Freeman v. Pitts Brief Amicus Curiae in Support of Respondents

    No. 89-1290

In the

Supreme Court of tlrr United & ttxtz&
October Term, 1990

Robert R. Freeman, et al.,
Petitioners,

Willie Eugene P itts, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW AS 

A M IC U S CURIAE  IN SUPPORT OF RESPONDENTS

Herbert M. Wachtell, Co-Chairman 
William H. Brown III, Co-Chairman 
Norman Redlich, Trustee 
Barbara R. Arnwine 
Thomas J. Henderson 
Paul Holtzman 
Lawyers’ Committee For 

Civil Rights Under Law 
1400 Eye Street, NW 
Washington, DC 20005 
(202) 371-1212

June 21, 1991

Norman Redlich*
Stephen R. Neuwirth 
Jeffrey I. Lang 
Wachtell, Lipton, Rosen 

&Katz
299 Park Avenue
New York, New York 10171
(212)371-9200

Burke Marshall 
127 Wall Street
New Haven, Connecticut 06520 
(203) 432-4953
Counsel fo r Amicus Curiae 
* Counsel of Record

y



1

TABLE OF CONTENTS

PAGE

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

CONSENT OF PARTIES.................................................  1

INTEREST OF A M IC U S .................................................  1

SUMMARY OF ARGUM ENT.......................................  2

ARGUMENT......................................................................  6

I. THE AFFIRMATIVE OBLIGATION TO 
ELIMINATE THE VESTIGES OF DE JURE 
SEGREGATION AS FAR AS PRACTICA­
BLE EXTENDS TO ALL ASPECTS OF A 
SCHOOL SYSTEM, AND CANNOT BE 
ACCOMPLISHED OR REVIEWED ON AN 
INCREMENTAL BA SIS...................................  6

A. Incremental determinations of “ unitary” 
status would be inconsistent with all prior 
decisions of this Court.................................  7

1. Dowell set forth the workable stan­
dards that do not allow an incremental 
approach to determining when a school 
system has achieved “ unitary” status . 7

2. This Court has consistently recognized
that the racial identification of schools 
results from interrelated features of a 
single system that cannot be isolated 
from each other or subject to divisible 
remedy....................................................... 9



11

PAGE

3. This C ourt’s decisions are in full 
accord with the empirical findings of 
educators and social scientists.............. 12

B. Incremental findings of unitary status 
would frustrate the transition to unitary 
school systems mandated by Brown and all 
subsequent decisions of this C o u rt............
1. Incremental findings of unitary status

would allow vestiges of de jure segrega­
tion to survive the termination of court 
jurisdiction in a school d istrict............

2. Incremental unitary findings would 
preclude future use of programs that 
implicate several facets of the school
system ....................................................... 16

3. Incremental review of unitary status 
would give rise to repeated and pro­
tracted litigation......................... ...........  17

C. The vestiges of de jure segregation in
DeKalb County have had interrelated seg­
regative effects, and cannot be considered 
in iso lation ....................................... ............  18

II. THE DEKALB COUNTY SCHOOL SYSTEM 
REMAINS UNDER AN AFFIRMATIVE 
DUTY TO REMEDY, TO THE EXTENT 
PRACTICABLE, CURRENT RACIAL 
IDENTIFIABILITY OF THE SYSTEM’S 
SCHOOLS............................................................  20
A. The demographic changes that have 

occurred in DeKalb County cannot shield 
the school authorities from responsibility 
for remedying existing racial identity in the 
school system—including in the area of 
student assignments

14

14

22



m

B. Where a school board that has not com­
pleted the transition to a unitary system is 
not obligated to implement further affirm­
ative remedial steps, school authorities, 
when they do act, remain obligated to take 
no action that would impede completion of

PAGE

the transition................................................... 28

CONCLUSION..................................................................  30



IV

TABLE OF AUTHORITIES

Cases: p a g e

Adams v. United States, 620 F.2d 1277 (8th Cir.), cert, 
denied, 449 U.S. 826 (1980).....................................17, 27n*

Board o f Educ. o f  Oklahoma City v. Dowell, ____
U.S. ____ , 111 S. Ct. 630 (1991)..............................passim

Bradley v. School Bd., 382 U.S. 103 (1965)................ 4, 10

Brown v. Board o f Education, 347 U.S. 483
(1954) ........................................................................2, 6, 1, 9

Brown v. Board o f Education, 349 U.S. 294
(1955) .............................................................................2, 4, 9

