Eilers v. Carpenter Brief for Petitioners-Appellants

    (Slip Opinion)

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

SUPEEME COUKT OE THE UNITED STATES
Syllabus

DAYTON BOARD OF EDUCATION e t  a l . v . 
BRINKMAN e t  a l .

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

No. 78-627. Argued April 24, 1979— Decided July 2, 1979

A number of students in the Dayton, Ohio, school system, through their 
parents, brought this action in District Court in 1972, alleging that the 
Dayton Board of Education, the State Board of Education, and various 
local and state officials were operating a racially segregated school system 
in violation of the Equal Protection Clause of the Fourteenth Amend­
ment. After protracted litigation at both the trial and appellate levels, 
the District Court dismissed the complaint, ruling that, although the 
Dayton Schools concededly were highly segregated, the Dayton Board’s 
failure to alleviate this condition was not actionable absent sufficient 
evidence that the racial separation had been caused by the Board’s own 
purposeful discriminatory conduct. In the District Court’s view, plain­
tiffs had failed to show either discriminatory purpose or segregative 
effect, or both, with respect to the Board’s challenged practices and 
policies, which included faculty hiring and assignments, the use of 
optional attendance zones and transfer policies, the location and con­
struction of new and expanded school facilities, and the rescission of 
certain prior resolutions recognizing the Board’s responsibility to eradi­
cate racial separation in the public schools. The Court of Appeals 
reversed, holding that at the time of Brown v. Board of Education, 347 
U. S. 483 (Brown / )  in 1954, the Dayton Board had operated a racially 
segregated, dual school system, that it was constitutionally required to 
disestablish that system and its effects, that it had failed to discharge 
this duty, and that the consequences of the dual system together with 
the intentionally segregative impact of various practices since 1954, were 
of systemwide import and an appropriate basis for a systemwide remedy.

Held:
1. On the record there is no basis for disturbing the Court of Appeals’ 

holding that at the time of Brown I the Dayton Board was intentionally
i



II DAYTON BOARD OF EDUCATION v. BRINKMAN

Syllabus

operating a dual school system in violation of the Equal Protection 
Clause. Pp. 7-9.

2. Given the fact that a dual system existed in 1954, the Court of 
Appeals also properly held that the Dayton Board was thereafter under 
a continuing duty to eradicate the effects of that system, and that the 
systemwide nature of the violation furnished prima facie proof that 
current segregation in the Dayton Schools was caused at least in part 
by prior intentionally segregative official acts. Part of the affirmative 
duty imposed on a school board is the obligation not to take any action 
that would impede the process of disestablishing the dual system and 
its effects, Wright v. Council of City of Emporia, 407 U. S. 451, and here 
the Dayton Board had engaged in many post-Brown I  actions that had 
the effect of increasing or perpetuating segregation. The measure of a 
school board’s post-Brown 1 conduct under an unsatisfied duty to 
liquidate a dual system is the effectiveness, not the purpose, of the 
actions in decreasing or increasing the segregation caused by the dual 
system. The Dayton Board had to do more than abandon its prior 
discriminatory purpose, Keyes v. School Dist. No. 1, 413 U. S. 189; 
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1. The Board 
has had an affirmative responsibility to see that pupil assignment 
policies and school construction and abandonment practices were not 
used and did not serve to perpetuate or re-establish the dual system, 
and has a “ heavy burden” of showing that actions that increased or con­
tinued the effects of the dual system serve important and legitimate 
ends. Pp. 9-12.

3. Nor is there any reason to fault the Court of Appeals’ finding, 
after the remand of this case in Dayton Board of Education v. Brink- 
man, 433 U. S. 406, that a sufficient case of current, systemwide effect 
had been established. This was not a misuse of Keyes, supra, where 
it was held that “ purposeful discrimination in a substantial part of a 
school system furnishes a sufficient basis for an inferential finding of a 
systemwide discriminatory intent unless otherwise rebutted”  and that 
“ given the purpose to operate a dual school system one could infer a 
connection between such a purpose and racial separation in other parts 
of the school system.” Columbus Board of Education v. Penick, ante, 
at — . The Court of Appeals was also justified in utilizing the Dayton 
Board’s failure to fulfill its affirmative duty and its conduct perpetuating 
or increasing segregation to trace the current, systemwide segregation 
back to the purposefully dual system of the 195Q’s and the subsequent 
acts of intentional discrimination. Pp. 12-14.

