. Boundary lines ..........................  9
5. Noncontiguous attendance

zones.............................................  10
6. Failure to act ............................  11

B. The district court’s adoption of a
remedial order ....................... -........ 14

C. The court of appeals’ decision..... 16
D. The stay applications to this Court.. 18

II. Dayton .......................................................  19
A. The proceedings to and including

this Court’s decision in Dayton /.... 19
B. The district court’s decision on re­

mand .................................................  21
1. Faculty segregation ..................  21
2. Attendance zones and boundary

changes .....   22
3. Site selection.....................  23

I N D E X
Page



II

C. The court of appeals’ second deci­
sion .....................................................  24

1. The creation of a dual system
prior to Brown I ......................  24

2. The Board’s conduct subsequent
to Brown 1 ................................  28

a. Faculty assignments .......... 29

3. Optional attendance zones .....  30

4. School construction ..................  31

5. Reorganization of grade struc­
ture .... ........................................  31

D. The Board’s stay applications .....  33
Summary of argument ....................................... 33
Argument .............................................................  41

I. The Columbus and Dayton School Boards 
engaged in systemwide policies of in­
tentional racial segregation .................. 41

A. The causes of current racial sepa­
ration in the Columbus and Dayton 
schools must be evaluated in light 
of the historical creation and main­
tenance of dual systems ................ 45

B. The Boards’ more contemporary
practices deliberately perpetuated 
and increased racial separation in 
their school systems ........................  50

Statement— Continued Page



Ill

1. The Boards’ current practices
were evaluated in light of their 
history of discrimination.........  51

2. The Boards continued to assign
faculty by race ........................... 54

Argum ent— Continued Page

3. The Boards continued to ma­
nipulate their “ neighborhood
school” policies to separate stu­
dents by race _________ _____ 56

II. Systemwide remedies are appropriate 
in these cases because they are tailored 
to curing the condition that offends the 
Constitution .......... ........... ...................... 69
A. The Columbus and Dayton Boards

are under an affirmative consti­
tutional duty to convert the dual 
systems they created and main­
tained into unitary systems with­
out “white” schools and “black” 
schools ............................................... 70

B. The Boards did not meet their
burden of proving that less exten­
sive relief would fully eradicate 
the effects of their systemwide 
discrimination ..................................  72
1. When systemwide discrimina­

tion has been shown, the bur­
den shifts to the defendants to 
establish that the remedy need 
not be systemwide 72



IV

2. Since the Dayton and Colum­
bus Boards did not establish 
that a less extensive remedy 
would cure the effects of their 
segregative policies, systemwide 
remedies were appropriate .....  80

3. The remedial principle of Keyes 
and Swann, upon which these 
decisions rest, should be reaf­

Argum ent— Continued Page

firmed ......................................... 85
Conclusion .............................................................. 88

CITATIONS
Cases:

Alexander v. Holmes County Board of
Education, 396 U.S. 19 ......................... 2

Alexander v. Louisiana, 405 U.S. 625 .....  66
Armstrong v. Brennan, 539 F.2d 625 .....  74
Brennan v. Armstrong, 433 U.S. 672 .....  74
Brown v. Board of Education, 347 U.S.

483 (Brown I )   ............................ 2, 6, 24, 53
Brown v. Board of Education, 349 U.S.

294 ..........      2,34
Castaneda v. Partida, 430 U.S. 482 .......  63, 65
Columbus Board of Education v. Penick,

No. A-134 (August 11, 1978) ....... ...... 67
Cooper v. Aaron, 358 U.S. 1 ......................  2
Davis v. Board of School Commissioners,

402 U.S. 33 .............................................  71
Dayton Board of Education v. Brinkman,

433 U.S. 406 (Dayton I ) ......2-3,14,18,19, 42,
50, 68, 69, 73, 74



V

Evans v. Buchanan, 582 F.2d 750, peti­
tion for cert, pending, Nos. 78-671, 78-
672 .............................................................  78

Franks v. Bowman Transportation Co.,
424 U.S. 747 ............................................. 76, 77

Gomillion v. Lightfoot, 364 U.S. 339 .......  65
Green v. County School Board, 391 U.S.

430 ........................................................... 2, 48, 71
Guinn v. United States, 238 U.S. 347 .....  65
Hazelwood School District v. United

States, 433 U.S. 299 ..............................  53
Hills v. Gautreaux, 425 U.S. 284 .............. 70
Hutto y. Finney, 437 U.S. 678 .................. 86
Kelly v. Guinn, 456 F.2d 100, cert, de­

nied, 413 U.S. 919 ..................................  55
Keyes v. School District No. 1, 413 U.S.

189 ............................................................. passim
Milliken v. Bradley, 418 U.S. 7 1 7 ............  2
Milliken v. Bradley, 433 U.S. 267............2, 70, 86
Mt. Healthy City Board of Education v.

Doyle, 429 U.S. 274 ................................  76
NLRB v. Gissel Packing Co., 395 U.S.

575 .......  76
Oliver v. Michigan State Board of Educa­

tion, 508 F.2d 178, cert, denied, 421
U.S. 963 ...........„ ...................................... 27,64

Pasadena City Board of Education v.
Spangler, 427 U.S. 424 ..........................  2

Runyon v. McCrary, 427 U.S. 16 0 ............ 2, 87
School Board of City of Richmond v. State

Board of Education, 412 U.S. 9 2 ...........  2
School District of Omaha v. United States,

433 U.S. 667 ...........................................

Cases— Continued Page

74



VI

Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 ....... 2,15, 38-39, 48,

53, 55, 57, 60, 61, 70, 71, 74 
Teamsters y. United States, 431 U.S. 324.. 77, 78 
United States v. Montgomery County

Board of Education, 395 U.S. 225 ........ 22
United States v. School District of Omaha,

521 F.2d 530, cert, denied, 423 U.S.
946 ...........   58-59,66

United States v. Texas Education Agency,
579 F.2d 910, petition for cert, pend­
ing, No. 78-897 ......................................... 66

Village of Arlington Heights v. Metro­
politan Housing Corp., 429 U.S. 252.... 51, 52,

59, 64-65, 67, 68, 76 
Washington v. Davis, 426 U.S. 229..42, 64, 65-66

Cases— Continued Page

Wright v. Council of City of Emporia,
407 U.S. 451 .............................................  2

Yick Wo v. Hopkins, 118 U.S. 356 .........  65
Zenith Radio Corp. v. Hazeltine Research,

Inc., 395 U.S. 100 ..................................  76

Statutes:
Civil Rights Act of 1964, 42 U.S.C. 1971 

et seq.:

Title IV, 42 U.S.C. 2000c-6 ................  2
Title VI, 42 U.S.C. 20Q0d.................. 2
Title IX, 42 U.S.C. 2000h-2 .............. 2

Equal Educational Opportunities Act of 
1974, 20 U.S.C. 1701 et seq_____ ______ 2

Section 202, 20 U.S.C. 1701 .............. 57
Section 204(a), 20 U.S.C. 1703(a).... 58



VII

Section 204 (b ) , 20 U.S.C. 1703 (b ) .... 58
Section 206, 20 U.S.C. 1705 ................ 57
Section 213, 20 U.S.C. 1712.......... . 70
Section 214, 20 U.S.C. 1713.................  72

Miscellaneous:
Farley, Residential Segregation And Its 

Implications For School Integration, 39
Law & Contemp. Prob. 164 (1975) ____  84

Note, Reading The Mind of the School 
Board: Segregative Intent and the De 
Facto/De Jure Distinction, 86 Yale L.J.
317 (1976) ............................................... 66

W. Prosser, Law of Torts (4th ed. 1971).. 76
K. Taeuber, Patterns of Negro-White 

Residential Segregation (Rand Corp.
Jan. 1970) .................    84

1 J. Wigmore, Evidence (3d ed. 1940).... 53
2 J. Wigmore, Evidence (3d ed. 1940).... 53

Statutes— Continued Page



IIu tip? (Enurt nf tli? llmtrii States
October Term , 1978

No. 78-610
Columbus Board of E ducation , et a l ., petitioners

v.

Gary L. Pe n ic k , et a l .

No. 78-627
Dayton  B oard of Education , et a l ., petitioners

v.

M ark  Br in k m a n , et al .

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTIONS PRESENTED

1. Whether the evidence supports the lower courts’ 
findings that the Columbus Board of Education and

( 1 )



2

the Dayton Board of Education adopted and main­
tained segregative policies with a systemwide impact.

2. Whether the systemwide impact of the viola­
tions warranted a systemwide remedy in each case.

INTEREST OF THE UNITED STATES

The United States has substantial enforcement re­
sponsibility with respect to school desegregation un­
der Titles IV, VI and IX of the Civil Rights Act 
of 1964, 42 U.S.C. 2000c-6, 2000d and 2000h-2, and 
under the Equal Educational Opportunities Act of 
1974, 20 U.S.C. 1701 et seq. The Court’s resolution of 
the issues presented in this case would affect that en­
forcement responsibility. The United States has par­
ticipated either as a party or as amicus curiae in 
most of this Court’s school desegregation cases, in­
cluding Brown v. Board of Education, 347 U.S. 483 
(1954), 349 U.S. 294 (1955); Cooper v. Aaron, 358 
U.S. 1 (1958); Green v. County School Board, 391 
U.S. 430 (1968); Alexander v. Holmes County Board 
of Education, 396 U.S. 19 (1969); Swann v. Char- 
lotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971); Wright v. Council of City of Emporia, 407 
U.S. 451 (1972); School Board of City of Richmond 
v. State Board of Education, 412 U.S. 92 (1973); 
Keyes v. School District No. 1, 413 U.S. 189 (1973); 
Milliken v. Bradley, 418 U.S. 717 (1974); Runyon 
v. McCrary, 427 U.S. 160 (1976); Pasadena City 
Board of Education v. Spangler, 427 U.S. 424 (1976); 
Milliken v. Bradley, 433 U.S. 267 (1977); and Day­



3

ton Board of Education v. Brinkman, 433 U.S. 406 
(1977).

STATEMENT

These school desegregation cases involve the cities 
of Columbus and Dayton, Ohio. The city of Colum­
bus has an area of 173 square miles and a popula­
tion of more than 500,000 (Columbus Pet. App. 12). 
The boundaries of the school district are generally 
coterminous with the boundaries of the city. In 1976, 
the year the Columbus case was tried, approximately 
96,000 students attended the Columbus public schools 
(ibid.). More than 32% of these students were black 
(Columbus Pet. App. 19).

The city of Dayton has a population of 245,000 
(Dayton A. 34). The Dayton school district is not 
coterminous with the city (ibid.). Some parts of the 
city are included within other school districts, while 
the school district includes some parts of other town­
ships. The population within the Dayton school dis­
trict boundaries is 268,000 (ibid,). In 1976, ap­
proximately 45,000 students were enrolled in the Day- 
ton public schools, slightly less than 50% of whom 
were black (Dayton A. 34-35).

At the times of trial, both Columbus and Dayton 
had a high degree of racial separation in their 
schools. In Columbus, about 70% of all students 
attended schools that were more than 80% white or 
80% black (Columbus Pet. App. 18). Half of the 
172 schools operated by the Columbus Board of Edu­
cation were more than 90% black or 90% white



4

(Columbus Pet. App. 163). In Dayton 51 of the 
69 public schools were virtually all-white or all-black 
(Dayton Pet. App. 149a-150a). In each case, plain­
tiffs sought to prove that these conditions of racial 
separation were brought about by deliberate school 
board actions. In each case the court of appeals con­
cluded that plaintiffs had proved systemwide consti­
tutional violations warranting systemwide remedies. 
The Columbus and Dayton school boards now chal­
lenge these conclusions. Because we believe that their 
petitions raise basically the same legal issues, we 
address both cases in a single brief.

I. COLUMBUS

A. The district court’s findings of fact

This suit was filed on June 21, 1973, by a group 
of students attending the Columbus Public Schools, 
and their parents, against the Columbus Board of 
Education ( “ the Columbus Board” ), its elected mem­
bers, and the State Board of Education (Columbus 
Pet. App. 4-5 ).1 The second amended complaint, 
styled a class action, was filed on October 22, 1974; 
it alleged that the Board had engaged in a system- 
wide policy of segregation warranting a systemwide 
remedy (Columbus Pet. App. 5-6). A group of inter- 1

1 The Superintendent of the Columbus Public Schools, the 
State Superintendent of Public Instruction, the Governor, 
and the Attorney General were also named as defendants 
(Columbus Pet. App. 4 ). The district court found no evidence 
of any segregative conduct by the Governor or the Attorney 
General (Columbus Pet. App. 63).



5

vening plaintiffs made essentially the same allegations 
and also sought a “  'system-wide’ plan of desegrega­
tion” (Columbus Pet. App. 6).

After a trial lasting 36 days, the district court 
entered detailed findings of fact, concluding that the 
Columbus Board had a long-standing systemwide 
policy of segregating its students on the basis of race.2

The court focused first on the period before 1954 
“ to discover whether past acts or omissions are in 
any degree responsible for the admitted current racial 
imbalance in the Columbus schools” (Columbus Pet. 
App. 7). It found that the Columbus Board had 
formally abolished separate schools for blacks in 
1881, and for a number of years assigned children 
to schools on the basis of geographic proximity (Co­
lumbus Pet. App. 8). In 1909, however, the Board 
built Champion school in a predominantly black resi­
dential district and staffed it with all black teachers 
(Columbus Pet. App. 8). During the 1920’s and 
1930’s, all black teachers employed by the Board were 
assigned to Champion (Columbus Pet. App. 8-9). 
In succeeding years, the Columbus Board established 
several other black schools to accommodate the grow­
ing black population. For example, in 1938 the Board 
converted Pilgrim School, which was then a racially 
mixed junior high school, into an elementary school 
for black children (Columbus Pet. App. 9). This

2 The district court also found the State Board of Educa­
tion jointly liable (Columbus Pet. App. 64-67). The court of 
appeals remanded the case for more detailed findings by the 
district court on this point (Columbus Pet. App. 200-207).



6

change was accomplished by gerrymandering Pil­
grim’s attendance zones along racial lines and by 
replacing the school’s all-white faculty with an all­
black faculty (Columbus Pet. App. 9). Similarly, the 
teaching staffs at Felton, Garfield, and Mount Ver­
non, which became predominantly black schools, were 
converted from 100% white to 100% black (Colum­
bus Pet. App. 9-10). The court found that by 1954 
the Board had deliberately isolated most of its black 
students in five black schools on the near-east side of 
Columbus (Columbus Pet. App. 10-11). In conjunc­
tion with overt discrimination in student assignment, 
the Board assigned black teachers and administrators 
to its black schools (Columbus Pet. App. 9-10). Ac­
cordingly, the district court found that at the time 
of this Court’s decision in Brown v. Board of Educa­
tion, 347 U.S. 483 (1954), the Columbus Board of 
Education was operating a dual system (Columbus 
Pet. App. 11).

Turning to the period after 1954, the court found 
that the Board never attempted to dismantle this 
dual system of education (Columbus Pet. App. 61). 
To the contrary, the Columbus Board instead per­
petuated and intensified racial separation by the fol­
lowing practices.

1. Faculty segregation

The court found that until 1974 the Board “gen­
erally maintained” its policy of assigning black teach­
ers to those schools with substantial black student 
populations (Columbus Pet. App. 15). As the court



7

noted, this practice was discontinued only after a 
complaint was filed by the Ohio State Civil Rights 
Commission, and a conciliation agreement was en­
tered in July 1974 (Columbus Pet. App. 15, 59).