Clark v. Board o f Educ., 705 F.2d 265 (8th Cir. 1983). 17

Columbus Bd. o f  Educ. v. Penick, 443 U.S. 449
(1979)........................................   passim

Davis v. Board o f School Comm’rs, 402 U.S. 33
(1971)............................................................................. 4, 10

Davis v. East Baton Rouge Parish School Bd., I l l  
F.2d 1425 (5th Cir. 1983).......................     22

Davis v. School District, 309 F. Supp. 734 (E.D. Mich.
1970), a ff’d, 443 F.2d 573 (6th Cir.), cert, denied,
404 U.S. 913 (1971)....................................................... 27n*

Dayton Bd. o f  Educ. v. Brinkman (Dayton II), 443 
U.S. 526 (1979)........................................    passim

Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), a ff’d,
423 U.S. 963 (1975).......................................................  27n*

Green v. New Kent County School Bd., 391 U.S. 430 
(1968).............................  passim



V

Hart v. Community School Bd., 383 F. Supp. 699 
(E.D.N.Y. 1974), a ff’d, 512 F.2d 37 (2d Cir. 1975) . 27n*

Keyes v. School District No. 1, 413 U.S. 189
(1973)...............   passim

Lee v. Macon County Bd. o f Educ., 616 F.2d 805 (5th 
Cir. 1980)........................................................................  22

Milliken v. Bradley {Milliken II), 433 U.S. 267 (1977) 28

Morgan v. Burke, 926 F.2d 86 (1st Cir. 1991)............ 18

Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987).......... 18

N AACP  v. Lansing Bd. o f  Educ., 559 F.2d 1042 (6th 
Cir.), cert, denied, 434 U.S. 997 (1977)................... 27n*

Pasadena Bd. o f  Educ. v. Spangler, A ll U.S. 424 
(1976)................................................................................  12

Penick v. Columbus Bd. o f Educ., 429 F. Supp. 229 
(S.D. Ohio 1977)............................................................ 24, 26

Rogers v. Paul, 382 U.S. 198 (1965)................... 4, 9, 10, 15

Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 402 
U.S. 1 (1971)..................................................................passim

United States v. Board o f School Comm’rs, 573 F.2d 
400 (7th Cir. 1978)........................................................  27n*

United States v. Montgomery Bd. o f Educ., 395 U.S.
225 (1969).................................................................. 4, 10, 15

United States v. Scotland Neck Bd. o f Educ., 407 U.S.
484 (1972)........................................................................16, 29

United States v. Yonkers Bd. o f  Educ., 624 F. Supp.
1276 (S.D.N.Y. 1985), a ff’d, 837 F.2d 1181 (2d Cir.
1987), cert, denied, 486 U.S. 1055 (1988).................. 27n*

PAGE



VI

Vaughns v. Board o f Educ., 758 F.2d 983 (4th Cir.
1985)............................. ....................................................  22

Wright v. Council o f  Emporia, 407 U.S. 451 
(1972) ...........................................................................15-16, 29

PAGE

Other Authorities:

Billingsley, et al., “ School Segregation and Residential 
Segregation: A Social Science Statement,” in School 
Desegregation: Past, Present, and Future (W.G. 
Stephan & J.R. Feagin, eds.) (1980)................14n*, 25, 26

A. Bryk, V. Lee and J. Smith, “ High School Organi­
zation and its Effects on Teachers and Students,” in 
Choice and Control in American Education, Vol. I 
(W.H. Clune and J.P. White, eds.) (1990)_______ 12-13

G. Forehand and M. Rogasta, “A Handbook for Inte­
grated Schooling,” U.S. Dept, of Health, Education 
and Welfare (1976)........................................................ 13, 14

W.D. Hawley, et al., Assessment o f Current Knowl­
edge About the Effectiveness o f  School Desegrega­
tion Strategies, Vanderbilt University Study, Vol. I 
(1981).........................    14

W.D. Hawley, “ Equity and Quality in Education: 
Characteristics of Effective Desegregated Schools,” 
in Effective School Desegregation (W.D. Hawley, 
ed.) (1981).........      13

Hughes, Gordon and Hillman, Desegregating Ameri­
ca’s Schools (1980) .........................................................  13

G. Orfield, Must We Bus? Segregated Schools and 
National Policy (1978)..................................................... 14n*

D. Pearce, Breaking Down Barriers: New Evidence on 
the Impact o f Metropolitan School Desegregation on 
Housing Patterns (1980) 27