583 F. 2d 243, affirmed.



DAYTON BOARD OF EDUCATION v. BRINKMAN in

Syllabus

W hite, J., delivered the opinion of the Court, in which Brennan, 
M arshall, Blackmun, and Stevens, JJ., joined. Stewart, J., filed a 
dissenting opinion, in which Burger, C. J., joined. Powell, J., filed a 
dissenting opinion. Rehnquist, J., filed a dissenting opinion, in which 
Powell, J., joined.



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

SUPEEME COUET OF THE UNITED STATES

No. 78-627

Dayton Board of Education 
et al., Petitioners, 

v.
Mark Brinkman et al.

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

[July 2, 1979]

Mr. Justice W hite delivered the opinion of the Court.
This litigation has a protracted history in the courts below 

and has already resulted in one judgment and opinion by this 
Court, 433 U. S. 406 (1977). In its most recent opinion, the 
United States Court of Appeals for the Sixth Circuit approved 
a systemwide plan for desegregating the public schools of 
Dayton, Ohio. Brinkman v. Gilligan, 583 F. 2d 243 (CA6 
1978). The Court of Appeals found that the Dayton Board 
of Education had operated a racially segregated, dual school 
system at the time of Brown v. Board of Education ( / ) ,  347 
U. S. 483 (1954), and that “ [t]he evidence of record demon­
strates convincingly that defendants have failed to eliminate 
the continuing systemwide effects of their prior discrimina­
tion” and “actually have exacerbated the racial separation 
existing at the time of Brown I.”  583 F. 2d, at 253. We
granted certiorari,---- U. S .------ (1979), and heard argument
in this case in tandem with Columbus Board of Education v.
Penick, ante, p. ---- . We now affirm the judgment of the
Court of Appeals.

I
The public schools of Dayton are highly segregated by race. 

In the year the complaint was filed, 43% of the students in 
the Dayton system were black, but 51 of the 69 schools in the



2 DAYTON BOARD OF EDUCATION v. BRINKMAN

system were virtually all-white or all-black,1 Brinkman v. 
Gilligan, 446 F. Supp. 1232, 1237 (SD Ohio 1977). A number 
of students in the Dayton system, through their parents, 
brought this action on April 17, 1972, alleging that the Dayton 
Board of Education, the State Board of Education, and the 
appropriate local and state officials2 were operating a racially 
segregated school system in violation of the Equal Protection 
Clause of the Fourteenth Amendment. The plaintiffs sought 
a court order compelling desegregation. The District Court

1 The Court of Appeals set out the undisputed statistics:
“ ‘Enrollment data from the Dayton system reveals the substantial lack 
of progress that has been made over the past 23 years in integrating the 
Dayton school system. In 1951-52, of 47 schools, 38 had student enroll­
ments 90 per cent or more one race (4 blacks, 34 whites). Of the 35,000 
pupils in the district, 19 per cent were black. Yet over half of all black 
pupils were enrolled in the four all black schools; and 77.6 per cent of all 
pupils were assigned to virtual one race schools. “Virtual one race schools” 
refers to schools with student enrollments 90 per cent or more one race. 
In 1963-64, of 64 schools, 57 had student enrollments 90 per cent or more 
one race (13 black, 44 white). Of the 57,400 pupils in the district, 27.8 
per cent were black. Yet 79.2 per cent of all black pupils were enrolled 
in the 13 black schools; and 88.8 per cent of all pupils were enrolled in 
such one race schools.

“  ‘In 1971-72 (the year the complaint was filed), of 69 schools, 49 had 
student enrollments 90 per cent or more one race (21 black, 28 white). 
Of the 54,000 pupils, 42.7 per cent were black; and 75.9 per cent of all 
black students were assigned to the 21 black schools. In 1972-73 (the year 
the hearing was held) of 68 schools, 47 were virtually one race (22 black, 
25 white); fully 80 per cent of all classrooms were virtually one race. 
(Of the 50,000 pupils in the district, 44.6 per cent were black).

“  ‘Every school which was 90 per cent or more black in 1951-52 or 
1963-64 or 1971—72 and which is still in use today remains 90 per cent or 
more black. Of the 25 white schools in 1972-73, all opened 90 per cent 
or more white and, if open, were 90 per cent or more white in 1971-72, 
1963-64 and 1951-52.’ ”  Brinkman v. Gilligan, 583 F. 2d 243, 254 (1978), 
quoting Brinkman v. Gilligan, 503 F. 2d 684, 694—695 (CA6 1974).

2 In the last stages of this litigation, respondents did not press their 
claims against the state officials. Only the Dayton Board and local officials 
petitioned for writ of certiorari.