2. School construction

The court found (Columbus Pet. App. 21) that 
of the 103 schools constructed by the Board between 
1950 and 1975, 87 opened with racially identifiable 
student bodies, and 71 remained racially identifiable 
at the time of trial.3 Recognizing the Board’s con­
tention that it had followed a neutral neighborhood 
school policy, the court noted (Columbus Pet. App. 
21) that the Board could have foreseen the probable 
racial composition of the new schools, and that in 
some instances the Board was warned that a school 
constructed on a proposed site would be racially iden­
tifiable. For example, before the Board constructed 
Gladstone in 1965, it was warned that the school

3 The court adopted the criteria of plaintiffs’ expert, Dr. 
Gordon Foster, to determine whether a school was “ racially 
identifiable” (Columbus Pet. App. 78-79). Racial identifiabil- 
ity describes the relationship between the racial composition 
of a particular school and the racial composition of the sys­
tem as a whole. A measure of statistical variance is applied 
to the systemwide percentage of black pupils. Schools that 
have a percentage of black pupils outside this range are 
racially identifiable. For example, if the percentage of black 
pupils in the school system is 32%, and the statistical vari­
ance is +  or -  15%, schools outside the range of 17 % to 47% 
black would be racially identifiable. Dr. Foster’s computations 
for the years 1950-1957, 1964, and 1975 appear in the ap­
pendix to the district court’s opinion (Columbus Pet. App. 
78-79).



8

would open and remain black if  built on its proposed 
site (Columbus Pet. App. 21). The court found that 
the Board had ignored this warning and built Glad­
stone on a site that served to contain the black stu­
dent population in the area south of Hudson Street; 
in contrast, if  the Board had built Gladstone further 
north and readjusted its zone lines as some sug­
gested, it would have promoted integration at three 
schools (Columbus Pet. App. 22).

The court did not infer segregative intent simply 
from the fact that the Board constructed new schools 
in residentially segregated areas, and it noted that 
in residentially segregated areas, the neighborhood 
school policy limits site selection (Columbus Pet. App. 
25). The court found, however, that in those areas 
of the city with substantial black and white popula­
tions, there had been opportunities, not taken by the 
Board, to select sites for new schools that would have 
had an integrative effect (Columbus Pet, App. 25).

3. Optional attendance zones

The court found (Columbus Pet. App. 26-33) that 
the Board had established a number of optional zones 
to allow white students to avoid attending their pre­
dominantly black neighborhood schools. For example, 
for sixteen years the Board maintained the “ Near- 
Bexley Option,” which permitted students in a small 
white enclave on Columbus’ predominantly black near­
east side to attend predominantly white schools, de­
spite the fact that they had to “ traverse the City of 
Bexley to arrive at the option schools” (Columbus



9

Pet. App. 26-28). The court found that the Near- 
Bexley Option was a “ classic example of a segrega­
tive device * * *”  (Columbus Pet. App. 29). Other 
optional zones with obvious racial consequences and 
without apparent administrative justification were 
established between (or among) Highland and West 
Broad (Columbus Pet. App. 30), Highland and West 
Mound (Columbus Pet. App. 31-32), Franklin and 
Roosevelt (Columbus A. 458-464), Central and North 
(Columbus A. 464-466), East and Linden-McKinley 
(Columbus A. 466-469), the “ downtown” schools (Co­
lumbus A. 478-485), Main and Livingston (Colum­
bus A. 485-489), Tunmoor and Everett (Columbus 
A. 492-494), Fair and Pilgrim, and Pilgrim, East- 
wood and Eastgate (Columbus A. 500-503).

4. Boundary lines

The court found that the Board also drew bound­
ary lines along racial lines. For example, in the Hill­
top area on the west side of Columbus, there are 
three predominantly white schools (Burroughs, West 
Broad, and West Mound) and one predominantly 
black school (Highland) (Columbus Pet. App. 29, 
32). The Board not only removed white residential 
areas from the predominantly black Highland zone 
(Columbus Pet. App. 29-32) but also maintained 
boundaries that served to contain the black student 
population in Highland when alternative boundary 
determinations would have fostered integration at 
all four schools (Columbus Pet. App. 32-33).



10

Even after the Board formally announced that 
improved racial balance was a relevant factor in its 
site selection and boundary determinations, this pat­
tern continued. For instance, the Superintendent 
designed two alternative plans to relieve overcrowd­
ing in the integrated Mifflin School District, one of 
which would have maintained the original attendance 
area by building one new school and pairing it with 
the existing school. The Board rejected this integra­
tive alternative, and instead chose to divide the area 
into two attendance zones, one serving the predomi­
nantly black, the other the predominantly white part 
of the district (Columbus Pet. App. 37). The court 
found the Board’s attempts to show a nondiscrimi- 
natory reason for rejecting the integrative option 
unconvincing. It found there was no evidence sup­
porting the Board’s claim that the first plan would 
have required substantial transportation of students, 
and concluded that the Board had approved the use 
(which it rejected here) of primary and intermedi­
ate schools when it served other interests (Colum­
bus Pet. App. 38).4

5. Noncontiguous attendance zones

The court also found that the Board sometimes 
adopted noncontiguous attendance zones when appli­
cation of neutral neighborhood school principles would 
have resulted in greater integration. For instance,

4 Much of the evidence concerning boundary adjustments 
relates to the opening of new schools (see Columbus A. 488- 
527).



11

from 1966 to 1968 the Board bused white students 
from a white residential area past predominantly 
black Alum Crest Elementary School to predomi­
nantly white Moler Elementary (Columbus Pet. App. 
34). Although the principal of Alum Crest asked a 
Columbus School administrator for an explanation, 
he never received one (Columbus Pet. App. 34). The 
court could “ discern no other explanation than a 
racial one” for this situation (Columbus Pet. App. 
34). The Board also assigned pupils on a noncon­
tiguous basis to Fornof School (Columbus Pet. App. 
34-35) with similar segregative effects.

6. Failure to act

The court found that the Board was at all times 
aware of the segregative consequences of its actions 
and fully apprised of alternatives. The court pointed 
out that “ [v]arious segments of the community, 
notably black parents and civic organizations, have 
repeatedly and articulately vocalized concern, anger 
or dismay concerning both overtly segregative actions 
and lost integrative opportunities” (Columbus Pet. 
App. 50). Local civil rights organizations, a Board- 
sponsored advisory committee and the State Board of 
Education, among others, all “called attention to the 
problem and made certain curative recommendations” 
(Columbus Pet. App. 51). Yet the Board consistently 
failed to act on these recommendations (Columbus 
Pet. App. 53).

Having found widespread racial separation in the 
Columbus school system, the court held (Columbus



12

Pet. App. 60-61) that under Keyes v. School District 
No. 1, 413 U.S. 189 (1973), the burden of proof 
shifted to the defendants to show that “ the racial 
character of the school system is the result of racially 
neutral social dynamics or the result of acts of others 
for which defendants owe no responsibility.” The 
court found (Columbus Pet. App. 60) that the re­
sult of the Board’s actions segregating black students 
in schools on the near-east side of the city had 
“ survived unattenuated by any acts of defendants,”  
and that recent nondiscriminatory efforts by the 
Board in the areas of faculty assignments “have less­
ened the sting” of the Board’s longstanding discrimi­
natory policy, “but have not served to substantially 
remove the evil it helped create.”  The court found 
(Columbus Pet. App. 61) that the defendants had 
failed to show “ that the present admitted racial im­
balance in the Columbus Public Schools would have 
occurred even in the absence of their segregative acts 
and omissions * *

Although the Board had argued that because of 
demographic trends some portion of the current seg­
regation would have existed even in the absence of 
discrimination, the court found that the Board s 
actions had had a significant impact on housing pat­
terns, and that “ [t]he interaction of housing and the 
schools operate [d] to promote segregation in each” 
(Columbus Pet. App. 58). The court noted school 
authorities had no duty to “ cure[ ] the evils of resi­
dential segregation,” but it stated that they should 
have recognized the interaction between housing and



13

schools, and “certainly should not have aggravated 
racial imbalance in the schools by their official ac­
tions” {ibid.).

Based on the totality of this evidence the court 
concluded that the Board had not maintained a 
racially neutral neighborhood school policy. Instead, 
the court found (Columbus Pet. App. 61) that the 
Board had been operating a dual system at the time 
of the Brown decision in 1954, and that it “never ac­
tively set out to dismantle this dual system.” “Viewed 
in the context of segregative optional attendance zones, 
segregative faculty and administrative hiring and 
assignments, and the other such actions and decisions 
of the Columbus Board of Education in recent and 
remote history,” the court found it “ fair and reason­
able to draw an inference of segregative intent from 
the Board’s actions and omissions discussed in this 
opinion”  {ibid.).

The effects of the Board’s actions were dramatic. 
The court found that “ those elementary, junior, and 
senior high schools in the Columbus school district 
which presently have a predominantly black student 
enrollment have been substantially and directly af­
fected by the intentional acts and omissions” of the 
school board (Columbus Pet. App. 73). And it em­
phasized {ibid.) that its findings concerned “ the 
Columbus school district as a whole” since the Board’s 
actions tending to make “black schools blacker neces­
sarily have the reciprocal effect of making white 
schools whiter.”



14

Based upon these findings, the court directed the 
Board to provide each black child in Columbus with 
an opportunity for an integrated education (Colum­
bus Pet. App. 75). The court noted that such a plan 
could maintain predominantly white schools if  the 
Board could show that the racial imbalance in those 
schools was not the result of its segregative policies 
(Columbus Pet. App. 75).

B. The district court’s adoption of a remedial order

The Board first submitted a plan that desegregated 
all formerly black schools and continued 22 predomi­
nantly white schools (Columbus Pet. App. 102). Fol­
lowing this Court’s decision in Dayton Board of Edu­
cation v. Brinkman, 433 U.S. 406 (1977) (Dayton I ) ,  
the Board submitted an amended plan which had as 
its purpose the desegregation of the 11 identifiably 
black schools that had been referred to in the district 
court’s opinion (Columbus Pet. App. 99-102).

The district court rejected the Board’s proposed 
desegregation plans after reexamining its findings in 
light of Dayton I. The court concluded that “ [t]he 
Dayton decision stands for the proposition that an 
equitable remedy should not go beyond the scope 
of the wrong which it purports to redress,” with 
the remedy in school desegregation cases designed to 
redress the “  ‘incremental segregative effect’ ” of 
the actions of school officials (Columbus Pet. App. 
92-93, quoting Dayton I, supra, 433 U.S. at 420). 
Here, the district court found (Columbus Pet. App. 
94), “ there should be no confusion concerning the



15

scope of defendants’ liability” because the court had 
previously found that “ ‘liability in this case concerns 
the Columbus school district as a whole.’ ” In con­
trast to the Dayton case, the court pointed out that 
its determination of liability did not rest on any 
specific number of violations, but rather on the 
Board’s actions since 1954 that “ intentionally aggra­
vated, rather than alleviated, the racial imbalance of 
the public schools it administers” (Columbus Pet. 
App. 94). The court found that although school offi­
cials had ample opportunity to show that the admitted 
racial imbalance in the schools was caused by factors 
unrelated to the Board’s actions, “ [t]his they did 
not do” (Columbus Pet. App. 95).

The court found the Board’s original plan inade­
quate (Columbus Pet. App. 97-107). The Board had 
adduced no evidence that desegregation of the 22 
white schools would require transportation detri­
mental to health or to the educational process, and 
the Board made no effort to meet its burden under 
Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 26 (1971), to show that the racial com­
position of these schools was not the result of past 
or present discriminatory action on its part (Colum­
bus Pet. App. 105). Moreover, an alternate staff 
plan that required only a marginal increase in trans­
portation distances promised more extensive desegre­
gation without leaving large areas for white flight 
(Columbus Pet. App. 105). The court stated that 
the Board could use either the latter plan, which 
would bring each school within 15% of the district­



wide norm of 32 % black students, or a plan submitted 
by the State Board of Education, as a starting point 
in drafting an acceptable plan (Columbus Pet. App. 
107, 111).

The court also rejected the Board’s amended plan, 
which would have desegregated only the schools spe­
cifically referred to in the court’s opinion on liability, 
leaving 41 identifiably black schools and 73 identi- 
fiably white schools unaffected (Columbus Pet. App. 
99-102). The court found (Columbus Pet. App. 102) 
that the Board had made no effort to show that the 
imbalance in these schools was not the result of its 
past and present discriminatory actions.

The Board subsequently submitted a plan for stu­
dent reassignment that the court found constitu­
tionally acceptable (Columbus Pet. App. 126-127).

C. The court of appeals’ decision

The court of appeals affirmed (Columbus Pet. App. 
140-207). The appellate court held the record “ fully 
supports” the district court’s findings that [a]s of 
1954 the Columbus School Board had ‘carried out a 
systematic program of segregation affecting a sub­
stantial portion of the students, schools, teachers and 
facilities within the school system’ ” (Columbus Pet. 
App. 159-160, quoting Keyes v. School District No. 1, 
supra, 413 U.S. at 201-202). Under Keyes the court 
of appeals held (Columbus Pet. App. 165-166) that 
the burden then shifted to the Board to show that the 
high degree of racial separation present in the schools 
at the time of trial was not the result of the Board’s 
segregative actions.

After noting “ the substantial evidence of segrega­
tion in pupil, teacher and administrator assign-

16



17
merits/’ the court of appeals considered the evidence 
pertaining to the Board’s selection of school sites and 
its construction program (Columbus Pet. App. 166). 
It found (Columbus Pet. App. 172) that the record 
amply supports the trial court’s findings. The ap­
pellate court added (Columbus Pet. App. 173) that 
the racially identifiable character of the vast major­
ity of new schools created “a very strong inference 
of intentional segregation,” but that “ the record ac­
tually requires no reliance upon inference”  because 
there was evidence that the Board repeatedly chose 
sites that it knew would have a segregative effect 
even when there were alternative sites that would 
have had an integrative effect. Finally, the appellate 
court held that the record supported the district 
court’s findings that the Board had intentionally em­
ployed gerrymandering, optional attendance zones, 
and discontinuous attendance areas as “devices which 
allowed white students to avoid attendance at a pri­
marily black school, or which required black students 
to attend a primarily black school in place of a closer 
white school” (Columbus Pet. App. 174-175). The 
court stated (Columbus Pet. App. 175) that although 
the specific instances of gerrymandering of attend­
ance boundaries and use of optional attendance 
zones cited by the trial court were “ isolated in the 
sense that they do not form any systemwide pattern,” 
they were significant because they demonstrated that 
the Board’s “ ‘neighborhood school concept’ was not 
applied when application of the neighborhood concept 
would tend to promote integration rather than seg­
regation.”



18

Turning to the question of “ the incremental segre­
gative effect” of the Board’s actions, the court of 
appeals affirmed the district court’s finding that the 
Board’s discriminatory actions had “ systemwide ap­
plication and impact” that justified the district court’s 
order of a systemwide remedy (Columbus Pet. App. 
198-199).

D. The stay applications to this Court

The Board then applied to this Court for a stay of 
the district court’s order. Mr. Justice Stewart denied 
the stay, but on further application, on August 11, 
1978, Mr. Justice Rehnquist granted a stay of the 
district court’s order pending disposition of the 
Board’s petition for certiorari, and, if the petition 
were granted, until further order of the Court (Co­
lumbus Pet. App. 217). In a brief opinion accom­
panying the order, Mr. Justice Rehnquist stated 
(Columbus Pet. App. 213) that in this case and the 
Dayton case the court of appeals appeared to have 
given this Court’s opinion in Dayton Board of Edu­
cation v. Brinkman, 433 U.S. 406 (1977), “an un­
duly grudging application.” He concluded (Colum­
bus Pet. App. 213-214) that the court of appeals “ is 
apparently of the opinion that presumptions, in com­
bination with such isolated violations, can be used to 
justify a systemwide remedy where such a remedy 
would not be warranted by the incremental segrega­
tive effect of the identified violations.”

A motion to vacate the stay was then presented 
to Mr. Justice Stewart and denied by him. A motion 
to convene the Court for a special term to vacate the



19

stay was denied on August 25, 1978 (Columbus Pet. 
App. 218).

II. DAYTON

A. The proceedings to and including this Court’s decision
in Dayton I

Much of the procedural history of this case is re­
counted in this Court’s decision in Dayton I, supra. 
At the initial hearing, the district court found a 
three-part cumulative violation consisting of (1) sub­
stantial racial imbalance in the schools, (2) the use 
of optional attendance zones and (3) the Board’s 
rescission of a resolution admitting past discrimina­
tion and calling for various remedial measures (Day- 
ton Pet. App. 12a). Based on these findings, the 
court ordered limited relief (Dayton Pet. App. 26a- 
31a).