S. Purkey and M. Smith, “ Effective Schools—A 
Review,” 83(4) Elementary School Journal 440 
(1983)................................................................................  12

R. Scott and J. McPartland, “ Desegregation as 
National Policy: Correlates of Racial Attitudes,” 19 
Amer. Educ. Research J. 397 (1984).........................  13

Sheehan, “A Study of Attitude Changes in Desegre­
gated Intermediate Schools,” 53 Sociology o f Educa­
tion 51 (1980).......................................   13

Tauber, “ Housing, Schools, and Incremental Segrega­
tive Effects,” 441 Annals o f the American Academy 
o f Political and Social Science 157 (1979).................. \4n*

Tauber, Demographic Perspectives on Housing and 
School Segregation, 21 Wayne L. Rev. 833 (1975).. 26

Tauber, “ School Desegregation and Racial Housing 
Patterns” in New Directions fo r  Testing and Mea­
surement: Impact o f  Desegregation (D. Monti, ed.)
(1982).............................................„................................. 27

Taylor, Brown, Equal Protection and the Isolation o f  
the Poor, 95 Yale L.J. 1700 (1986)...........................  27

U.S. Commission on Civil Rights, Racial Isolation in 
the Public Schools (1967)............................................. 13

U.S. Commission on Civil Rights, Fulfilling the Letter 
and Spirit o f the Law: Desegregation o f the Nation’s 
Public Schools (1976)................. ................................... 14n*

vii

PAGE



In t h e

BuprEme (Emtrt nf tljB lEnteii Btates
October Term, 1990 

No. 89-1290

Robert R. Freeman, et al.,
Petitioners,

Willie Eugene Pitts, et al.,
Respondents.

on writ of certiorari to the united states 
court of appeals for the eleventh circuit

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW AS 

A M IC U S CURIAE  IN SUPPORT OF RESPONDENTS

CONSENT OF PARTIES

Petitioners and respondents have consented to the filing of 
this brief, and their letters of consent are being filed sepa­
rately herewith.

INTEREST OF AMICUS

The Lawyers’ Committee for Civil Rights Under Law 
(“ Lawyers’ Committee” ) was established in 1963 at the 
request of President Kennedy to help assure civil rights to all 
Americans by affording legal services otherwise unavailable 
to minorities and the poor pursuing claims for equal treat-



2

ment under the law. The Lawyers’ Committee is a non-profit 
private corporation that has enlisted the services of thousands 
of members of the private bar in cases involving voting, edu­
cation (including school desegregation), employment, hous­
ing, municipal services, the administration of justice and law 
enforcement.

The Lawyers’ Committee has a long history of direct sup­
port of and participation in cases in the federal courts fur­
thering school desegregation. This Court’s decision will 
undoubtedly have significant implications in other school 
desegregation cases. Amicus submits that its experience in 
school desegregation litigation enables it to provide a perspec­
tive different from the parties and other amici on the issues 
before this Court.

SUMMARY OF ARGUMENT

The DeKalb County public schools were segregated in 
1954. They were segregated in 1969, when this case began, 
and they remain segregated today. At no time has petitioner 
school board fulfilled the obligation imposed on it by Brown 
v. Board o f Education, 347 U.S. 483 (1954), 349 U.S. 294 
(1955), and Green v. New Kent County School Bd., 391 U.S. 
430 (1968), to achieve a unitary school system. Contrary to 
what it would have this Court believe now, it is not operating 
a school system overwhelmed by demographic changes that 
frustrated its efforts to achieve “ a unitary system in which 
racial discrimination would be eliminated root and branch.” 
Swann v. Charlotte-Mec/clenburg Bd. o f Educ., 402 U.S. 1, 
15 (1971). It made no such efforts. To the contrary, as the 
Court below said (887 F.2d at 1440-41):

Despite our [previous] admonishments [in this case], the 
district court ruled that the DeKalb County School 
Board (“ DCSS”) is under no affirmative duty to take 
steps to desegregate an acknowledged segregated system 
in the area of student assignment because the DCSS 
closed all of its de jure black schools in 1969,

* * * *



3

Black students constitute 47 percent of the DCSS popu­
lation. Despite the system’s racial balance, 50 percent of 
the black students attend schools with black populations 
of more than 90 percent. Similarly, 27 percent of the 
DCSS’s white students attend schools with white popula­
tions of more than 90 percent. The DCSS operates a 
segregated school system.