DAYTON BOARD OF EDUCATION v. BRINKMAN 3

sustained their challenge, determining that certain actions by- 
the Dayton Board amounted to a “cumulative” violation of 
the Fourteenth Amendment. Pet. App. 12a-.3 The District 
Court also approved a plan having limited remedial objectives.

The District Court’s judgment that the Board had violated 
the Fourteenth Amendment was affirmed by the Court of 
Appeals; but after twice being reversed on the ground that the 
prescribed remedy was inadequate to eliminate all vestiges of 
state-imposed segregation, the District Court ordered the 
Board to take the necessary steps to assure that each school 
in the system would roughly reflect the systemwide ratio of 
black and white students. Pet. App. 103a.4 The Court of 
Appeals then affirmed. Brinkman v. Gilligan, 539 F. 2d 1084 
(CA6 1976).

We reversed the judgment of the Court of Appeals and 
ordered the case remanded to the District Court for further 
proceedings. 433 U. S. 406 (1977). In light of the District

3 The violation found by the District Court had three major components: 
first, the marked racial separation of students, which the Board had made 
no significant effort to alter; second, the utilization of optional attendance 
zones, in some cases racially motivated and having significant segregative 
effect in two high school zones; and third, the Board’s rescission of pre­
viously adopted resolutions recognizing the Board’s role in racial segrega­
tion and its responsibility to eradicate the existing pattern.

4 To preserve continuity, the court exempted enrolled high school students 
for two academic years. And the court noted that it would evaluate on 
a case-by-case basis any deviations from the target percentage. The court, 
moreover, set down certain guidelines to be followed in achieving the 
redistribution: (1) students would be permitted to attend neighborhood 
walk-in schools in those neighborhoods where the schools were already 
within the approved ratios; (2) students would be transported to the 
nearest available school; and (3) no student would be transported further 
than two miles or, if traveling that distance would take more time, for 
longer than 20 minutes. The District Court appointed a master to 
supervise the logistics of the plan. Certain other particulars were worked 
out when the master’s report was filed. The plan has now been in effect 
for three school years.



Court’s limited findings regarding liability,5 we concluded that 
there was no warrant for imposing a systemwide remedy. 
Rather, the District Court should have “determine[d] how 
much incremental segregative effect these violations had on 
the racial distribution of the Dayton school population as 
presently constituted, when that distribution is compared to 
what it would have been 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.” Id., at 420. In view 
of the confusion evidenced at various stages of the proceedings 
regarding the scope of the violation established, we remanded 
the case to permit supplementation of the record and specific 
findings addressed to the scope of the remedy, id., at 418-419, 
but allowed the existing remedy to remain in effect on remand 
subject to further orders of the District Court, id., at 420-421.

The District Court held a supplemental evidentiary hear­
ing, undertook to review the entire record anew, and entered 
findings of fact and conclusions of law and a judgment dis­
missing the complaint. In support of its judgment, the Dis­
trict Court observed that, although various instances of pur­
poseful segregation in the past evidenced “an inexcusable 
history of mistreatment of black students,” 446 F. Supp., at 
1237, plaintiffs had failed to prove that acts of intentional 
segregation over 20 years old had any current incremental 
segregative effects.6 The District Court conceded that the

5 The three parts of the violation found by the District Court are dis­
cussed in n. 3, supra. Racial imbalance, we noted in Dayton I, is not 
per se a constitutional violation, and rescission of prior resolutions pro­
posing desegregation is unconstitutional only if the resolutions were re­
quired in the first place by the Fourteenth Amendment. 433 U. S., at 
413-414. Thus, the scope of liability extended no further than the use 
of some optional zones, which apparently had a present effect only as to 
certain high schools, and the rescission of the resolutions so far as they 
pertained to these high schools. See id., at 412.

6 The District Court observed that “ [m]any of these practices, if they

4 DAYTON BOARD OF EDUCATION v. BRINKMAN



Dayton schools were highly segregated but ruled that the 
Board’s failure to alleviate this condition was not actionable 
absent sufficient evidence that the racial separation had been 
caused by the Board’s own purposeful discriminatory conduct, 
In the District Court’s eyes, plaintiffs had failed to show either 
discriminatory purpose or segregative effect, or both, with 
respect to the challenged practices and policies of the Board, 
which included faculty hiring and assignments, the use of 
optional attendance zones and transfer policies, the location 
and construction of new and expanded school facilities, and 
the rescission of certain prior resolutions recognizing the 
Board’s responsibility to eradicate racial separation in the 
public schools.7

DAYTON BOARD OF EDUCATION v. BRINKMAN 5

existed today, would violate the Equal Protection Clause.” Brinkman v. 
Gilligan, 446 F. Supp. 1232, 1236 (SD Ohio 1977). The court identified 
certain Board policies as being “ among” such practices: until at least 
1934, black elementary students were kept separate from white students; 
until approximately 1950 high school athletics were deliberately segregated 
by race; and until about that same time black students at one high school 
were ordered or induced to sit at the rear of classrooms and suffered other 
indignities.