Cross-appeals were taken. Plaintiffs contended that 
the Board’s discrimination went well beyond the 
three-part violation found by the district court and 
warranted systemwide relief. Although the court of 
appeals questioned many of the district court’s find­
ings, it found it unnecessary to rule on the question 
whether the court had erred in failing to find addi­
tional discrimination (Dayton Pet. App. 56a-67a). 
Instead, it held that the desegregation plan ordered 
by the district court was inadequate to remedy the 
cumulative violation it had identified (Dayton Pet. 
App. 48a).

On remand the district court subsequently adopted 
a systemwide desegregation plan (Dayton Pet. App.



20

99a-117a), and the court of appeals affirmed (Dayton 
Pet. App. 118a-123a).

This Court reversed. Viewing the district court’s 
findings in the light most favorable to plaintiffs, this 
Court concluded that the court of appeals “had no 
warrant in our cases for imposing the systemwide 
remedy which it apparently did.” 433 U.S. at 417. 
“ [I]nstead of tailoring a remedy commensurate to 
the three specific violations, the Court of Appeals im­
posed a systemwide remedy going beyond their scope.” 
Ibid. The Court remanded the case to the district 
court to make more specific findings, and, if neces­
sary, to take additional evidence. 433 U.S. at 419. 
The Court concluded (433 U.S. at 420):

The duty of both the District Court and the 
Court of Appeals in a case such as this, where 
mandatory segregation by law of the races in 
the schools has long since ceased, is to first de­
termine 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. Wash­
ington v. Davis, supra. All parties should be 
free to introduce such additional 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 incremental segregative effect these 
violations had on the racial distribution of the 
Dayton school population as presently consti­
tuted, when that distribution is compared to 
what it would have been in the absence of such



21

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.

B. The district court’s decision on remand

On remand, following a supplemental hearing, the 
district court issued an opinion denying all relief and 
dismissing the complaint (Dayton Pet. App. 142a- 
188a). The court found that there was little dispute 
concerning the historical discrimination against black 
students until the early 1950’s in Dayton (Dayton 
Pet. App. 148a). Although it found that the evidence 
demonstrated “ an inexcusable history of mistreat­
ment” of black children from the early 1900’s through 
approximately 1950, the court concluded that plain­
tiffs had failed to meet their burden of proof because 
they had not demonstrated the incremental segrega­
tive effect of these practices on the racial distribution 
of the current school population (Dayton Pet. App. 
149a).

1. Faculty segregation

The court found that until approximately 1950 the 
Dayton Board of Education followed a policy of 
racially discriminatory faculty assignment under 
which black teachers were permitted to teach black 
students only (Dayton Pet. App. 151a). The Board 
replaced this policy in 1951 with a policy of “ dynamic 
gradualism” that permitted the introduction of black 
teachers into schools having a mixed or white popula­
tion when there was evidence that such communities 
were ready to accept black teachers (Dayton Pet.



2 2

App. 151a-152a, 195a n . l l ) .  As a result of this 
policy, each school in the system had at least one 
black teacher by 1969 (Dayton Pet. App. 152a). In 
1971 the Board reached an agreement with the De­
partment of Health, Education, and Welfare that pro­
vided for faculty desegregation similar to the plan 
approved in United States v. Montgomery County 
Board of Education, 395 U.S. 225 (1969). Despite 
this long history of faculty segregation, the court 
found no current segregative effects, concluding that 
if the schools to which black faculty members had 
been assigned were racially identifiable, it was be­
cause of the composition of their student bodies, not 
the composition of the faculty (Dayton Pet. App. 
153a-154a).5

2. Attendance zones and boundary changes

Although it had previously found the use of cer­
tain optional attendance zones “ embraced desires 
motivated by racial considerations” and had “ signifi­
cant potential effects in terms of increased racial 
separation” (Dayton Pet. App. 8a), the district court 
now found no segregative intent or effect in connec­
tion with the option zones affecting neighborhood 
schools (Dayton Pet. App. 162a-169a). With regard 
to one of the two city-wide high schools, Dunbar, 
which opened in 1933 with an all-black staff, a black 
principal, and an all-black student body, and was 
maintained as an all-black school until it closed in

5 Indeed, the district court apparently did not consider the 
policy of dynamic gradualism to be racially discriminatory 
(Dayton Pet. App. 152a-153a).



23

1962, the court held that “ the relationship between 
the Board’s past segregative acts and the all-black 
status of Dunbar High School in 1962 has ‘become 
so attenuated’ as to be incapable of supporting a find­
ing of de jure segregation warranting judicial inter­
vention” (Dayton Pet. App. 171a, quoting Keyes v. 
School District No. 1, supra, 413 U.S. at 211). The 
court also found (Dayton Pet. App. 159a, 171a) the 
subsequent conversion of Dunbar into all-black Mc- 
Farlane Elementary and the opening of the new Dun­
bar High as an all-black school were non-discrimina- 
tory because they were consistent with the Board’s 
policy of assigning children to the nearest school.

3. Site selection

Between 1950 and 1972 the Board opened 24 new 
schools, 22 of which opened with more than 90% 
enrollment of students of one race (Dayton Pet. App. 
173a). The court described the Board’s process of 
site selection as “ a most imprecise science” that “ ap­
proached the level of haphazard in some instances” 
(Dayton Pet. App. 173a). It concluded (Dayton Pet. 
App. 174a-176a) that the defendants’ evidence that 
racial considerations played no part in site selections 
was virtually undisputed for most schools, and that 
in the case of Roth, Gardendale, Highview, and Miami 
Schools, that the preponderance of evidence showed 
no segregative intent.10 6 *

6 In 1971 the Board reorganized its school structure and
created five middle schools (Dayton Pet. App. 157a). The 
court found that the reorganization had both an integrative 
and a segregative effect and that there was no evidence of a 
segregative purpose (Dayton Pet. App. 158a).



24

C. The court of appeals’ second decision

The court of appeals reversed, holding many of the 
district court’s findings clearly erroneous (Dayton 
Pet. App. 189a-217a).

1. The creation of a dual system prior to Brown I

The court of appeals first held that the district 
court had erred in concluding (Dayton Pet. App. 
75a) that the Dayton Board of Education was not 
operating a dual school system at the time of the 
decision in Brown v. Board of Education, 347 U.S. 
483 (1954) (Dayton Pet. App. 194a-205a). The 
court of appeals found that in the 1951-1952 school 
year “ the Dayton school board pursued an overt pol­
icy of faculty segregation and, through a variety of 
measures, endeavored to segregate pupils on a racial 
basis” (Dayton Pet. App. 195a).

The court noted that the underlying facts were 
essentially undisputed (Dayton Pet. App. 196a). In 
the 1951-1952 school year, 77.6% of all the students 
in the Dayton system attended schools in which one 
race accounted for 90% or more of the students, and 
54.3% of the black students attended four schools 
that were 100% black (Dayton Pet. App. 197a). 
The faculty at each of the four 100% black schools 
was 100% black (Dayton Pet. App. 196a). With 
only one exception, the faculty at all other schools 
in the system was 100% white (ibid.). Until 1951, 
the Board’s explicit policy was to assign no black 
teacher to a white or mixed classroom (Dayton Pet. 
App. 195a). In 1951 the policy was changed to an



25

equally unacceptable one of “ introducing] negro 
teachers, gradually, into schools having mixed or 
white populations when there is evidence that such 
communities are ready to accept negro teachers” 
(Dayton Pet. App. 195a n .l l ) .

The court found that the four all-black schools, 
which in 1952 served more than half of the black stu­
dents in the Dayton system, had been earmarked as 
black schools by official purposeful discriminatory 
action.

Garfield was the site of intra-school racial segrega­
tion that began in 1912 (Dayton Pet. App. 198a). 
Even after the Dayton Board’s practice was specifically 
held to be unlawful in a decision by the Ohio Su­
preme Court in 1926, racial segregation at Garfield 
persisted (ibid.). During the 1930’s, the Board per­
mitted white students assigned to Garfield to transfer 
to predominantly white schools, so that by 1936 Gar­
field had become all black (Dayton Pet. App. 198a- 
199a). The Board then assigned an all-black faculty 
to the school, and thereafter Garfield was maintained 
as an all-black school (Dayton Pet. App. 199a).

Dunbar was intentionally established as a school 
for blacks only, and blacks from throughout the dis­
trict were automatically assigned or induced to at­
tend Dunbar, although in many cases they had to cross 
attendance boundaries to do so (Dayton Pet. App. 
199a). The Board’s intentional operation of Dunbar 
as an all-black school until it closed in 1962 had the 
effect of keeping other high schools throughout the 
district predominantliy white during those years 
(Dayton Pet. App. 200a).



26

During the 1940’s, the Board permitted white stu­
dents to transfer to predominantly white schools 
(Dayton Pet. App. 201a). In 1945 Wogamon closed 
with an all-white staff and reopened the following 
school year with an all-black faculty and black prin­
cipal (ibid.). Wogamon subsequently became and 
remained all black (ibid.).

Similarly, the Board permitted whites to transfer 
out of Willard so that by 1935 it was overwhelmingly 
black (ibid.). The Board then assigned an all-black 
faculty and the remaining whites left (ibid.).

There was also evidence of other officially sanc­
tioned racial separation. Separate swimming pools 
and locker rooms were maintained for black and 
white students at Roosevelt High School until ap­
proximately 1950 (Dayton Pet. App. 201a). More­
over, in the late 1940’s and early 1950’s, the Board 
operated one-race classrooms in housing projects that 
were strictly segregated according to race (ibid.).

In light of these fundamentally undisputed facts, 
the court of appeals found that at least from the 
early 1900’s to the early 1950’s Dayton operated two 
school systems, one primarily for white students, and 
the other primarily for blacks (Dayton Pet. App. 
204a-205a). It held that there was “ ample evidence 
to support the finding that at the time of Brown I 
defendants were carrying out ‘a systematic program 
of segregation affecting a substantial portion of the 
students, schools, teachers, and facilities’ ” (Dayton 
Pet. App. 202a (footnote omitted), quoting Keyes v. 
School District No. 1, supra, 413 U.S. at 201). It



27

held (Dayton Pet. App. 202a-203a; footnote omitted) 
that “ [t] he district court failed to attribute the proper 
legal significance to the deliberate policy of faculty 
segregation which, at the time of Brown I, made it 
possible to identify a ‘black school’ in the Dayton 
system without reference to the racial composition 
of pupils,” and to the fact that Garfield, Willard, 
Wogamon and Dunbar were segregated due to de­
fendants’ actions. These facts, the court found, “were 
sufficient to constitute a prima facie violation of 
the fourteenth amendment under the rule of Swann 
[v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1, 18 (1971),] and to shift the burden of proof 
to defendants.”

The court concluded that the district court also 
erred in failing to recognize that discriminatory pur­
pose and intent may be inferred from circumstantial 
evidence and may be established by the use of reason­
able presumptions (Dayton Pet. App. 203a). Quoting 
Oliver v. Michigan State Board of Education, 508 
F.2d 178, 182 (6th Cir. 1974), cert, denied, 421 
U.S. 963 (1975), the court observed (Dayton Pet. 
App. 203a) that “ ‘ [a] presumption of segregative 
purpose arises when plaintiffs establish that the nat­
ural, probable, and foreseeable result of public offi­
cials’ action or inaction was an increase or perpetua­
tion of public school segregation.’ ”  The court found 
(Dayton Pet. App. 204a) that the evidence in the 
instant case “clearly establishes that the natural, 
probable and foreseeable result of defendants’ actions 
was the creation and perpetuation of a dual school



28

system.”  The court also held that the district court 
had ignored the teaching of Keyes v. School District 
No. 1, supra, 413 U.S. at 208, that once there is “a 
finding of intentionally segregative school board ac­
tions in a meaningful portion of a school system” the 
burden shifts to the defendants to show that other 
racially imbalanced schools are not the result of in­
tentional segregation.

Employing these standards, the court of appeals 
held (Dayton Pet. App. 204a-205a) that the defend­
ants had not shown that the character of the 1954 
school district was not the result of their racially seg­
regative actions. It also held (id. at 205a) that the 
effect of “ defendants’ segregative practices at the 
time of Brown I infected the entire Dayton public 
school system.”

2. The Board’s conduct subsequent to Brown I

The court of appeals concluded (Dayton Pet. App. 
205a) that the district court’s failure to recognize 
that the defendants were operating a dual system at 
the time of the Brown decision had resulted in that 
court’s “ failure to evaluate properly the Board’s post- 
Brown I  actions, which must be judged by their 
efficacy in eliminating the continuing effects of past 
discrimination.” Despite the fact that the defendants 
had been under a duty to dismantle this dual system 
since 1954, the district court had specifically found 
(Dayton Pet. App. 150a, 206a) that “with one ex­
ception * * * no attempt was made to alter the racial 
characteristics of any of the schools” ; moreover, the 
only attempt that was made was a failure. The dis­



29

trict court, however, “neither charged defendants with 
the affirmative duty to eliminate the effects of their 
discrimination nor did it place upon the Board the 
burden of proving that it had done so” (Dayton Pet. 
App. 206a). The court found (ibid.) that the record 
not only “ demonstrates convincingly that defendants 
have failed to eliminate the continuing systemwide 
effects of their prior discrimination,” but also that 
the defendants “have intentionally maintained a seg­
regated school system down to the time the com­
plaint was filed in the present case.” The court also 
found (ibid.) that there was also evidence of actions 
by the Board subsequent to 1954 that “actually have 
exacerbated the racial separation existing at the time 
of Brown I.”

a. Faculty assignments

The court of appeals found that the Board contin­
ued to assign faculty on the basis of race until at 
least the 1970-1971 school year, and held that the 
district court’s finding to the contrary was clearly 
erroneous (Dayton Pet. App. 206a). Moreover, the 
Board’s systematic discrimination in faculty assign­
ments made it reasonable to presume that other prac­
tices of the Board were likewise undertaken with 
segregative intent (Dayton Pet. App. 207a). For 
example, when old all-black Dunbar was closed in 
1962, it reopened that fall as the all-black McFarlane 
Elementary School, and a new (and overwhelmingly 
black) Dunbar High School was opened at the same 
time (ibid.). The all-black Garfield and Willard 
schools were also closed at this time and most of



30

their students were assigned to McFarlane or to 
other identifiably black schools (Dayton Pet. App. 
207a). Both McFarlane and the new Dunbar were 
assigned virtually all-black faculties (ibid.).

The court held (ibid.) that the Board had failed 
to rebut “ the reasonable presumption that the simul­
taneous assignment of both a predominantly black 
faculty and student body at these schools was the 
product of segregative intent and an effort to per­
petuate the dual school system extant at the time of 
Brown I.”

The court also found (Dayton Pet. App. 209a) that 
“ [njowhere in the record have defendants demon­
strated that the present systemwide racial imbalance 
would have occurred even in the absence of their 
segregative acts.”

3. Optional attendance zones

The court found (Dayton Pet. App. 209a) that the 
Board’s use of optional zones for racially discrimina­
tory purposes bolstered the conclusion that racial- 
imbalance within the Dayton school system was “not 
merely adventitious.” The appellate court found that 
the district court’s repudiation of its earlier findings 
of segregative intent and effect were clearly errone­
ous, and was the result of its failure to apply the 
proper standards for determining segregative intent 
and to shift the burden of proof to defendants once 
plaintiffs made a prima facie case (Dayton Pet. App. 
210a).



31

4. School construction

The court of appeals held the district court’s find­
ing that the Board’s site selections were not segrega­
tive in purpose and effect to be clearly erroneous, 
concluding that the Board’s pattern of school con­
struction “unmistakably increased or maintained 
racial isolation”  (Dayton Pet. App. 211a). The co­
ordinate assignment of faculty on a racial basis rein­
forced the natural inference that these decisions 
were racially motivated (ibid.). The court found no 
evidence that the Board’s construction practices were 
motivated by racially neutral policies (ibid.).