Under these circumstances the district court was plainly 
wrong, under the decisions of this Court, in denying any fur­
ther relief to plaintiffs except in the limited area of faculty 
reassignments, and in refusing further supervision of the 
school board other than in that regard. The Court below 
accordingly was plainly right in reversing the district court 
and requiring it to see to it that the school board continue to 
take all practicable steps to achieve a unitary system. As this 
Court recently said, the inquiry was properly directed to the 
question “ whether [the school board has] complied in good 
faith with the desegregation decree since it was entered,” 
which it clearly has not, and “ whether the vestiges of past 
discrimination [have] been eliminated to the extent practica­
ble,” which certainly has not happened. See Board o f Educ.
o f Oklahoma City v. Dowell, ____  U.S. ____ , 111 S. Ct.
630, 638 (1991).

Petitioner seeks to avoid the force of the application of 
these principles in two ways. The first, as the Court below 
noted, is by reliance on its action of closing the black schools 
of its dual system in 1969, thus taking a preliminary step 
towards the elimination of racial student assignments. In this 
way petitioners persuaded the district court to treat the mat­
ter of student assignments as a closed book that could not be 
reopened despite the overwhelming evidence of racial segrega­
tion in the system, and despite petitioner’s admitted failure to 
eliminate the vestiges of de jure segregation in other facets of 
school operations, such as faculty, staff, and facilities. See 
Green v. New Kent County School Bd., supra, 391 U.S. at 
435; Board o f Educ. o f Oklahoma City v. Dowell, supra, 111 
S. Ct. at 638. Secondly, petitioner relies on the evidence of 
concededly large population moves into the county in the



4

past decade and a half, causing significant changes in the size 
and racial composition of the school population.

Neither of these factors should be held to excuse petitioner 
from its well-established duty to eliminate vestiges of de jure 
racial segregation and achieve a unitary system in which 
racial discrimination is eliminated root and branch.

With regard to the first point, the decisions of this Court 
since Green, supra, have consistently required school boards 
and supervising district courts to treat the task of eliminating 
the vestiges of racial discrimination in terms of the entire 
school system rather than its component parts. De jure segre­
gation is a system-wide constitutional violation. The remedy 
requires examining and treating all aspects of the school sys­
tem as one problem, needful of coordinated attention. See 
Brown v. Board o f  Education, 349 U.S. 294 (1955) (Brown 
II); Green, supra; Swann v. Charlotte-Mecklenburg Bd. o f  
Educ., 402 U.S. 1 (1971). See also Davis v. Board o f School 
Comm’rs, 402 U.S. 33, 37 (1971); Rogers v. Paul, 382 U.S. 
198 (1965); Bradley v. School Bd., 382 U.S. 103, 105 (1965); 
United States v. Montgomery Bd. o f  Educ., 395 U.S. 225, 
231 (1969). Thus in Keyes v. School District No. 1, 413 U.S. 
189 (1973), the Court expressly applied a presumption that 
discriminatory action in a particular aspect of the system 
would necessarily spread to and affect other components of 
the system. Id., 413 U.S. at 196, 201-2, 214. See also Dayton 
Bd. o f  Educ. v. Brinkman (Dayton II), 443 U.S. 526 (1979); 
Columbus Bd. o f  Educ. v. Penick, 443 U.S. 449, 467 (1979). 
The system approach was reiterated in Dowell this year. See 
Dowell, supra, 111 S. Ct. at 636, 638. Here petitioner’s fail­
ure to deal with its whole system in a unitary fashion is 
admitted. See Point I, infra.

Wholly apart from this Court’s repeated insistence on 
system-wide analysis and treatment, the incremental approach 
urged by petitioner and embraced by the district court will 
not work in practice. Achievement of a unitary system means 
elimination, to the extent practicable, of racially identifiable 
schools. It is common experience that racial segregation in 
faculty and staff, such as that petitioner has permitted to per­
sist in this case, along with disparities in facilities and 
resources, contributes to the perception of schools as



5

“ black” or “ white.” Thus, the need for system orientation, 
rather than an incremental, piece-by-piece approach, is recog­
nized and endorsed by the extensive literature on school 
desegregation. See Point I, infra.