7 Reviewing the faculty assignment and hiring practices, the District 
Court found that until at least. 1951 the Board’s policies had been inten­
tionally segregative. But in that year the Board instituted a policy of 
“ dynamic gradualism” and “by 1969 all traces of segregation were virtually 
eliminated.” Id., at 1238-1239. Reasoning that the predominant factor 
in the racial ident.ifiability of schools is the pupil population and not the 
faculty, the court ruled that plaintiffs had not established that, past dis­
crimination in faculty assignments had an incremental segregative effect.

Similarly, the court ruled that the plaintiff children had not- shown 
that the Board’s use of attendance zones and transfers denied equal pro­
tection. In certain instances, segregative intent had not been satisfactorily 
demonstrated. In fact, the District Court reversed itself with respect to 
the high school optional zones it had earlier held unconstitutional. In 
other instances, current segregative effect had not been proved. Though 
another high school, Dunbar, had been created and maintained until 1962 
as a citywide black high school, the District Court found that because of 
the increasing black population in that area Dunbar would have been



6 DAYTON BOARD OF EDUCATION v. BRINKMAN

The Court of Appeals reversed. The basic ingredients of 
the Court of Appeals’ judgment were that at the time of 
Brown I, the Dayton Board was operating a dual school sys­
tem, that it was constitutionally required to disestablish that 
system and its effects, that it had failed to discharge this duty, 
and that the consequences of the dual system, together with 
the intentionally segregative impact of various practices since 
1954, were of systemwide import and an appropriate basis for 
a systemwide remedy. In arriving at these conclusions, the 
Court of Appeals found that in some instances the findings of 
the District Court were clearly erroneous and that in other 
respects the District Court had made errors of law. 583 F. 2d, 
at 247. Petitioners contend that the District Court, not the 
Court of Appeals, correctly understood both the facts and the 
law.

virtually all black by 1960 anyway. And though until the early 1950’s 
black orphans had been bused past nearby white schools to all-black 
schools, this “arguably” discriminatory conduct had not been shown by 
“ objective proof” to have any continued segregative effect. Id., at 1241.

The court also looked to school construction and siting practices. 
Although 22 of 24 new schools, 78 of 95 additions, and 26 of 26 portable 
schools built or utilized by the Board between 1950 and 1972 opened 
virtuaEy all black or all white, and though many of the accompanying 
decisions appeared to be so without any rationale as to be “ haphazard,” 
the District Court found that the plaintiffs had not shown purposeful 
segregation. The court also refused to investigate whether the Board 
had any legitimate grounds for the failure to close some schools and con­
solidate others when enrollment declined in recent years. Though such a 
course would have decreased racial separation and saved money, the court 
found no evidence of discriminatory purpose in those facts. Nor did the 
court see any hint of impermissible purpose in the Board’s decisions in 
the 1940’s to supply school services for legally segregated housing projects 
and to rent elementary school space in such projects.

Finally, the court held that the Board’s rescission of its earlier reso­
lutions was not violative of the Fourteenth Amendment since, in light of 
the court’s finding that the current segregation had no unconstitutional 
origin, the Board had no constitutional obligation to adopt the resolutions 
in the first place.



DAYTON BOARD OF EDUCATION v. BRINKMAN 7

II
A

The Court of Appeals expressly held that, “ at the time of 
Brown I, defendants were intentionally operating a dual 
school system in violation of the Equal Protection Clause of 
the fourteenth amendment,” and that the “ finding of the 
District Court to the contrary is clearly erroneous.” 583 F. 
2d, at 247 (footnote omitted). On the record before us, we 
perceive no basis for petitioners’ challenge to this holding of 
the Court of Appeals.8

Concededly, in the early 1950’s, “ 77.6 percent of all students 
attended schools in which one race accounted for 90 percent 
or more of the students and 54.3 percent of the black students 
were assigned to four schools that were 100 percent black.” 
Id., at 248-249. One of these schools was Dunbar High 
School, which, the District Court found, had been established 
as a districtwide black high school with an all-black faculty 
and a black principal, and remained so at the time of Brown I  
and up until 1962. 446 F. Supp., at 1246. The District Court 
also found that “among” the early and relatively undisputed 
acts of purposeful segregation was the establishment of Gar­
field as a black elementary school. Id., at 1236-1237. The 
Court of Appeals found that two other elementary schools 
were, through a similar process of optional attendance zones 
and the creation and maintenance of all-black faculties, inten­
tionally designated and operated as all-black schools in the