5. Reorganization of grade structure

The court of appeals held (Dayton Pet. App. 213a) 
that the district court had erred in failing to recog­
nize the Board’s conversion in 1971 to a system of 
middle schools as a component of the Board’s dual 
system. That conversion was characterized by the 
Ohio Department of Education in a 1971 report as 
offensive to the Constitution and degrading to school 
children (Dayton Pet. App. 212a). And unrebutted 
expert testimony concluded that its effect was to 
maintain or increase segregation (Dayton Pet. App. 
213a).

Upon consideration of the entire record the court 
concluded that (ibid .):

rather than eradicate the systemwide effects of 
[their] dual system extant at the time of Brown 1 
defendants’ racially motivated policies with re­



32

spect to the assignment of faculty and students, 
use of optional attendance zones, school construc­
tion and site selection, and grade structure and 
reorganization perpetuated or increased public 
school segregation in Dayton.

Focusing on the effects of these violations, the court 
held that the district court had erred in examining 
each alleged constitutional violation as if it were an 
isolated occurrence and in placing the burden on the 
plaintiff to show the precise incremental segregative 
effect of each such occurrence (Dayton Pet. App. 
215a). Because plaintiffs had shown “ a systemwide 
pattern of intentionally segregative actions” it was 
reasonable to presume that these discriminatory prac­
tices had contributed to segregation throughout the 
school system (Dayton Pet. App. 216a). The Board 
had not rebutted the presumption that the current 
racial composition of the schools had been affected by 
the systemwide impact of its segregative acts, and 
accordingly the court reinstated the systemwide rem­
edy it had approved on the prior appeal (Dayton 
Pet. App. 216a-217a)d

7 This plan was drafted in accordance with an earlier order 
of the district court. The remedial order permitted the Board 
to choose among various plans and techniques, subject only 
to the requirement that each school in the system have no 
less than 33% nor more than 63% black students (Dayton 
Pet. App. 102a-103a). The court provided that “ where a 
specific school should deviate further from the foregoing per­
centages by reason of geographic location, the Court will 
consider such instances on a school-by-school basis” (Dayton 
Pet. App. 104a), and it further provided that “ [v] ariations 
from the [percentage range] may be permitted in exceptional



33

D. The Board’s stay applications

The court of appeals denied the Board’s applica­
tion for a stay of its order on August 21, 1978 (Day- 
ton A. V III). On August 28, 1978, Mr. Justice Stew­
art also denied a stay, and on further application 
Mr. Justice Rehnquist denied a stay on August 30, 
1978 (ibid.). The plan has therefore remained in 
effect.

SUMMARY OF ARGUMENT 

I

Both the Dayton and Columbus school systems 
exhibit extreme conditions of racial separation. The 
plaintiffs had the burden of showing that these con­
ditions resulted from the Boards’ intentional policy of 
segregation. In both cases the record fully supports 
the court of appeals’ conclusion that plaintiffs proved 
the existence of systemwide policies of intentional 
racial segregation.

A. The court of appeals properly began its analy­
sis of the causes of the current conditions in the 
Dayton and Columbus schools with a review of the 
virtually undisputed evidence that in the early 1900’s 
the Boards created separate school systems for white 
and black students, which they maintained and oper-

circumstances without destroying the desegregation * * *” 
(Dayton Pet. App. 106a). The court granted an exception for 
high school juniors and seniors (Dayton Pet. App. 103a). 
The Dayton school system is sufficiently compact that exces­
sive travel times are not involved. The court-appointed Master 
concluded that the longest travel time should not much exceed 
twenty minutes (Dayton A. 39).



34

ated until at least the 1950’s. In both eases, the 
Board isolated most black students in a small enclave 
of schools, thereby ensuring that the remainder of 
the schools would be exclusively, or predominantly, 
white. Moreover, black teachers were assigned only 
to schools with black students. Since this evidence 
established a systematic program of state-enforced 
segregation affecting a substantial portion of the 
Dayton and Columbus school districts, the court of 
appeals correctly concluded that petitioners were 
operating dual systems for white and black students 
at the time of the decision in Brown v. Board of 
Education, 349 U.S. 294 (1955).

In urging that their conduct at the time of the 
Brown decision has little relevance to current condi­
tions, petitioners ignore the crucial point that even 
racially neutral policies may effectively maintain and 
perpetuate an entrenched dual system. In the face 
of the evident potential for perpetuation of their de­
liberately established dual systems, petitioners’ fail­
ure to take meaningful steps to convert these dual 
systems to unitary systems violated their constitu­
tional duty to eliminate their unlawful dual systems 
“ root and branch.” Although the impact of past 
segregative acts may eventually become too attenu­
ated to warrant remedial action, petitioners did not 
establish that the current racial separation in the 
schools was not the result of their past segregative 
acts.

B. But the court of appeals did not rest its find­
ings of systemwide discrimination solely on proof



35

of unremedied historical practices of racial discrimi­
nation. Respondents offered substantial evidence that 
the Boards’ intentional discrimination continued to 
the present, and the court of appeals expressly based 
its findings of systemwide segregation on those re­
cent practices, as well as the past practices just de­
scribed. In determining whether the Boards inten­
tionally maintained segregative policies, the court of 
appeals properly evaluated the Boards’ contemporary 
practices in light of its findings regarding the 40- 
year history of intentional segregation in the design 
and operation of these school systems, which gave 
rise to a strong inference that both Boards contin­
ued to practice racial discrimination.

1. The court of appeals attributed substantial 
weight to the evidence that until the early 1970’s—  
when state and federal enforcement agencies inter­
vened— the Columbus and Dayton Boards continued 
to practice overt systemwide racial discrimination in 
faculty assignments. The evidence of the Boards’ con­
tinuing assignment of teachers on the basis of race 
convincingly rebutted their contention that after the 
early 1950’s they abandoned their segregative policies 
and adopted a racially neutral neighborhood school 
policy. As the court of appeals pointed out in the 
Columbus case (Columbus Pet. App. 174), “ [ojbvi- 
ously it was no ‘neutral’ neighborhood school concept 
which occasioned generations of black teachers to be 
assigned almost exclusively to black schools until the 
Ohio Civil Rights Commission complaint was settled 
in July of 1974.”



36

2. The court of appeals concluded that the Boards 
also continued to manipulate their neighborhood 
school policies to separate students on the basis of 
race. The court found that both the Dayton and 
Columbus Boards deviated from the neighborhood 
school concept in ways that can rationally be under­
stood only as part of an overall policy to maintain 
racial segregation. Both Boards employed optional 
attendance zones— which are not consistent with the 
neighborhood school concept— in neighborhoods under­
going racial transition, without an adequate educa­
tional or administrative explanation. In Dayton, the 
Board operated a district-wide all-black high school 
until 1962, when it closed this school and opened a 
new school with a virtually all-black student body 
and facility. In Columbus, the Board made boundary 
changes that removed white residential areas from 
predominantly black areas, and operated noncontigu­
ous attendance zones where white students were 
bused past black schools. The court found no satis­
factory nonracial explanation for these actions. The 
Boards’ construction programs were clearly segrega­
tive in effect. In Dayton, 22 of the 24 schools con­
structed since 1950 opened with a student body that 
was 90% or more black or white (Dayton Pet. App. 
210a). Particularly in light of their history of de­
liberate segregation, the pattern of the Boards’ rejec­
tion of sites that were compatible with a neighbor­
hood school policy and that would have had an inte­
grative effect gave rise to an inference that the 
Boards’ decisions were intended to encourage racial



37

separation. Again, neither Board rebutted this in­
ference.

The court of appeals properly treated the Boards’ 
choice of policies that had the natural and foresee­
able consequence of creating and maintaining racial 
separation as evidence that the Boards had segrega­
tive intent. The court correctly recognized that dis­
parate effect is not the equivalent of purposeful dis­
crimination. But evidence of disparate effect may 
provide an important starting point in establishing 
the presence of discriminatory purpose.

The segregative effect of the Boards’ policies was 
simply one of many factors tending to show the 
Boards’ intent. The court of appeals’ findings of seg­
regative intent rested on the patterns that emerged 
from both direct and circumstantial evidence estab­
lishing that the Boards’ actions in both cases were 
motivated by racial considerations. In characterizing 
their acts of discrimination as isolated rather than 
systemwide, the Boards apparently assume that a 
systemwide policy or practice cannot be shown with­
out noncircumstantial proof, on a school-by-school 
basis, of racially motivated Board actions. That is 
not, and never had been, the plaintiffs’ burden of 
proof in a desegregation case. Normal evidentiary 
principles apply to the determination whether the 
plaintiffs have proved that school officials followed a 
general policy of racial discrimination. The court of 
appeals correctly concluded that the evidence in these 
cases demonstrates systemwide segregation.



38

II

Dayton I  emphasizes that in formulating a reme­
dial decree in a school desegregation case, the court 
must tailor the remedy to fit the nature and extent 
of the violation. Since the purpose of the remedy is 
to correct the condition that offends the Constitution, 
a systemwide remedy may be ordered only where 
school officials’ segregative policies have had a system- 
wide impact. Applying these principles, the court of 
appeals correctly concluded that because of the system- 
wide impact of the Boards’ policies, systemwide relief 
was warranted. The remedies here were designed to 
convert the dual systems to unitary systems, eliminat­
ing all vestiges of prior segregation in Dayton and 
Columbus “ root and branch.”

Petitioners argue that despite the findings that they 
maintained systemwide segregative policies, under 
Dayton I  respondents had the further burden of prov­
ing the precise degree to which petitioners’ segrega­
tive policies caused the current conditions of racial 
separation, wholly apart from other factors such as 
residential patterns. In petitioners’ view, respond­
ents failed to carry this burden.

Dayton I  does not support petitioners’ claim. Al­
though the opinion in Dayton l did not directly 
address the central issue here— the proper alloca­
tion of the burden of proof at the remedial stage 
when a court is formulating a decree to eliminate all 
vestiges of systemwide discrimination “ root and 
branch” — it does cite and follow Keyes v. School Dis­
trict No. 1, 413 U.S. 189 (1973), and Swann v.



89

Charlotte-Mecklenburg Board of Education, 402 U.S. 
1 (1971), which establish the governing principles 
here.

1. Keyes and Swann establish that once a system- 
wide violation has been shown, a systemwide remedy 
will be imposed unless school officials show that some 
portion of the racial separation is not attributable to 
their discriminatory conduct. Once systemwide dis­
criminatory practices have been proved, the court 
should rebuttably presume that those practices 
achieved their full potential in contributing to the 
current racial separation in the schools. The burden 
then shifts to school officials to show the extent to 
which racial separation would have existed in the 
absence of such discrimination. This is consistent 
with the established principle that the perpetrator of 
a constitutional wrong has the burden of showing that 
his violation was without, or was of only limited, ef­
fect. School officials are in the best position to pro­
duce evidence on this question.

As a practical matter, if plaintiffs were required 
to show the precise effects of official discrimination 
while school officials who had engaged in systematic 
discrimination stood silent, the plaintiffs in school 
desegregation cases would often face an insuperable 
burden. It is extremely difficult to calculate the 
precise effects of a pervasive pattern of discrimina­
tion by school officials. Certainly the effects are not 
limited to the immediately perceptible changes in the 
racial composition of the student body. The identifi­
cation of schools by race may have a profound recip­



40

rocal effect on the racial makeup of the surround­
ing neighborhood. Under general remedial principles 
the task of proving what would have happened in the 
absence of the constitutional violation should be placed 
on the wrongdoers, not their victims.

Where it is not possible to separate the effects of 
official segregation from other factors that may have 
encouraged racial separation, this uncertainty should 
not preclude an effective remedy. The victims of 
purposeful school discrimination are entitled to a 
remedy that eliminates all vestiges of prior discrim­
ination “ root and branch.” A systemwide remedy 
will accomplish this end, and school officials who be­
lieve a more limited decree will remedy the violations 
have the burden of proving that such a decree will 
effectively do so.

2. The court of appeals correctly approved system- 
wide remedies in these cases, because the Boards did 
not establish that less extensive remedies would cure 
the “ incremental segregative effects” of the system- 
wide policies of discrimination on the basis of race. 
In each case the court shifted the burden to the 
Board to show that the racial composition of the stu­
dent bodies was not caused by the Board’s system- 
wide segregative policies. The Boards adopted an 
all or nothing approach on the issue of remedy. 
Neither demonstrated that any portion of the racial 
separation in its district would have occurred in the 
absence of its segregative conduct. Although both 
Boards contend that the racial composition of the 
schools merely reflects the residential patterns in



41

each city, they offered no proof that the residential 
patterns developed independently of the prescribed 
racial character of the schools. Respondents— although 
it was not their burden to do so— presented undis­
puted expert testimony that a pattern of systematic 
school discrimination does affect residential decision­
making.

3. The remedial principles of Keyes and Swann—  
which are grounded on considerations of “ ‘fairness’ 
and ‘policy’ ’ ’— are not inconsistent with Dayton I, 
and there is no justification for petitioners’ contention 
that Keyes and Swann should be overruled. The 
principles announced in those cases have proved a 
practical and effective means of eliminating the ef­
fects of longstanding pervasive discrimination in vio­
lation of the Fourteenth Amendment. Those decisions 
have provided the basis for desegregation plans now 
in operation in hundreds of school districts through­
out the United States.

ARGUMENT
I

THE COLUMBUS AND DAYTON SCHOOL BOARDS EN­
GAGED IN SYSTEMWIDE POLICIES OF INTENTIONAL 
RACIAL SEGREGATION

The Columbus and Dayton school systems exhibit 
conditions of extreme racial separation. In Columbus, 
32% of all public school children are black (Columbus 
Pet. App. 19). Yet about 70% of all students at­
tend schools that are more than 80% white or 80% 
black (Columbus Pet. App. 18). Of the Columbus



42

system’s 172 schools, 137 are “ racially identifiable”—  
that is, their racial compositions are substantially dif­
ferent from the district-wide percentage. One half 
of the Columbus schools are more than 90% black 
or 90% white (Columbus Pet. App. 163). In Dayton, 
slightly less than 50% of all public school children 
are black (Dayton A. 34-35). Racial separation is 
even more pronounced in Dayton than in Columbus. 
Of the 69 public schools in Dayton, 51 are virtually 
all-white or all-black (Dayton Pet. App. 149a-150a).

The court of appeals correctly recognized (Co­
lumbus Pet. App. 150; Dayton Pet. App. 202a) that 
these conditions of racial separation, standing alone, 
do not violate the Constitution. See, e.g., Dayton I, 
supra, 433 U.S. at 417; Washington v. Davis, 426 
U.S. 229, 240 (1976). The plaintiffs in each of these 
cases had the burden of proving “ not only that seg­
regated schooling exists but also that it was brought 
about or maintained by intentional state action.” 
Keyes v. School District No. 1, supra, 413 U.S. at 198.

In these two cases the court of appeals’ findings of 
systemwide intentional segregation were premised on 
similar subsidiary factual findings. First examining 
historical practices, the court of appeals found that 
continuously until the early 1950’s both the Dayton 
and Columbus school boards had deliberately iso­
lated most black students into small enclaves of all- 
black schools (Dayton Pet. App. 202a-203a; Columbus 
Pet. App. 155-160). During the same period, the 
Boards did not permit black teachers to teach in 
white schools (Dayton Pet. App. 202a-203a; Colum­



43

bus Pet. App. 157-159). Turning to more contem­
porary practices, the court of appeals found that the 
Dayton Board and the Columbus Board both con­
tinued to assign faculty by race until the early 1970’s, 
and that this discrimination in faculty assignments 
ended only upon the intervention of governmental 
agencies (Dayton Pet. App. 206a; Columbus Pet. 
App. 173-174). As for student assignments since 
the 1950’s, the court of appeals found that neither 
the Dayton nor the Columbus Board had followed a 
consistent neighborhood school policy. Rather, both 
engaged in a number of manipulative practices which 
were designed to separate the races. Those practices 
included, in both cases, discriminatory site selections 
for new schools and the use of optional attendance 
zones to avoid integration (Dayton Pet. App. 210a- 
212a; Columbus Pet. App. 168-173). In addition, the 
court concluded that the Dayton Board had reorgan­
ized the system’s grade structure so as to create 
middle schools that would increase or maintain seg­
regation (Dayton Pet. App. 212a-213a). The Co­
lumbus Board, in turn, used a number of classically 
segregative devices, including redrawing school 
boundary lines, adopting noncontiguous attendance 
zones, and busing white students past black schools 
(Columbus Pet. App. 194-195). Finally, the court of 
appeals found that neither school board took any 
meaningful steps to dismantle the dual school sys­
tems they had created (Dayton Pet. App. 213a; Co­
lumbus Pet. App. 198).



44

Both petitions raise the question whether these 
findings constitute a sufficient predicate for the con­
clusion that the Boards had engaged in systemwide 
policies of segregation warranting remedial judicial 
action. They argue that in finding there was system- 
wide segregation the court of appeals erroneously 
gave controlling significance to the Boards’ past seg­
regative practices, and improperly required petition­
ers to shoulder the burden of proving that the cur­
rent racial imbalance is not the result of their past 
segregative practices. Finally, petitioners urge that 
the court of appeals improperly held conduct designed 
to serve legitimate educational objectives to be pur­
posefully discriminatory merely because racial sep­
aration was a foreseeable consequence.

The Dayton Board of Education also challenges 
(Br. 26-39) the subsidiary findings of the court of 
appeals, arguing that the appellate court erred in set­
ting aside the district court’s findings on the segrega­
tive purpose and effect of the Board’s post-Brown I 
conduct. Since our primary concern is the common 
legal issues raised by these two petitions, we will not 
here undertake a review of the evidence supporting 
the court of appeals’ subsidiary factual findings. We 
note, however, that after a thorough review of the 
record the United States filed an amicus brief in the 
court of appeals urging that the district court’s find­
ings in the Dayton case were clearly erroneous, and 
we generally concur in respondents’ detailed analysis 
(Br. 9-67) of the evidence supporting the court of 
appeals’ findings.



45

A. The Causes of Current Racial Separation In The 
Columbus And Dayton Schools Must Be Evaluated 
In Light Of The Historical Creation And Maintenance 
Of Dual Systems

The court of appeals concluded that from the early 
1900’s through the 1950’s, the Columbus and Dayton 
Boards of Education unquestionably created and op­
erated dual systems of education. To be sure, Ohio 
law prohibited compulsory segregation, and the school 
boards therefore could not overtly segregate every 
student within the system. But the record shows that 
petitioners nonetheless sought to segregate the races 
to the greatest possible degree. By a variety of 
manipulative devices, each Board established a small 
enclave of schools for blacks and was able to isolate 
most black students in these schools. The isolation 
of black students had the obvious reciprocal effect of 
earmarking other schools in both systems as iden- 
tifiably for whites. See Keyes v. School District No. 
1, supra, 413 U.S. at 201 & n.12. The Boards’ dis­
criminatory intent was also manifested in their strict 
policy of assigning black teachers only to schools with 
black students. And in Dayton, the intensity of that 
Board’s discrimination led the district court to char­
acterize the mistreatment of black students as “ in­
humane,”  “ reprehensible” and “ inexcusable” (Dayton 
Pet. App. 149a). Not only did the Dayton Board 
of Education intentionally confine black children to 
a segregated education, it even overtly segregated 
swimming pools, locked rooms and athletic competi­
tions (Dayton Pet. App. 201a).



46

Petitioners scarcely dispute the fact that they prac­
ticed far-reaching and systematic racial discrimina­
tion in student and faculty assignments for many 
years, at least until the early 1950’s. They urge, 
however, that the court of appeals erred in finding 
that they were operating dual systems, and further 
erred in finding that these historical practices had 
current significance.

1. Petitioners erroneously contend (Columbus Br. 
69-70; Dayton Br. 16) that the segregated conditions 
they created and maintained could not— even in the 
early 1950’s— properly be characterized as “ dual sys­
tems.” Petitioners emphasize that Ohio law did not 
mandate racial separation, and that many black stu­
dents attended schools with whites. A similar argu­
ment was squarely rejected in Keyes v. School Dis­
trict No. 1, supra, 413 U.S. at 198-205, where there 
was no statutory dual system, and this Court held 
that evidence of the school board’s deliberate, segre­
gation in Park Hill city schools— affecting 37.69% of 
the total black student population, as well as teachers 
and staff— sufficiently supported a finding of a dual 
system. Where “ school authorities have carried out 
a systematic program of segregation affecting a sub­
stantial portion of the students, schools, teachers, and 
facilities within the school system, it is only common 
sense to conclude that there exists a predicate for a 
finding of the existence of a dual school system.” 
413 U.S. at 201. Unless there is a showing that the 
geographic structure of a district or natural bound­
aries divide it into “ separate, identifiable and un­



47

related units,” 8 Keyes holds that “proof of 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.” 413 U.S. 
at 203.

The records establish that such a systematic pro­
gram of state-imposed segregation in a substantial 
portion of the Dayton and Columbus districts existed 
at the time of Brown I, and accordingly the court of 
appeals correctly concluded that petitioners had op­
erated dual school systems for whites and blacks.

2. Petitioners argue that even if they were op­
erating dual systems at the time of the Brown I  de­
cision, in view of the “ evidence of a myriad of in­
tervening events and forces” their conduct more than 
20 years ago is of little value in determining whether 
the Columbus or Dayton schools “were unconstitu­
tionally segregated at the time this case was tried” 
(Columbus Br. 70; see Dayton Br. 16-18).

a. Petitioners ignore the fact that even if it is 
assumed that their segregative intent ended in the 
early 1950’s, “ neutral” practices thereafter could 
simply perpetuate and maintain the dual system. “ In­
tentional school segregation in the past may have been 
a factor in creating a natural environment for the 
growth of further segregation.”  Keyes v. School Dis­
trict No. 1, supra, 413 U.S. at 211. When a school 
board has through pervasive techniques isolated most 
black students and faculty in an enclave of schools, the

8 There is no contention that Dayton or Columbus is divided 
into separate unrelated units. See Dayton Pet. App. 205a n.43.



48

unmistakable message that these schools are earmarked 
for blacks while many others are reserved for whites 
“ may have a profound reciprocal effect on the racial 
composition of residential neighborhoods within a 
metropolitan area, thereby causing further racial con­
centration within the schools.”  413 U.S. at 202. Sub­
sequent neighborhood zoning practices, no matter how 
scrupulously “ neutral,” may have the direct effect of 
“ further !ock[ing] the school system into the mold 
of separation of the races.” Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 21 
(1971). See also id. at 28. Thus, the effect of build­
ing upon a dual system already in place may be only 
to preserve its existence.

b. Moreover, in the face of the clear potential for 
perpetuating their dual systems, petitioners took no 
meaningful affirmative steps to convert their dual 
systems into unitary ones without “  ‘white’ school [s] 
and * * * ‘Negro’ school [s], but just schools.” Green 
v. County School Board, 391 U.S. 430, 442 (1968). 
Petitioners therefore violated their constitutional duty 
to eliminate promptly their entrenched dual systems 
“ root and branch.” Id. at 438. Nevertheless, they 
now argue that their long-standing practices of racial 
discrimination and their persistent refusals to elimi­
nate the effects of those practices must be discounted 
solely because of the passage of time, and that re­
spondents bear the burden of proving the extent to 
which the current conditions of segregation in each 
system are causally related to the historical creation 
and maintenance of the dual systems.



49

Keyes provides the full response to these conten­
tions. In Keyes the Court acknowledged 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 find­
ing of de jure segregation warranting judicial inter­
vention.” 413 U.S. at 211. But it concluded that 
“ certainly plaintiffs in a school desegregation case 
are not required to prove ‘cause’ in the sense of ‘non- 
attenuation.’ That is a factor which becomes rele­
vant only after past intentional actions resulting in 
segregation have been established. At that stage, the 
burden becomes the school authorities’ to show that 
the current segregation is in no way the result of 
those past segregative actions.” 413 U.S. at 211 n.17. 
Finally, Keyes holds that unless the school board can 
prove it had no segregative intent,9 “ it can rebut the 
prima facie case only by showing that its past segre­
gative acts did not create or contribute to the current 
segregated condition.” 413 U.S. at 211.

The court of appeals’ decisions reflect careful ad­
herence to the principles expressed in Keyes. Peti­
tioners contend (Columbus Br. 70-73 & n.38) that 
in applying the Keyes presumption, the court of ap­
peals failed to follow Dayton I, which, they argue,

s The Court expressly “ reject[ed] any suggestion that re­
moteness in time has any relevance to the issue of intent,” 
holding that “ [ i ] f  the actions of school board authorities 
were to any degree motivated by segregative intent and the 
segregation resulting from those actions continues to exist, 
the fact of remoteness in time certainly does not make those 
actions any less ‘intentional.’ ” 413 U.S. at 210-211.



50

overrules or limits Keyes. To the contrary, however, 
although Dayton I does not specifically address the 
procedure the lower courts should follow in making 
liability findings, it cites Keyes (433 U.S. at 410, 
420; id. at 421, 423 (Brennan, J., concurring)), and 
nowhere suggests that in making the “ complex factual 
determinations” required on remand the district court 
should not apply the principles established in Keyes.

Accordingly, the court of appeals correctly con­
cluded that neither the Columbus Board nor the Day- 
ton Board had shown that its past segregative acts 
did not create or contribute to the current segregated 
condition of the schools (Columbus Pet. App. 165- 
166; Dayton Pet. App. 208a-209a). Thus, even if the 
Columbus and Dayton Boards had shown that they 
ceased practicing intentional discrimination in the 
1950’s, judicial remedial action would have been 
warranted.

B. The Boards’ More Contemporary Practices Delib­
erately Perpetuated And Increased Racial Separation 
In Their School Systems

But the court of appeals’ findings of systemwide 
discrimination in the present cases do not rest solely 
on proof of historical practices. Respondents offered 
substantial evidence that the Boards’ intentional dis­
crimination continued to the present, and the court of 
appeals expressly based its findings of systemwide seg­
regation on those recent practices taken against the 
background of the past practices just described. In 
making these findings of current segregative policies 
and practices, the court of appeals correctly concluded



51

that the evidence did not support the Boards’ claims 
that they were operating a neutral neighborhood 
school system, but rather showed an overall policy of 
promoting racial separation. The court correctly con­
sidered the fact that racial separation was a foresee­
able effect of a neighborhood school policy as a factor 
in determining the Boards’ intent. It did not, as pe­
titioners charge (Columbus Br. 81-95; Dayton Br. 
20-26), simply equate intent to discriminate with the 
fact of disproportionate impact.

1. The Boards’ current practices were evaluated in 
light of their history of discrimination

In determining whether the Boards had maintained 
and continued their policies of segregation, the court 
of appeals correctly evaluated the Boards’ contem­
porary practices in light of their past discriminatory 
practices. As this Court explained in Village of 
Arlington Heights v. Metropolitan Housing Corp., 
429 U.S. 252, 267 (1977), in determining whether 
invidious discriminatory purpose/ is a motivating 
factor, the “historical background” of official action 
is an important evidentiary source— “particularly 
if it reveals a series of official actions taken for 
invidious purposes.”  Absent some cogent explanation, 
it should not be lightly assumed that a school board 
that practiced intentional racial discrimination over 
a forty-year period suddenly began to act in a totally 
neutral fashion. See Keyes v. School District No. 1, 
supra, 413 U.S. at 209-210.



52

The court of appeals applied this principle. In the 
Dayton case, the court stated (Dayton Pet. App. 
197a):

We recognize that racial imbalance in student 
attendance is not in itself a constitutional viola­
tion. See Dayton Board of Education v. Brink- 
man, supra, 433 U.S. at 413, 417 (1977); Wash­
ington v. Davis, 426 U.S. 229, 240 (1976); Keyes 
v. School District No. 1, 413 U.S. 189, 198 
(1973). However, such racial imbalance does 
assume increased significance in the historical 
context of repeated intentional segregative acts 
by the school board directed at the four schools 
which were 100 percent black in 1954. See Vil­
lage of Arlington Heights v. Metropolitan Hous­
ing Development Corp., 429 U.S. 252, 267 
(1977).

See also id. at 207a, 209a. The court likewise made it 
clear in the Columbus case that it was undertaking 
its review of the school board’s current practices in 
the context of their “  ‘historical background’ ”  (Co­
lumbus Pet. App. 166, quoting Village of Arlington 
Heights v. Metropolitan Housing Corp., supr â, 429 
U.S. at 267).

This emphasis on the longstanding history of seg­
regation was entirely proper. Although the member­
ship of school boards changes periodically, and iso­
lated or sporadic acts of discrimination may be caused 
by the predilections of individual members, in the face 
of long-standing, continuous, and pervasive acts of 
racial discrimination, courts should carefully scruti­
nize claims that a school board suddenly experienced 
a complete change of heart.



53

Neither the Columbus nor Dayton Board points to 
any event in the early 1950’s indicating that they had 
a dramatic change of purposes.10 The Boards’ actions 
and motivations cannot be neatly compartmentalized 
into discrete time frames. Given the largely undis­
puted findings that the Boards had a forty-year his­
tory of pervasive intentional segregation in the de­
sign and operation of their “neighborhood school” 
systems through at least the early 1950’s, a strong- 
inference arose that they continued to practice racial 
discrimination in the subsequent operations of those 
same systems. See Keyes v. School District No. 1, 
supra, 413 U.S. at 209-212. Cf. Hazelwood School 
District v. United States, 433 U.S. 299, 309 n.15 
(1977), citing, inter alia, 1 J. Wigmore, Evidence § 92 
(3d ed. 1940); 2 J. Wigmore, Evidence §§ 302-305, 
371, 375 (3d ed. 1940).* 11

10 For example, neither Board contends that new members 
were then elected who proposed to alter significantly the pre­
vious policies. Nor did either Board then openly renounce 
its past practices or adopt a formal resolution to achieve 
substantial desegregation. Such a renunciation and resolu­
tion were adopted in Dayton in late 1971, but, following the 
election of a new board, these actions were rescinded (see 
Dayton Pet. App. 180a-185a).

11 In some circumstances, this Court’s 1954 decision in 
Brown V. Board of Education, 347 U.S. 483 (Brown I ) , might 
have introduced new legal obligations and acted as the catalyst 
for a fundamental change in school board policy. Unfortun­
ately, even in those areas of the country where Brown I made 
compulsory segregation illegal, many school boards acted in 
open definance of the decision for more than a decade. See, 
e.g., Swann V. Charlotte-Mecklcburg Board of Education, 
supra, 402 U.S. at 13-14. In any event, Brown I was con-



54

2. The Boards continued to assign faculty by race

As we have shown (supra, pages 6-7, 29-30), for 
two decades following the early 1950’s, the Columbus 
and Dayton Boards continued to practice overt and 
systemwide racial discrimination in faculty assign­
ments. These practices ended in the early 1970’s be­
cause of intervention by federal and state enforce­
ment agencies. In evaluating the Boards’ contentions 
that the continuing racial imbalance in both systems 
was the result of a neutral neighborhood school policy, 
the court of appeals correctly attributed great weight 
to this long history of deliberate racial discrimination 
(Columbus Pet. App. 173-174; Dayton Pet. App. 
206a-207a).( As the court of appeals pointed out in 
the Columbus case (Columbus Pet. App. 174), “ [o]b- 
viously it was no ‘neutral’ neighborhood school con­
cept which occasioned generations of black teachers 
to be assigned almost exclusively to black schools until 
the Ohio Civil Rights Commission complaint was 
settled in July of 1974.”

The court of appeals’ emphasis on the Boards’ 
overt racial discrimination in faculty assignments is 
consistent with this Court’s recognition that faculty 
discrimination is “ among the most important indicia 
of a segregated system. * * * Independent of student

sistent with prior Ohio law, which since 1887 had prohibited 
intentional school segregation. The Columbus and Dayton 
Boards had violated the unambiguous state prohibition 
against segregation since the early 1900’s. There is no basis for 
assuming that the Columbus and Dayton Boards ended prac­
tices that they already knew to be illegal because Brown 1 
held school segregation also violated federal law.