8 We have no quarrel with our Brother Stewart’s general conclusion 
that there is great value in appellate courts showing deferrence to the fact­
finding of local trial judges. Post, a t ---- . The clearly erroneous standard
serves that purpose well. But under that standard, the role and duty of 
the Court of Appeals are clear: it must determine whether the trial court’s 
findings are clearly erroneous, sustain them if they are not, but set them 
aside if they are. The Court of Appeals performed its unavoidable duty in 
this case and concluded that the District Court had erred. Differing with 
our dissenting Brothers, we see no reason on the record before us to upset 
the judgment of the Court of Appeals in this respect.



1930’s, in the 1940’s, and at the time of Brown I. 583 F. 2d, at 
249, 250-251. Additionally, the District Court had specifically 
found that in 1950 the faculty at 100% black schools was 
100% black and that the faculty at all other schools was 100% 
white. 446 F. Supp., at 1238.

These facts, the Court of Appeals held, made clear that the 
Board was purposefully operating segregated schools in a sub­
stantial part of the district, which warranted an inference and 
a finding that segregation in other parts of the system was 
also purposeful absent evidence sufficient to support a finding 
that the segregative actions “were not taken in effectuation of 
a policy to create or maintain segregation” or were not among 
the “ factors . . . causing the existing condition of segregation 
in these schools.” Keyes v. School Dist. No. 1, 413 IT. S. 189,
214 (1973); see id., at 203; Columbus, ante, at ---- . The
District Court had therefore ignored the legal significance of 
the intentional maintenance of a substantial number of black 
schools in the system at the time of Brown I. It had also 
ignored, contrary to Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U. S. 1, 18 (1971), the significance of pur­
poseful segregation in faculty assignments in establishing the 
existence of a dual school system; 9 here the “purposeful

8 DAYTON BOARD OF EDUCATION v. BRINKMAN

9 We do not deprecate the relevance of segregated faculty assignments 
as one of the factors in proving the existence of a school system that is dual 
for teachers and students; but to the extent that the Court of Appeals 
understood Sivann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 
1 (1971), as holding that faculty segregation makes out a prima facie case 
not only of intentionally discriminatory faculty assignments contrary to 
the Fourteenth Amendment but also of purposeful racial assignment of 
students, this is an overreading of Swann.

The Court of Appeals also held that the District Court had not given 
proper weight to Oliver v. Michigan State Board of Education, 508 F. 2d 
178, 182 (CA6 1974), cert, denied, 421 U. S. 963 (1975), where the Court 
of Appeals had held that “ [a] presumption of segregative purpose arises 
when plaintiffs establish that the natural, probable, and foreseeable result of 
public official’s action or inaction was an increase or perpetuation of public



DAYTON BOARD OF EDUCATION v. BRINKMAN 9

segregation of faculty by race was inextricably tied to racially 
motivated student-assignment practices.” 583 F. 2d, at 248. 
Based on its review of the entire record, the Court of Appeals 
concluded that the Board had not responded with sufficient 
evidence to counter the inference that a dual system was in 
existence in Dayton in 1954. Thus, it concluded that the 
Board’s “ intentional segregative practices cannot be confined 
in one distinct area” ; they “ infected the entire Dayton public 
school system.” Id., at 252.

B
Petitioners next contend that, even if a dual system did 

exist a quarter of a century ago, the Court of Appeals erred 
in finding any widespread violations of constitutional duty 
since that time.

Given intentionally segregated schools in 1954, however, 
the Court of Appeals was quite right in holding that the Board 
was thereafter under a continuing duty to eradicate the effects
of that system, Columbus, ante, at ------------- , and that the
systemwide nature of the violation furnished prima facie proof 
that current segregation in the Dayton schools was caused at 
least in part by prior intentionally segregative official acts. 
Thus, judgment for the plaintiffs was authorized and required 
absent sufficient countervailing evidence by the defendant

school segregation,” and that “ [t]he presumption becomes proof unless 
the defendants affirmatively establish that their action or inaction was a 
consistent and resolute application of racially neutral policies.”  We have 
never held that as a general proposition the foreseeability of segregative 
consequences makes out a prima facie case of purposeful racial discrimina­
tion and shifts the burden of producing evidence to the defendants if they 
are to escape judgment; and even more clearly there is no warrant in our 
cases for holding that such foreseeability routinely shifts the burden of 
persuasion to the defendants. Of course, as we hold in Columbus today, 
ante, at -— , proof of foreseeable consequences is one type of quite relevant 
evidence of racially discriminatory purpose, and it may itself show a failure 
to fulfill the duty to eradicate the consequences of prior purposefully 
discriminatory conduct. See supra, at •— .