55

assignment, where it is possible to identify a ‘white 
school’ or a ‘Negro school’ simply by reference to the 
racial composition of teachers and staff, * * * a prime 
facie case of violation of substantive constitutional 
rights under the Equal Protection Clause is shown.” 
Swann v. Charlotte-Mecklenburg Board of Education, 
supra, 402 U.S. at 18. As the Ninth Circuit has 
succinctly explained (Kelly v. Guinn, 456 F.2d 100, 
107 (1972), cert, denied, 413 U.S. 919 (1973) (foot­
note omitted):

[TJeacher assignment is so clearly subject to the 
complete control of school authorities, unfettered 
by such extrinsic factors as neighborhood resi­
dential composition or transportation problems, 
that the assignment of an overwhelmingly black 
faculty to black schools is strong evidence that 
racial considerations have been permitted to in­
fluence the determination of school policies and 
practices. “ [T]he school district’s obvious regard 
for race in assigning faculty members and ad­
ministrators is a factor which may be con­
sidered in assessing motives underlying past de­
cisions which resulted in segregation.” Davis v. 
School District of Pontiac, Inc., 443 F.2d 573, 
576 (6th Cir. 1971).

We have argued above that courts should closely 
scrutinize the claim of a school board with a history 
of pervasive discrimination that its policies suddenly 
changed to complete neutrality at a particular time. 
Here, the suggestion of the Columbus and Dayton 
Boards that an abrupt shift in purpose occurred in 
the early 1950’s is refuted by the Boards’ continuing



56

assignments of teachers on an overtly racial basis. 
Petitioners’ behavior was not suddenly transmuted 
into racial neutrality, and no plausible reason has 
been offered to explain why they would have con­
tinued invidiously motivated practices as to teachers 
but not as to students (to whom a pattern and prac­
tice of discriminatory teacher assignments is in­
evitably a lesson in itself). Indeed, the Dayton Board 
publicly articulated its systemwide discriminatory 
policy of not allowing blacks to teach white students 
until the community was “ ‘ready to accept negro 
teachers’ ”  (Dayton Pet. App. 195a-196a n . l l ) .12 
A  strong inference arises that a school board that so 
readily yielded to actual or assumed community op­
position to integration in faculty assignments con­
tinued to allow similar impermissible considerations 
to influence its student assignment policies.

3. The Boards continued to manipulate their “neigh­
borhood school” policies to separate students by 
race

The Columbus and Dayton Boards have attempted 
to explain their student assignment policies since the 
early 1950’s as based entirely on the “neighborhood 
school” concept. In our view, even scrupulous ad­
herence to neighborhood attendance zone assignments 
would not necessarily have absolved petitioners from 
responsibility for the creation and maintenance of a

12 The Board’s policy also provided that it would “ ‘not 
attempt to force white teachers, against their will’ ”  to teach 
“  ‘in schools now in negro areas that are now staffed by 
negroes’ ”  (Dayton Pet. App. 195a-196a n .l l ) .



57

dual system. Of course, the disparate impact of a 
policy of operating neighborhood schools does not by 
itself deprive minority students of the equal protec­
tion of the laws. See Washington v. Davis, supra. 
As the Court observed in Swann v. Charlotte-Meck- 
lenburg Board of Education, supra, 402 U.S. at 28, 
“ [a] 11 things being equal, with no history of dis­
crimination, it [may] well be desirable to assign 
pupils to schools nearest their homes.” 13 But Swann 
also recognized that in school systems that have been 
“ deliberately constructed and maintained to enforce 
racial segregation,” such as Columbus and Dayton, 
“ all things are not equal” and neighborhood school 
assignments may operate to maintain an artificially 
created racial separation. Ibid. The use of a neigh­
borhood school policy by a school board that created 
a dual system may be a further constitutional viola­
tion if the board intentionally uses the policy to re­
inforce segregation:14 And, for the reasons stated

13 Congress has likewise stated in Sections 202 an4j206 the 
Equal Educational Opportunities Act of 1974, 20 U.S.C. 
1701, 1705, that “ the neighborhood is the appropriate basis 
for determining public school assignments,”  though it has 
also provided that the assignment of students to neighborhood 
schools “ for the purpose of segregating students on the basis 
of race, color, sex, or national origin” constitutes a violation 
of “ equal protection of the laws.”

14 The Equal Educational Opportunities Act expressly de­
clares that no state shall deny equal education opportunities 
to any individual by either (1) “ the deliberate segregation by 
an educational agency of students on the basis of race, color, 
or national origin among or within schools,” or (2) “ the



58

above, segregative intent is manifested when the 
school board maintains a purposefully discriminatory 
pattern of faculty assignments in such schools.

But the present cases do not raise the question 
whether scrupulous adherence to an otherwise neutral 
neighborhood school policy, standing alone, may con­
stitute the deliberate maintenance of a dual system. 
For here, as in Keyes, the record demonstrates that 
“ the ‘neighborhood school’ concept has not been main­
tained free of manipulation.” Keyes v. School Dis­
trict No. 1 , supra, 413 U.S. at 212.

a. The court of appeals correctly concluded that 
the Columbus and Dayton Boards readily departed 
from strict neighborhood school assignments when 
increased racial separation would result. For ex­
ample, both Boards made extensive use of optional 
attendance zones in neighborhoods undergoing racial 
transition (see pages 8-9, 30, supra). As the district 
court recognized in the Dayton case, optional zones are 
inconsistent with the concept of neighborhood school 
assignments (Dayton Pet. App. 12a-13a). In cases 
where school boards, particularly those with a history 
of discrimination, have offered students the choice of 
attending schools of substantially differing racial com­
positions, the lower courts have properly inferred 
segregative intent absent some persuasive non-raeial 
explanation. See, e.g., United States v. School Dis­

failure of an educational agency which has formerly practiced 
such deliberate segregation to take affirmative steps, con­
sistent with part 4 of this subchapter, to remove the vestiges 
of a dual school system.”  Section 204(a) and (b), 20 
U.S.C. 1703(a) and (b).



59

trict of Omaha, 521 F.2d 530, 540-543 (8th Cir.), 
cert, denied, 423 U.S. 946 (1975), and cases cited 
therein. As this Court pointed out in Village of 
Arlington Heights v. Metropolitan Homing Carp., 
supra, 429 U.S. at 267 (footnote omitted), “ [s]ub- 
stantive departures” from usual policies may be rele­
vant in determining intent, “particularly if the fac­
tors usually considered important by the decision­
maker strongly favor a decision contrary to the 
one reached.” Neither the Columbus nor Dayton 
Boards came forward with adequate educational or 
administrative explanations for the continued use 
of optional zones in areas undergoing racial transi­
tion. Accordingly, the court of appeals correctly con­
cluded that the use of such zones was motivated by 
segregative intent (Dayton Pet. App. 209a-210a; Co­
lumbus Pet. App. 175, 179, 182-183).

The Columbus and Dayton Boards also deviated 
from neighborhood school assignments in other ways 
that can rationally be understood only as part of an 
overall policy to maintain racial segregation. In Day- 
ton, the Board maintained Dunbar High School as a 
district-wide school for black students until 1962 
(Dayton Pet. App. 199a-200a). When this school 
was closed, a new Dunbar High School was opened 
with a virtually all-black student body and faculty 
(Dayton Pet. App. 207a). In Columbus, the Board 
made boundary changes that removed white resi­
dential areas from predominantly black zones and op­
erated noncontiguous zones in which white students 
were bused past black schools (Columbus Pet. App.



6 0

179-183, 184-186). The court of appeals found that 
no adequate non-racial explanation was offered for 
any of these practices.

Thus, the records show that neither the Columbus 
nor the Dayton Boards pursued a bona fide neighbor­
hood school policy. As the court of appeals succinctly 
put it (Columbus Pet. App. 175), “ the Columbus 
Board’s ‘neighborhood school concept’ was not ap­
plied when application of the neighborhood concept 
would tend to promote integration rather than segre­
gation.” This observation applies equally to the Day- 
ton Board (see Dayton Pet. App. 209a-210a).

b. As the Columbus and Dayton school systems 
expanded in the 1950’s and 1960’s, both boards under­
took ambitious school construction programs. These 
programs resulted in extreme patterns of racial sep­
aration in both systems. In Columbus, 87 of the 103 
schools built since 1950 opened as racially identifiable 
(Columbus Pet. App. 173). In Dayton, 22 of the 24 
schools constructed since 1950 opened 90% or more 
black or white (Dayton Pet. App. 210a).

The court of appeals correctly recognized that a 
close examination of this pattern of school construc­
tion was “ ‘a factor of great weight’ ” in determin­
ing whether the school systems were deliberately seg­
regated (Columbus Pet. App. 168, quoting Swann v. 
Charlotte-Mecklenburg Board of Education, supra, 
402 U.S. at 21; see Dayton Pet. App. 210a-211a). 
School construction programs of this magnitude ordi­
narily will have a profound effect on segregation or 
integration within the system as a whole. As this



61

Court explained in Swann, the consequences of school 
construction programs are far-reaching (402 U.S. 
at 20-21):

The construction of new schools and the closing 
of old ones are two of the most important func­
tions of local school authorities and also two of 
the most complex. * * * The result of this will 
be a decision which, when combined with one 
technique or another of student assignment, will 
determine the racial composition of the student 
body in each school in the system. Over the long 
run, the consequences of the choices will be far 
reaching. People gravitate toward school facili­
ties, just as schools are located in response to the 
needs of people. The location of schools may thus 
influence the patterns of residential development 
of a metropolitan area and have important im­
pact on composition of inner-city neighborhoods.

In the past, choices in this respect have been 
used as a potent weapon for creating or main­
taining a state-segregated school system. In ad­
dition to the classic pattern of building schools 
specifically intended for Negro or white students, 
school authorities have sometimes, since Brown, 
closed schools which appeared likely to become 
racially mixed through changes in neighborhood 
residential patterns. This was sometimes ac­
companied by building new schools in the areas 
of white suburban expansion farthest from Negro 
population centers in order to maintain the sepa­
ration of the races with a minimum departure 
from the formal principles of “neighborhood zon­
ing.” Such a policy does more than simply influ­
ence the short-run composition of the student 
body of a new school. It may well promote segre­



62

gated residential patterns which, when combined 
with “ neighborhood zoning,” further lock the 
school system into the mold of separation of the 
races. Upon a proper showing a district court 
may consider this in fashioning a remedy.

In ascertaining the existence of legally imposed 
school segregation, the existence of a pattern of 
school construction and abandonment is thus a 
factor of great weight.

As we have shown, the post-1950 pattern of school 
construction in Columbus and Dayton was undisput- 
ably segregative in effect. Both Boards were, of 
course, fully knowledgeable of the racial residential 
and school attendance patterns within their systems, 
and were thus aware of the potential impact that 
their construction decisions would have on integra­
tion or segregation. They had the option of making 
these construction decisions with the goal of achiev­
ing meaningful integration, or for the purpose 
of perpetuating or aggravating existing racial 
separation.

Particularly in light of the Boards’ practices of 
deliberate segregation, the pattern of rejection of 
alternate sites that were compatible with a neighbor­
hood school policy and that would have had an in­
tegrative, rather than a segregative effect, raised an 
inference that racial separation was a factor moti­
vating the Boards’ construction decisions. Neither 
Board rebutted this inference. In Columbus, the dis­
trict court identified several instances where the 
Board had rejected integrative sites without offering 
any explanation for their choice (Columbus Pet. App.



63

21-24). The court of appeals held that the district 
court had properly relied in part on these instances 
in finding deliberate systemwide segregation (Co­
lumbus Pet. App. 173). In the Dayton case, although 
the district court did not credit it, respondents also 
offered evidence that the Board had rejected sites that 
would have had an integrative effect (see Dayton 
Pet. App. 174a-176a). The inference that these sites 
were rejected because of segregative intent was 
strengthened by evidence of the “ coordinate racial 
assignment of professional staffs to [newly con­
structed] schools and additions on the basis of the 
racial composition of the pupils served by the schools” 
(Dayton Pet. App. 210a). No racially neutral plan 
for school construction in Dayton was proved. To 
the contrary, the district court described the process 
of site selection in Dayton as “ a most imprecise sci­
ence”  that “ approached the level of haphazard in 
some instances” (Dayton Pet. App. 173a). In view 
of the strong history of segregation in the Dayton 
schools, the use of such a subjective decision-making 
process reinforced the inference that racial considera­
tions played a role in the Board’s construction de­
cisions. See Castaneda v. Partida, 430 U.S. 482, 497 
(1977).

c. The Boards do not seriously contend they pur­
sued policies intended to promote integration, but they 
deny that they had any intent to discriminate. They 
argue that racial considerations were irrelevant to 
their decisions and were subordinated to the achieve­
ment of valid educational objectives, and that the 
court of appeals erroneously equated their decision



64

to pursue a neutral neighborhood school policy— where 
the foreseeable effect was racial separation— with in­
tentional segregation.

In both the Dayton and Columbus cases the court 
of appeals treated the Boards’ adoption of policies 
that had the natural and foreseeable consequences of 
creating and maintaining racial separation as pro­
bative of the Boards’ segregative intent (see Dayton 
Pet. App. 203a-2Q4a; Columbus Pet. App. 173). And 
in Dayton, the court stated, quoting Oliver v. Michi­
gan State Board of Education, 508 F.2d 178, 182 (6th 
Cir. 1974), cert, denied, 421 U.S. 963 (1975), that 
(Dayton Pet. App. 203a):

A presumption of segregative purpose arises 
when plaintiffs establish that the natural, prob­
able, and foreseeable result of the public officials’ 
action or inaction was an increase or perpetua­
tion of public school segregation. The presump­
tion becomes proof unless defendants affirma­
tively establish that their action or inaction was 
a consistent and resolute application of racially 
neutral policies.

We agree with petitioners that awareness of dis­
parate effect is not the same as purposeful discrimi­
nation. But proof that a challenged official act has a 
disparate effect on a particular group may be im­
portant in ascertaining the intent of the decision­
maker.15 As the Court stated in Village of Arlington

15 In Ms concurring opinion in Washington v. Davis, supra, 
426 U.S. at 253, Mr. Justice Stevens explained the importance 
of disparate effect in proving intent as follows:

Frequently the most probative evidence of intent will 
be objective evidence of what actually happened rather



65

Heights v. Metropolitan Homing Corp., supra, 429 
U.S. at 266:

Determining whether invidious discriminatory 
purpose was a motivating factor demands a sen­
sitive inquiry into such circumstantial and direct 
evidence of intent as may be available. The im­
pact of the official action— whether it “ bears 
more heavily on one race than another,”  Wash­
ington v. Davis, supra, at 242— may provide an 
important starting point.

Where disparate effect is very difficult to explain 
except as the product of purposeful discrimination, 
the evidence of effect may for all practical purposes 
establish the violation. Gomillion v. Lightfoot, 364 
U.S. 339 (1960); Guinn v. United States, 238 U.S. 
347 (1915).“  And in some circumstances, evidence 
of a grossly disproportionate effect on a protected 
class justifies shifting the burden to the state to 
produce evidence that this effect was not the product 
of purposeful discrimination. See Castaneda v. Par- 
tida, 430 U.S. 482, 494 & n.13 (1977); Washington 16

than evidence describing the subjective state of mind of 
the actor. For normally the actor is presumed to have 
intended the natural consequences of his deeds. This is 
particiularly true in the case of governmental action 
which is frequently the product of compromise, of col­
lective decisionmaking, and of mixed motivation.

16 Nothing shows intent as well as a demonstration that 
a series of decisions all have a similar disparate effect. See 
Yick Wo V. Hopkins, 118 U.S. 356 (1886). Such a demonstra­
tion shows a cumulation of disadvantage inexplicable on 
grounds other than the forbidden but unstated characteristic.



66

v. Davis, supra, 426 U.S. at 241; Alexander v. 
Louisiana, 405 U.S. 625, 632 (1972).