school officials. Keyes, supra, at 211; Swann, supra, at 26. 
At the time of trial, Dunbar High School and the three black 
elementary schools, or the schools that succeeded them, re­
mained black schools; and most of the schools in Dayton were 
virtually one-race schools, as were 80% of the classrooms. 
“ ‘Every school which was 90 percent or more black in 1951-52 
or 1963-64 or 1971-72 and which is still in use today remains 
90 percent or more black. Of the 25 white schools in 1972-73, 
all opened 90 percent or more white and, if opened, were 90 
percent or more white in 1971-72, 1963-64 and 1951-52.’ ” 
583 F. 2d, at 254 (emphasis in original), quoting Brinkman v. 
Gilligan, 503 F. 2d 683, 694-695 (CA6 1974). Against 
this background, the Court of Appeals held “ [t]hat the evi­
dence of record demonstrates convincingly that defendants 
have failed to eliminate the continuing systemwide effects of 
their prior discrimination and have intentionally maintained 
a segregated school system down to the time the complaint 
was filed in the present case.” 583 F. 2d, at 253. At the very 
least, defendants had failed to come forward with evidence to 
deny “that the current racial composition of the school popu­
lation reflects the systemwide impact” of the Board’s prior 
discriminatory conduct. Id., at 258.

Part of the affirmative duty imposed by our cases, as we 
decided in Wright v. Council oj City of Emporia, 407 U. S. 
451 (1972), is the obligation not to take any action that would 
impede the process of disestablishing the dual system and its 
effects. See also United States v. Scotland Neck City Board 
of Education, 407 U. S. 484 (1972). The Dayton Board, 
however, had engaged in many post-Brown actions that had 
the effect of increasing or perpetuating segregation. The Dis­
trict Court ignored this compounding of the original constitu­
tional breach on the ground that there was no direct evidence 
of continued discriminatory purpose. But the measure of the 
post-Brown conduct of a school board under an unsatisfied 
duty to liquidate a dual system is the effectiveness, not the

10 DAYTON BOARD OF EDUCATION v. BRINKMAN



DAYTON BOARD OF EDUCATION v. BRINKMAN 11

purpose, of the actions in decreasing or increasing the segre­
gation caused by the dual system. Wright, supra, at 460, 462; 
Davis v. School Commissioners of Mobile County, 402 U. S. 
33, 37 (1971); see Washington v. Davis, 426 U. S. 229, 243 
(1976). As was clearly established in Keyes and Swann, the 
Board had to do more than abandon its prior discriminatory 
purpose. 413 U. S., at 200-201, n. 11; 402 U. S., at 28. The 
Board has had an affirmative responsibility to see that pupil 
assignment policies and school construction and abandonment 
practices “are not used and do not serve to perpetuate or
re-establish the dual school system,” Columbus, ante, a t -----,
and the Board has a “ ‘heavy burden’ ” of showing that actions 
that increased or continued the effects of the dual system 
serve important and legitimate ends. Wright, supra, at 467, 
quoting Green v. County School Board, 391 U. S. 430, 439 
(1968).

The Board has never seriously contended that it fulfilled its 
affirmative duty or the heavy burden of explaining its failure 
to do so. Though the Board was often put on notice of the 
effects of its acts or omissions,10 the District Court found that 
“ with one [counterproductive] exception . . .  no attempt was 
made to alter the racial characteristics of any of the schools.” 
446 F. Supp., at 1237. The Court of Appeals held that far 
from performing its constitutional duty, the Board had en­
gaged in “post-1954 actions which actually have exacerbated 
the racial separation existing at the time of Brown I.” 583 
F. 2d, at 253. The court reversed as clearly erroneous the 
District Court’s finding that intentional faculty segregation 
had ended in 1951; the Court of Appeals found that it had

10 The Board heard from the local NAACP and other community groups, 
the Department of Health, Education, and Welfare, the Ohio State Depart­
ment of Education, and a citizens advisory group the Board had appointed; 
at times the Board itself expressed its recognition of the problem and of 
its responsibility, though utimately it did nothing. 446 F. Supp., at 1251— 
1252.