Accordingly, several courts of appeals have held 
that, once plaintiffs demonstrate that particular offi­
cial action naturally and foreseeably resulted in seg­
regation in the schools, that evidence creates a re­
buttable presumption that the action was taken with 
a discriminatory purpose, shifting the burden to the 
school officials of coming forward with evidence prov­
ing that they had no segregative intent. See, e.g., 
United States v. Texas Education Agency, 579 F.2d 
910, 912-914 (5th Cir. 1978), petition for cert, 
pending, No. 78-897; United States v. School District 
of Omaha, 521 F.2d 530, 535-536 (8th Cir.), cert, 
denied, 423 U.S. 946 (1975). See generally Note, 
Reading the Mind of the School Board: Segregative 
Intent and the De Facto/De Jure Distinction, 86 
Yale L.J. 317 (1976).

But ultimately the court of appeals’ decisions in 
these cases did not rest on a presumption that the 
Boards intended to bring about the racial separation 
that was the natural and foreseeable consequence of 
its actions.17 Although the segregative impact of 
their policies “provide [d] an important starting

17 As the court commented in the Columbus case (Columbus 
Pet. App. 173), although an inference of segregative intent 
could be drawn from the evidence that the vast majority of 
the new schools opened and remained racially identifiable, 
“ the record actually requires no reliance upon inference”  be­
cause of the evidence that the Board deliberately selected 
segregative sites and refused to consider alternatives that 
would have had an integrative effect.



67

point”  in determining the Boards’ intent, ultimately 
“a clear pattern, unexplainable on grounds other than 
race,”  emerged from the court’s examination of all 
the “ circumstantial and direct evidence of intent.” 
See Village of Arlington Heights v. Metropolitan 
Housing Corp., supra, 429 U.S. at 266. The court’s 
findings of intent to segregate rested not on a pre­
sumption, but on a pattern of both direct and indirect 
evidence of overt racial intent illuminated by the 
historical context of the Boards’ actions.18

d. In sum, the court of appeals applied proper 
legal standards and correctly concluded that the

18 In granting a stay in the Columbus case, Mr. Justice 
Rehnquist stated his concern that the court of appeals had 
“ employed legal presumptions of intent to extrapolate system- 
wide violations from what was described * * * as ‘isolated’ 
instances.” Columbus Board of Education v. Penick, No. A- 
134 (Aug. 11, 1978) (Rehnquist, J., in chambers), slip op. 3. 
In the portion of the Columbus opinion to which Mr. Justice 
Rehnquist referred, the court of appeals commented (Co­
lumbus Pet. App. 175) that the post-Brown I instances of 
Board gerrymandering of attendance boundaries and estab­
lishing optional attendance areas “ can properly be classified 
as isolated in the sense that they do not form any systemwide 
pattern.” The court found, however, that these instances “ are 
significant in indicating that the Columbus Board’s ‘neighbor­
hood school concept’ was not applied when application of the 
neighborhood concept would tend to promote integration 
rather than segregation.” This comment in no way under­
mines the court’s finding of systemwide intentional segrega­
tion. These particular instances of segregative conduct—  
which were in one sense “ isolated”—were not the primary 
source of its finding of a violation. Instead they supple­
mented and gave color to the more systematic and far- 
reaching effects of the Board’s pre-1954 segregation, and the 
post-1954 practices of discriminatory school site selections 
and faculty assignments.



6 8

Columbus and Dayton Boards continued to pursue a 
systemwide policy of deliberate racial discrimination 
from the early 1900’s through the dates of trial. 
The Boards attempt now to characterize their acts of 
discrimination as discrete or isolated. The thrust of 
petitioners’ argument is that a finding of system- 
wide segregation cannot be made unless there is non­
circumstantial proof, on a school-by-school basis, of 
invidiously motivated Board action. No such insur­
mountable burden of proof has ever been placed on 
plaintiffs in a school desegregation lawsuit. Disputed 
questions of intent in cases such as these are not 
easy to resolve, see Dayton I, supra, 433 U.S. at 414; 
and a “ sensitive inquiry” must be made “ into such 
circumstantial and direct evidence of intent as may 
be available.”  Village of Arlington Heights v. Metro­
politan Housing Corp., supra, 429 U.S. at 266. But 
when this inquiry is made, the plaintiffs’ burden of 
proof is no different than in any other civil case; and 
the courts should apply normal evidentiary principles 
in answering the question whether it is more prob­
able than not that the school boards followed a 
general policy of racial discrimination in assigning 
students and faculty. Given the strength of the proof 
adduced in these cases, the court of appeals correctly 
found that petitioners followed a general policy of 
racial discrimination.



69

II

SYSTEMWIDE REMEDIES ARE APPROPRIATE IN 
THESE CASES BECAUSE THEY ARE TAILORED TO 
CURING THE CONDITION THAT OFFENDS THE CON­
STITUTION

Courts are not at liberty in school desegregation 
cases to command results merely to achieve socially 
desirable ends. As this Court explained in Dayton I, 
supra, 433 U.S. at 419-420:

The power of the federal courts to restructure 
the operation of local and state governmental 
entities “ is not plenary. It ‘may be exercised 
“ only on the basis of a constitutional violation.” ’ 
[Citations omitted.] Once a constitutional vio­
lation is found, a federal court is required to 
tailor ‘the scope of the remedy’ to fit ‘the nature 
and extent of the constitutional violation.’ ”  
[Citations omitted.]

* * * If [constitutional] violations are found, 
the District Court in the first instance, subject 
to review by the Court of Appeals, must deter­
mine how much incremental segregative effect 
these violations had on the racial distribution 
of the Dayton school population as presently con­
stituted, 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. Keyes, 413 U.S., at 213.

The task of a remedial decree “ is to correct, by a 
balancing of the individual and collective interests,



70

the condition that offends the Constitution.” Swann 
v. Charlotte-Mecklenburg Board of Education, supra, 
402 U.S. at 16. See also, e.g., Milliken v. Bradley, 
433 U.S. 267 (1977); Hills v. Gautreaux, 425 U.S. 
284 (1976).19

Applying these principles, the court of appeals cor­
rectly concluded that because of the systemwide im­
pact of the Boards’ discriminatory policies, system- 
wide relief was warranted.

A. The Columbus And Dayton Boards Are Under An 
Affirmative Constitutional Duty To Convert The Dual 
Systems They Created And Maintained Into Unitary 
Systems Without “White”  Schools And “ Black” Schools

Dayton I  reaffirms the holding in Keyes that where 
school officials’ segregative policies have a “ system- 
wide impact”  the court should order “ systemwide 
relief.”  433 U.S. at 420. In these cases, the condition 
found to offend the Constitution is the creation and 
maintenance of a dual system of education, with 
each Board operating one set of schools primarily 
for white students and another set of schools pri­
marily for black students. Under this Court’s re­
peated holdings, the only remedy that will cure this 
condition is prompt conversion to a unitary system 
in which there are no longer white schools or black

19 Congress has expressed a similar judgment. Section 213 
of the Equal Educational Opportunities Act of 1974, 20 U.S.C. 
1712, provides that “  [i]n  formulating a remedy for a denial 
of equal educational opportunity or a denial of the equal pro­
tection o f the laws, a court * * * shall seek or impose only 
such remedies as are essential to correct particular denials of 
equal educational opportunity or equal protection of the laws.”



71

schools but “ just schools.” Green v. County School 
Board, supra, 391 U.S. at 442. See also, e.g., Keyes 
v. School District No. 1, supra, 413 U.S. at 200 & 
n .l l ;  Sivann v. Charlotte-Mecklenburg Board of Edu­
cation, supra, 402 U.S. at 15. In order to eliminate 
all vestiges of the dual system “ ‘root and branch,’ ” 
“ all-out desegregation” must be undertaken. Keyes 
v. School District No. 1, supra, 413 U.S. at 213-214. 
The remedial decree must therefore seek “ to achieve 
the greatest possible degree of actual desegregation, 
taking into account the practicalities of the situa­
tion.” Davis v. Board of School Commissioners, 402 
U.S. 33, 37 (1971).

The remedies challenged in these cases are faith­
ful to these principles. They effect conversions to 
unitary systems by removing the racial identifiability 
of schools which have heretofore been identified and 
operated as schools intended for whites or blacks. 
They do not require fixed mathematical norms,20 but 
instead allow reasonable ranges for flexibility. There 
is no claim that either decree is impractical. Finally,

20 The Columbus Board argues (Br. 79-81) that the district 
court ordered strict mathematical ratios. However, the district 
court’s remedial order did nothing more than suggest that a 
staff plan that brought every school within 15% of the 
district-wide norm could be used as a starting point (Co­
lumbus Pet. App. 11). This range is reasonably broad. It per­
mitted ample flexibility and thus was an appropriate “ starting 
point in the process of shaping a remedy, rather than an in­
flexible requirement.” Swann, supra, 402 U.S. at 25. The court 
made clear that exceptions to this already flexible range 
would be allowed on grounds of practicality (Columbus Pet. 
App. 105-106).



72

it is undisputed that neither decree will require ex­
cessive travel times for students.21

B. The Boards Did Not Meet Their Burden Of Proving
That Less Extensive Relief Would Fully Eradicate
The Effects Of Their Systemwide Discrimination

Petitioners contend that despite the findings that 
they had systemwide segregative policies, and that 
extreme conditions of racial separation are now 
found in both school systems, no relief should have 
been ordered. They urge that the racial separation in 
the schools simply corresponds to the racial patterns 
in the residential areas served by the schools. Under 
Dayton I, they urge, respondents had the burden of 
proving not only the systemwide nature of peti­
tioners’ intentionally discriminatory policies, but also 
the precise degree to which these segregative policies 
caused the current conditions of racial separation, 
wholly apart from other factors such as residential 
patterns. In petitioners’ view, respondents failed to 
carry this burden.

1. When systemwide discrimination has been shown, 
the burden shifts to the defendants to establish 
that the remedy need not be systemwide

In holding that judicial remedies must be addressed 
to the incremental segregative effects of a school 
board’s discriminatory policies, Dayton I  did not

21 Petitioners do not contend that the remedies ordered 
here are inconsistent with the remedial priorities stated in 
Section 214 of the Equal Educational Opportunities Act of 
1974, 20 U.S.C. 1713.



73

establish new principles. Rather, it reiterated the 
settled precept that a remedy must be tailored to 
cure the condition that offends the Constitution by 
eradicating the effects of the violation. When there 
have been only isolated and sporadic acts of school 
board discrimination affecting a limited number of 
schools or students, a similarly limited remedy is 
appropriate. On the other hand, when there has been 
a general policy of discrimination in the operation 
of the school system as a whole, pervasively elimi­
nating whatever opportunities existed for substantial 
racial integration (see Keyes, supra, 413 U.S. at 
201-203), a systemwide remedy will generally be 
required. As Dayton I reaffirms “ [tjhere is no doubt 
that federal courts have authority to grant appropri­
ate relief of this sort when constitutional violations 
on the part of school officials are proved,” 433 U.S. 
at 410, but “ only if there has been a systemwide 
impact may there be a systemwide remedy.” Id. at 
420. The Court therefore reversed the systemwide 
remedy ordered in Dayton I because it plainly went 
far beyond the scope of the isolated violations relied 
on by the court of appeals. 433 U.S. at 417; see also 
id. at 422 (Brennan, J., concurring).

Dayton 1 does not directly address the central 
issue here, which is the proper allocation of the 
burden of proof at the remedial stage when a court 
must enter a decree which eliminates all vestiges of 
systemwide violations “ root and branch.” But Dayton 
I does cite and follow Swann and Keyes, which



74

establish the governing principles. 433 U.S. at 410, 
420.22

Keyes and Swann establish that once a systemwide 
violation has been shown, a systemwide remedy will 
be imposed unless school officials can establish that 
some portion of the racial separation in the system 
is not attributable to their discriminatory conduct. 
The Court addressed precisely this point in Swann, 
stating (402 U.S. at 26 ):

Where the school authority’s proposed plan for
conversion from a dual to a unitary system con-

22 Petitioners rely (Columbus Br. 58-59) heavily on the 
per curiam decisions in School District of Omaha V. United 
States, 438 U.S. 687 (1977), and Brennan V. Armstrong, 433 
U.S. 672 (1977). Despite petitioners’ arguments to the con­
trary, neither case is inconsistent with our reading of Dayton 
1. In both cases, uncertainty as to the scope of the constitu­
tional violations precluded affirmance of findings that there 
had been systemwide discrimination. In Omaha, the court of 
appeals was directed to reconsider the evidentiary presump­
tions that it had employed to determine intent in light of the 
intervening decision in Arlington Heights. Upon reexamina­
tion of the violations, the court of appeals was also directed 
to reconsider whether a systemwide remedy was warranted. 
433 U.S. at 668-669. In Brennan, no remedy had yet been 
ordered. But the district court’s finding of a systemwide vio­
lation appeared inconsistent with a specific finding that the 
Milwaukee Board’s boundary and construction decisions (a 
key element in the alleged violations) were entirely racially 
neutral. See Armstrong V. Brennan, 539 F.2d 625, 635-636 
(7th Cir. 1976). Notwithstanding this patent inconsistency, 
the court of appeals upheld the conclusory finding of segre­
gative intent by affording the district court a “ presumption of 
consistency.” 539 F,2d at 635-636; see 433 U.S. at 672. The 
case was therefore remanded to redetermine the scope of the 
actual violations so that a proper remedy could be developed 
commensurate with those violations. 433 U.S. at 672-673.



75

templates the continued existence of some 
schools that are all or predominately of one race, 
they have the burden of showing that such school 
assignments are genuinely nondiscriminatory. 
The court should scrutinize such schools, and 
the burden upon the school authorities will be to 
satisfy the court that their racial composition 
is not the result of present or past discrimina­
tory action on their part.

See Keyes v. School District No. 1, supra, 413 U.S. 
at 211 n.17.

Once systemwide racially discriminatory practices 
have been proved, it is proper for the court rebut­
tably to presume that those practices achieved their 
full potential as a contributing factor to the current 
racial imbalance in student attendance patterns. The 
burden should then shift to the school officials to show 
the extent to which racial separation would have 
existed in the absence of the discrimination. For it is 
ordinarily the school board that is most likely to have 
access to the information necessary to demonstrate 
the effects of its racial discrimination, and to be in 
the best position to establish what conditions would 
have been but for official discrimination on the basis 
of race. And it is, after all, the very illegality of the 
school officials’ behavior and their refusal to dis­
charge their constitutional duty promptly to eradi­
cate the effects of their violations that created the 
uncertainty in measuring the damage caused by those 
violations. As a practical matter, if plaintiffs are 
required to demonstrate not only the existence of a



76

general policy of discrimination but also the specific 
current effects of that policy, in many cases they will 
face an insuperable burden since the defendants will 
often be able to suggest other factors that might have 
encouraged racial separation in the schools. The per­
petrators of racial discrimination should not be per­
mitted to stand silent while their victims are required 
to shoulder so heavy a burden.

Indeed, it is the established rule that the perpe­
trator of a constitutional wrong must bear the burden 
of proving that his violation was without, or was of 
only limited, effect. See, e.g., Village of Arlington 
Heights v. Metropolitan Housing Carp., supra, 429 
U.S. at 270-271 n.21 (proof of racially discriminatory 
purpose would “have shifted to the Village the burden 
of establishing that the same decision would have 
resulted even had the impermissible purpose not been 
considered” ) ; Mt. Healthy City Board of Education v. 
Doyle, 429 U.S. 274, 287 (1977). The same rule is 
applied where the cause of action is statutory. See, 
e.g., Franks v. Bowman Transportation Co., 424 U.S. 
747, 771-773 (1976); Zenith Radio Corp. v. Hazeltine 
Research, Inc., 395 U.S. 100, 123-125 (1969); NLRB 
v. Gissel Packing Co., 395 U.S. 575 (1969). And see 
generally W. Prosser, Law of Torts § 52 (4th ed. 
1971).

For example, when a broad-based pattern of racial 
discrimination in employment is shown, all minority 
class applicants are presumptively entitled to awards 
of full retroactive seniority. Franks v. Bowman 
Transportation Co., supra, 424 U.S. at 772-773;



77

Teamsters v. United States, 431 U.S. 324, 358- 
362 (1977). Proving whether each applicant would 
have qualified under neutral and valid stand­
ards, whether there were other more qualified ap­
plicants, and what the applicant’s performance on the 
job would have been if he were hired is necessarily 
a difficult and uncertain task. This Court has held 
that the burden of proof on such matters is properly 
placed on the wrongdoer, not the victims, even though 
the remedy sought will directly affect the interests 
and expectations of incumbent employees. Franks v. 
Bowman Transportation Co., supra, 424 U.S. at 772- 
773 & n.32, 777-778.23

Similarly, it will often be impossible to calculate 
the precise effects of a pervasive pattern of discrimi­
nation by school officials. Certainly those effects are 
not limited to immediately perceptible changes in the 
racial composition of the specific schools that were 
the subject of the plaintiffs’ proofs. Once a pattern 
and practice of discrimination by the school board

23 The district court in Dayton therefore erred in conclud­
ing that the plaintiffs in a school desegregation case must 
carry the burden of proving the effects of official discrimina­
tion because the interests of “ innocent” children and parents 
would be affected (see Dayton Pet. App. 146a-147a). Indeed, 
the interests of the parents and children in these cases are 
affected far less dramatically than the interests of the in­
cumbent employees in Franks, since the relief respondents 
seek will not deprive any child of an opportunity to attend 
school, although many children may not attend the school in 
their own neighborhoods. Moreover, while the expectations 
of the employees in Franks were contractually secured, a 
school board has no obligation to continue a neighborhood 
school policy.



7 8

has been established, the inference arises that other 
acts may have been motivated by racial considera­
tions. Cf. Teamsters v. United States, supra, 431 
U.S. at 359 & n.45, 362. School officials might have 
adopted different operating policies— perhaps not even 
favoring the neighborhood school concept— but for 
their consideration of the factor of race. And al­
though petitioners contend that the racial separation 
in the Dayton and Columbus schools is the result of 
residential patterns, not school segregation, racial 
residential patterns do not develop wholly indepen­
dently of the operation of a dual school system. The 
earmarking of schools by race “may have a profound 
reciprocal effect on the racial composition of resi­
dential neighborhoods within a metropolitan area, 
thereby causing further racial concentration within 
the schools.” Keyes v. School District No. 1, supra, 
413 U.S. at 202. Where it is not possible to sepa­
rate the effects of the operation of a segregated 
school system from the other factors that may also 
have increased racial separation in the schools, “ [c o n ­
siderations of ‘fairness’ and ‘policy’ ” dictate that 
this uncertainty should not preclude an effective 
remedy. See Keyes v. School District No. 1, supra, 
413 U.S. at 214.24

24 The Third Circuit recently reached precisely this conclu­
sion in a unanimous en banc decision. In Evans v. Buchanan, 
582 F.2d 750, 765 (3d Cir. 1978), petitions for cert, pending, 
Nos. 78-671, 78-672, the court upheld an order remedying 
pervasive inter-district violations, despite the defendants’



79

The principle that the risk of uncertainty should 
not be borne by the victims of illegal action is par­
ticularly applicable in cases, such as these, where 
the plaintiffs seek to vindicate rights that are at the 
core of the Fourteenth Amendment. The victims of 
purposeful school segregation are entitled to a remedy 
that eliminates the effects of discrimination “ root 
and branch.” A decree acting upon the school sys­
tem as a whole will plainly achieve that end. A sys­
temwide remedy will not only remove the racial iden- 
tifiability of the dual system but it will also visibly 
rectify the stigma of inferiority which is a product 
of the pervasive violations. If a school board wishes

contention that it was not possible to identify the precise in­
cremental effects of their segregative conduct:

We hold that, in a case such as this, where there is an 
historical pattern of signficant de jure segregation with 
pervasive inter-district effects, where a facially reason­
able plan is proposed to remedy those effects, where the 
defendant itself admits that it is not feasible to separate 
out the incremental segregative effects of the consti­
tutional violations from the segregative effects of demo­
graphic changes, where the defendant itself is in the 
best position to ascertain, what the pattern of segrega­
tion would have been “ but fo ff’ the constitutional viola­
tions, and where the defendant has dragged its heels and 
obstructed progress toward desegregation for twenty-six 
years, then the burden of proof shifts to the defendant. 
Thus the defendant, if it opposes the remedy put for­
ward by the plaintiff or the district court, must show the 
incremental segregative effects of the constitutional vio- 
ations, and must show how the proposed remedy goes 
beyond that incremental impact. To hold otherwise would 
be tantamount to holding that the plaintiffs are without 
remedy.



80

to contend that a less inclusive decree would purge 
all taints of its proven systemwide racial discrimina­
tion, it has the burden to propose and justify such 
a decree.

2. Since the Dayton and Columbus Boards did not 
establish that a less extensive remedy would cure 
the effects of their segregative policies, systemwide 
remedies were appropriate

The court of appeals, following the principles an­
nounced in Keyes and Swann, properly placed the 
burden on petitioners to show that despite the sys­
temwide nature of their segregative conduct, a sys­
temwide remedy was not required. The appellate 
court also recognized that the remedy should be de­
signed to cure what this Court in Dayton I  called the 
“ incremental segregative effect”  of discrimination in 
the schools. As the court of appeals explained (Day- 
ton Pet. App. 214a), “ [t]he purpose of the remedy 
is to eliminate the lingering effects of intentional con­
stitutional violations and to restore plaintiffs to sub­
stantially the position they would have occupied in 
the absence of these violations.” 25 The record in each

25 Petitioners seize on other portions of the court’s discus­
sion that, they urge, misconstrue the phrase “ incremental 
segregative effect” (Dayton Br. 40-41; Columbus Br. 59-60). 
In the Dayton case, the court stated (Dayton Pet. App. 214a- 
215a) :

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 incre­
mentally to the ultimate condition of segregated schools. 
The impact is “ incremental” in that it occurs gradually



81

case supports the court of appeals’ conclusion that 
petitioners failed to show that a remedy that was not 
systemwide would be effective to eliminate the incre­
mental effects of their segregative policies.

In the Dayton case, the court of appeals, citing 
Keyes, held (Dayton Pet. App. 216a) that “ [wjhere 
plaintiffs prove, as here, a systemwide pattern of 
intentionally segregative actions by the defendants, 
it is the defendants’ burden to overcome the pre­
sumption that the current racial composition of the 
school population reflects the systemwide impact of 
those violations.” “ Nowhere in the record,”  the court 
found (ibid.), had defendants “ rebutted this pre­
sumption.”  The court found (Dayton Pet. App. 216a- 
217a) that “ [t]he impact of defendants’ practices

over the years instead of all at once as in a case where 
segregation was mandated by state statute or a pro­
vision of a state constitution.

Similarly, in the Columbus case the court stated (Columbus 
Pet. App. 197) :

It is clear to us that the phrases “ incremental segre­
gative effect” and “ systemwide impact”  employed in the 
Dayton case require that the question of systemwide im­
pact be determined by judging segregative intent and 
impact as to each isolated practice, or episode. Each 
such practice or episode inevitably adds its own “ in­
crement”  to the totality of the impact of segregation.

Although these statements, standing alone, do not clearly 
define the concept of “ incremental segregative effect,” the 
court of appeals evinced a clear understanding that a re­
medial order should cure only the “ incremental segregative 
effects,” that is, it should (Dayton Pet. App. 214a) “ restore 
plaintiffs to substantially the position they would have 
occupied in the absence of these violations.”



82

with respect to the assignment of faculty and stu­
dents, use of optional attendance zones, school con­
struction and site selection, and grade structure and 
reorganization clearly was systemwide in that the ac­
tions perpetuated and increased public school segre­
gation in Dayton.”

In the Columbus case the court of appeals affirmed 
the district court’s findings and its remedial order. 
The district court found (Columbus Pet. App. 
61) that “ [defendants have not proved that the 
present admitted racial imbalance in the Columbus 
Public Schools would have occurred even in the ab­
sence of their segregative acts and omissions * * *.” 26 
After this Court’s decision in Dayton 1, the district 
court reviewed and reaffirmed this finding, conclud­
ing (Columbus Pet. App. 95; citation omitted):

Defendants had ample opportunity at trial to 
show, if they could, that the admitted racial im­
balance of the Columbus Public Schools is the re­
sult of social dynamics or of the acts of others 
for which defendants owe no responsibility. This 
they did not do.

Accordingly, the district court held (Columbus Pet. 
App. 75) that if the Columbus Board proposed a plan

26 The court rejected petitioners’ claim that segregation 
in housing alone accounted for the segregated condition of 
the schools. It found (Columbus Pet. App. 58) that “ the 
actions of the school authorities have had a significant im­
pact upon the housing patterns. The interaction of housing 
and the schools operates to promote segregation in each. It 
is not now possible to isolate these factors and draw a pic­
ture of what Columbus schools or housing would have looked 
like today without the other’s influence.”



83

that would not affect some of the predominantly or 
exclusively white schools in the district, the Board 
would have to establish that the racial composition 
of those schools “ is not the result of present or past 
discriminatory actions or omissions of defendant pub­
lic officials or their predecessors in office.”  The court 
recognized (ibid.) the difficulty of the Board’s task 
of “ attempting] to roll back the clock at this point 
and determine what the school system would look 
like now had the wrongful acts and omissions dis­
cussed earlier in this opinion never occurred.”  The 
court subsequently rejected the limited remedial plans 
proposed by petitioners on the ground that petitioners 
had failed to carry their burden of proving that the 
racial imbalance in the schools excluded from those 
plans was not the result of their discriminatory con­
duct (Columbus Pet. App. 102-103, 105). The court 
of appeals upheld the district court’s findings and 
affirmed its systemwide remedial order (Columbus 
Pet. App. 196-200, 207).

The record in each case supports the lower courts’ 
findings. As the district court observed in the Co­
lumbus case (Columbus Pet. App. 102), petitioners, 
because of their interpretation of Dayton I, submitted 
an amended plan that affected only the schools spe­
cifically referred to in the district court’s liability 
opinion, and did not make any attempt to “ shoulder 
the burden of showing that the amended plan’s re­
maining one-race schools are not the result of present



84

or past discriminatory action on their part * * *.” 27 
The Dayton Board likewise adopted an all or nothing 
approach on the question of remedy, premised on its 
contention that no systemwide violation had been 
established.28

Despite the fact that in both cases petitioners’ pri­
mary argument is that the racial imbalance in the 
schools resulted from residential patterns, not the 
segregative policies of the schools, neither Board pre­
sented evidence that its practices of racial discrimina­
tion did not affect residential patterns.

In contrast, in both cases plaintiffs— although it 
was not their burden to do so— presented undisputed 
expert testimony describing the various ways in 
which a policy of discrimination in schools affects 
residential decisionmaking (see Dayton R. I 1425, 
1447-1450, 1472-1473, 1599-1601, 1605-1606, 1684- 
1686; Columbus A. 294-296, 341-343, 353-355). This

27 The Columbus Board now relies on a law review article 
(Columbus Br. 77 n.41) to refute the undisputed expert testi­
mony that schools influence residential decisionmaking. This 
post-trial effort to show what petitioners failed to prove at 
the trial level should be rejected. Again relying on secondary 
sources, the Columbus Board argues that economics accounts 
for up to 50% of residential segregation. However, the undis­
puted expert testimony is that economics can account for only 
a small portion of residential segregation (Columbus A. 293- 
294). See also Farley, Residential Segregation And Its Impli­
cations For School Integration, 39 Law & Contemp. Prob. 164, 
174-177 (1975) ; K. Taeuber, Patterns of Negro-White Resi­
dential Segregation (Rand Corp. Jan. 1970).

28 Respondents’ brief in the Dayton case describes the argu­
ments on this point to the court of appeals (Br. 133-135).



85

evidence showed, for example, that schools that are 
operated as disproportionately black in racial com­
position are commonly perceived as inferior schools. 
Because the quality of schools is an important factor 
in home-buying decisions, school board action that 
causes a school to become identified as a black school 
may well influence residential movement. Also, the 
very fact that a school board practices racial dis­
crimination exerts a powerful moral influence on the 
community, affecting community attitudes and con­
duct.

In sum, the record supports the court of appeals’ 
conclusion that no showing was made that part or 
all of the racial separation and imbalance in the 
Dayton or Columbus systems was not attributable 
to petitioners’ discriminatory policies. Petitioners 
failed to prove their claim that the racial separation 
in their districts was caused, in whole or substantial 
part, by residential patterns existing independent of 
the segregative policies of school officials. Accord­
ingly, the court properly approved systemwide 
remedies.

3. The remedial principles of Keyes and Swann, upon 
which these decisions rest, should be reaffirmed

Petitioners seek to impose on the plaintiffs in 
school desegregation cases the burden of proving, 
with mathematical certainty,29 school by school

29 Dayton I does not suggest that the effects of a system- 
wide violation must be determined with mathematical cer­
tainty. Indeed, the same day that Dayton I was decided, this



8 6

throughout a district, the precise degree to which a 
school board’s widespread racially discriminatory con­
duct affected the racial composition of the student 
body. A similar approach was rejected in Keyes, 
where this Court explained (413 U.S. at 200, 208- 
209) :

We have never suggested that plaintiffs in school 
desegregation cases must bear the burden of 
proving the elements of de jure segregation as 
to each and every school or each and every stu­
dent within the school system.

*  *  *  *  *

[A ]t that point where an intentionally segrega­
tive policy is practiced in a meaningful or sig­
nificant segment of a school system, as in this 
case, the school authorities cannot be heard to 
argue that plaintiffs have proved only “ isolated 
and individual” unlawfully segregated actions. 
In that circumstance, it is both fair and reason­
able to require that the school authorities bear 
the burden of showing that their actions as to 
other segregated schools within the system were 
not also motivated by the segregative intent.

Much of petitioners’ argument constitutes an 
attack on the remedial principles of Keyes and 
Swann, which, they contend, are inconsistent with

Court approved a remedy for systemwide discrimination 
providing compensatory education for minority students, even 
though it was impossible to determine the level of educational 
achievement those students would have attained absent the 
school board’s discrimination. Milliken V. Bradley, 433 U.S. 
267 (1977). See also Hutto v. Finney, 437 U.S. 678 (1978).



87

Dayton I. As we have shown, the remedial principles 
announced in those cases are fully consistent with 
Dayton I. Moreover, those principles are, as this 
Court stated in Keyes (413 U.S. at 209), grounded 
on considerations of “  ‘fairness’ and ‘policy,’ ” and 
designed to provide a practical and effective means of 
eliminating longstanding and pervasive segregation 
of the public schools in violation of the Fourteenth 
Amendment. Petitioners have suggested no justifi­
cation for overruling these decisions, which have been 
“considered maturely and recently” (Runyon v. 
McCrary, 427 U.S. 160, 186 (1976) (Powell, J., con­
curring) ), and are both sound and consistent with 
generally applicable remedial principles.

There is an additional compelling reason for ad­
hering to those principles. Based upon a review of the 
reported decisions and Department of Justice files, 
we have determined that approximately 200 school 
districts with a combined enrollment of more than 
5 million students are presently operating under 
court ordered desegregation plans that are premised 
in whole or in part on the remedial principles of 
Swann and Keyes. In addition, the Department of 
Health, Education, and Welfare has advised us that 
it has obtained desegregation plans from more than 
200 additional school districts based on the Swann 
and Keyes decisions. Overruling or limiting Sivann 
and Keyes would call into question the validity of 
every one of these plans. The potential for disrupting 
settled expectations is enormous.



8 8

Since the court of appeals correctly, applied the 
principles announced in this Court’s prior decisions, 
its judgments should be affirmed.

CONCLUSION

The judgments of the court of appeals should be 
affirmed.

Respectfully submitted.

Lawrence G. W allace 
Acting Solicitor General *

Drew S. Days, III
Assistant Attorney General

Sara Sun Beale
Assistant to the Solicitor General

Brian K. Landsberg 
Robert J. Reinstein 
Irving Gornstein 

Attorneys
April 1979

* The Solicitor General is disqualified in these cases.
☆  u .  S . GOVERNMENT PRINTING OFFICE; 1 9 7 9 2 9 0 7 8 5  3 7 3