12 DAYTON BOARD OF EDUCATION v. BRINKMAN

effectively continued into the 1970’s.11 12 This was a systemwide 
practice and strong evidence that the Board was continuing 
its efforts to segregate students. Dunbar High School re­
mained as a black high school until 1962, when a new Dunbar 
High School opened with a virtually all-black faculty and 
student body. The old Dunbar was converted into an ele­
mentary school to which children from two black grade schools 
were assigned. Furthermore, the Court of Appeals held that 
since 1954 the Board had used some “optional attendance 
zones for racially discriminatory purposes in clear violation 
of the Equal Protection Clause.” Id., at 255. The District 
Court’s finding to the contrary was clearly erroneous.11 At 
the very least, the use of such zones amounted to a perpetua­
tion of the existing dual school system. Likewise, the Board 
failed in its duty and perpetuated racial separation in the 
schools by its pattern of school construction and site selection, 
recited by the District Court, see n. 7, supra, that resulted in 
22 of the 24 new schools built between 1950 and the filing of 
the complaint opening 90% black or white. The same pat­

11 Under the policy of “dynamic gradualism” instituted in 1951, see n. 7, 
supra, black teachers were assigned to white or mixed schools when the 
surrounding communities were ready to accept black teachers, and white 
teachers who agreed were assigned to black schools. App. 182-Ex. By 
1969 each school in the system had at least one black teacher. The Dis­
trict Court apparently did not think the post-1951 policy was purposeful 
discrimination. 446 F. Supp., at 1238-1239. We think the Court of 
Appeals was completely justified in finding that conclusion to be clearly 
erroneous on the undisputed facts. As late as the 1968-1969 school year, 
the Board assigned 72% of all black teachers to schools that were 90% 
or more black, and only 9% of white teachers to such schools. And faculty 
segregation disappeared completely only after efforts of the Department 
of Health, Education, and Welfare under Title VI of the Civil Rights Act 
of 1964. See 446 F. Supp., at 1238.

12 The Court of Appeals found that the District Court had committed 
clear error in reversing its earlier findings of purpose as to certain optional 
zones, which the Court of Appeals had earlier affirmed and this Court 
had not set aside. 583 F. 2d, at 255.



DAYTON BOARD OF EDUCATION v. BRINKMAN 13

tern appeared with respect to additions of classroom space 
made to existing schools. Seventy-eight of a total of 86 addi­
tions were made to schools that were 90% of one race. We 
see no reason to disturb these factual determinations, which 
conclusively show the breach of duty found by the Court of 
Appeals.

C
Finally, petitioners contend that the District Court cor­

rectly interpreted our earlier decision in this litigation as 
requiring respondents to prove with respect to each individual 
act of discrimination precisely what effect it has had on cur­
rent patterns of segregation.13 This argument results from a 
misunderstanding of Dayton I, where the violation that had 
then been established included at most a few high schools.
See Columbus, ante, a t ---- n. 5 and------; nn. 3 and 5, supra.
We have found no reason to fault the Court of Appeals’ find­
ings after our remand that a sufficient case of current, system- 
wide effect had been established. In reliance on its decision 
in Columbus, the Court of Appeals held that:

“First, the dual school system extant at the time of 
Brown I embraced 'a systemwide program of segregation 
affecting a substantial portion of the schools, teachers, 
and facilities’ of the Dayton schools, and, thus, clearly 
had systemwide impact. . . . Secondly, the post-1954 
failure of defendants to desegregate the school system in 
contravention of their affirmative constitutional duty 
obviously had systemwide impact. . . . The impact of 
defendants’ practices with respect to the assignment of 
faculty and students, use of optional attendance zones, 
school construction and site selection, and grade structure

13 Petitioners also contend that the respondent children have failed to 
establish their standing to bring this action. This challenge is dependent 
on petitioners’ major contentions, for if the Court of Appeals was correct 
that the current, systemwide segregation is a result of past unlawful con­
duct then respondents, as students in the system, clearly have standing.



and reorganization clearly was systemwide in that actions 
perpetuated and increased public school segregation in 
Dayton.” 583 F. 2d, at 258, quoting Keyes, supra, at 201.

As we note in Columbus today, this is not a misuse of 
Keyes, “where we held that purposeful discrimination in a 
substantial part of a school system furnishes a sufficient basis 
for an inferential finding of a systemwide discriminatory in­
tent unless otherwise rebutted, and that given the purpose to 
operate a dual school system one could infer a connection 
between such a purpose and racial separation in other parts
of the school system.” Columbus, ante, at -----. See also
Swann, supra, at 26. The Court of Appeals was also quite 
justified in utilizing the Board’s total failure to fulfill its 
affirmative duty—and indeed its conduct resulting in increased 
segregation—to trace the current, systemwide segregation 
back to the purposefully dual system of the 1950’s and to 
the subsequent acts of intentional discrimination. See
supra, a t ---- ; Columbus, ante, a t ----- ; Keyes, supra, at 211;
Swann, supra, at 21, 26-27.

Because the Court of Appeals committed no prejudicial 
errors of fact or law, the judgment appealed from must be 
affirmed.

14 DAYTON BOARD OF EDUCATION v. BRINKMAN

So ordered.



SUPREME COURT OF THE UNITED STATES

No. 78-627

Dayton Board of Education 
et al., Petitioners, 

v.
Mark Brinkman et al.

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

[July 2, 1979]

M b. Justice R ehnquist, with whom M e. Justice Powell 
joins, dissenting.

For the reasons set out in my dissent in Columbus Board 
of Education v. Penick, No. 78-610 (1979), I cannot join the 
Court’s opinion in this case. Both the Court of Appeals for 
the Sixth Circuit and this Court used their respective Colum­
bus opinions as a roadmap, and for the reasons I could not 
subscribe to the affirmative duty, the foreseeability test, the 
cavalier treatment of causality, and the false hope of Keyes 
and Swann rebuttal in Columbus, I cannot subscribe to them 
here. Little would be gained by another “blow-by-blow” 
recitation in dissent of how the Court’s cascade of presump­
tions in this case sweeps away the distinction between de 
facto and de jure segregation.

In its haste to affirm the Court of Appeals, the Court barely 
breaks stride to note that there were some “overreading of 
Swann”  in the Court of Appeals conclusion that there was a 
“dual” school system at the time of Brown I, and that the 
court had the wrong conception of segregative intent, i. e., the 
mysterious Oliver standard which this Court thinks the Court 
of Appeals talks a lot about but never really applies. Ante, 
at 8-9, n. 9. But as the Court more candidly recognizes in this 
case, the affirmative duty renders any discussion of segrega­
tive intent after 1954 gratuitous anyway. The Court is also 
more honest about the stringency of the standard by which 
all post-1954 conduct is to be judged: “The Board has a



2 DAYTON BOARD OF EDUCATION v. BRINKMAN

‘ “heavy burden” ’ of showing that actions that increased 
or continued the effects of the dual school system serve 
important and legitimate ends.” Ante, at 11 (emphasis 
added).

I think that the Columbus and Dayton District Court 
opinions point out the limitation of my Brother Stewart’s 
perception of the proper roles of the trial judge and reviewing 
courts. That this and other appellate courts must defer to 
the factfindings of trial courts is unexceptionable. With the 
aid of this observation, he concludes that the Court of Ap­
peals should be affirmed in Columbus, insofar as it agreed 
with the District Court there, and should be reversed here 
because it upset the District Court’s conclusion that there was 
no warrant for a desegregation remedy. But even a casual 
reading of the District Court opinions makes it very clear 
that the primary determinants of the different results in these 
two cases were two totally different conceptions of the law 
and methodology that govern school desegregation litigation. 
The District Judge in Dayton did not employ a post-1954 
“affirmative duty” test. Violations he did identify were 
found not to have any causal relationship to existing condi­
tions of segregation in the Dayton school system. He did 
not employ a foreseeability test for intent, hold the school 
system responsible for residential segregation, or impugn the 
neighborhood school policy as an explanation for some exist­
ing one race schools. In short, the Dayton and Columbus 
district judges had completely different ideas of what the law 
required. As I am sure my Brother Stewart agrees, it is for 
reviewing courts to make those requirements clear.

Thus the District Court opinions in these two cases demon­
strate dramatically the hazards presented by the laissez-faire 
theory of appellate review in school desegregation cases. And 
I have no doubt that the Court of Appeals’ heavy-handed 
approach in this case is to some degree explained by the per­
ceived inequity of imposing a systemwide racial-balance



DAYTON BOARD OF EDUCATION v. BRINKMAN 3

remedy on Columbus while finding no violation in Dayton.* 
The simple meting out of equal remedies, however, is not by 
any means “equal justice under law.”

*The Court of Appeals did not even remand to allow the Dayton school 
authorities the opportunity to show that a more limited remedy was war­
ranted, even though the Court of Appeals made findings of fact with re­
spect to liability that had never been made before by any court in this 
long litigation, and therefore were never part of a remedy hearing. This 
doubtlessly reflects the Court of Appeals’ honest appraisal of the futility of 
attempts at Swann rebuttal by a School Board.