The extensive demographic changes that have taken place 
in DeKalb County since the entry of the judgment in this case 
in 1969 do not diminish the legal and constitutional obliga­
tions of petitioner. The school authorities did not cause the 
onrushing tide of people into DeKalb County. But during this 
period of influx the schools remained racially identifiable 
because of the decisions of the DeKalb County school board 
which never eliminated faculty and staff segregation and, 
notwithstanding purportedly racially neutral student assign­
ment practices in 1969 and 1970, assigned black students pre­
dominantly to those schools where black faculty and staff 
were located. Given that “ people gravitate toward schools,” 
as this Court has recognized, the school authorities cannot 
walk away from their responsibility for the persistence of 
racially identifiable schools whose racial stamp encouraged, 
and was reinforced by, the diversion of the flow of people 
into two streams—white and black. See Point II, infra.

Petitioner thus remains responsible for taking all practica­
ble steps to remedy existing racial identification of the 
DeKalb County schools-—including in the area of student 
assignments—until all vestiges of de jure segregation have 
been eradicated. Throughout the transition to a unitary sys­
tem, the DeKalb County school board is also obligated to 
take no action, with respect to any aspect of the school sys­
tem, that would impede the completion of the transition. The 
Court below correctly left the question of exactly what steps 
are necessary to eliminate completely the dual system to the 
school board itself, and, in the event of default by school 
authorities in that responsibility, to the discretion of the dis­
trict court. See Point II, infra.



6

ARGUMENT

I
THE AFFIRMATIVE OBLIGATION TO ELIMINATE 
THE VESTIGES OF DE JURE  SEGREGATION AS FAR 
AS PRACTICABLE EXTENDS TO ALL ASPECTS OF A 
SCHOOL SYSTEM, AND CANNOT BE ACCOMPLISHED 

OR REVIEWED ON AN INCREMENTAL BASIS

Since Brown v. Board o f Education, this Court has consist­
ently reaffirmed the affirmative duty of school boards to 
complete the transition from a de jure segregated school sys­
tem to a system in which the vestiges of past discrimination 
have been eliminated to the extent practicable. This Court 
has recognized that various discriminatory acts or omissions 
in a single school system have interrelated effects that cause 
and perpetuate the vestiges of de jure segregation, including 
racially identifiable schools, and that discrimination in one 
particular component of the system cannot be considered in 
isolation. Thus the Court has consistently applied system- 
wide remedies to address the system-wide nature of the con­
stitutional violation. This Court’s decision in Board o f  Educ. 
o f Oklahoma City v. Dowell reiterated these principles and 
set forth the workable standards for determining when a for­
merly de jure segregated school system has been brought into 
compliance with the Constitution—and thus when court juris­
diction in a desegregation case can properly be withdrawn.

As demonstrated below, however, incremental findings of 
“ unitary” status—and with them incremental terminations of 
court authority to impose remedies addressing particular 
facets of a school system—would effectively preclude the type 
of review of school systems, and of “ every facet of school 
operations,” mandated by Dowell and the prior decisions of 
this Court. Such incremental “ unitary” findings would 
require district courts, based on the implementation by a 
school board of particular non-discriminatory practices, to 
sequentially “ carve out” discrete areas of the school system 
from further judicial consideration—notwithstanding that



7

central vestiges of discrimination affecting those discrete 
areas, including the racial identity of schools, had never been 
remedied. Such incremental reviews of unitary status would 
certainly inhibit the ability of district courts to determine, as 
Dowell now requires, whether at a given point in time all ves­
tiges of past discrimination have been eliminated from the 
school system to the extent practicable.

Incremental reviews of “ unitary” status also would inevita­
bly prove unworkable in practice. Such reviews would require 
district courts to treat in isolation facets of school systems 
that are, as educators and social scientists have recognized, 
integrally related in fact. Such findings could also preclude 
the use of such remedies as magnet schools or majority-to- 
minority transfer programs that necessarily require court con­
sideration of various facets of the school system—facets that 
may already have been “ carved out” from the remedial 
power of the district court by an earlier finding of “ unitari­
ness.” Moreover, the opportunity for such incremental find­
ings can only be expected to give rise to repeated and 
protracted litigations, as school boards continually seek to 
narrow the scope of district court review even before the 
transition to a “ unitary” system has been completed.

This Court should instead reaffirm the principles articu­
lated in Brown and all subsequent cases: only the transition 
to a racially nondiscriminatory school system can cure the 
constitutional violation of de jure segregation and justify the 
removal of judicial jurisdiction over the school district.

A. Incremental determinations of “ unitary” status would be 
inconsistent with all prior decisions of this Court.
1. Dowell set forth the workable standards that do not 

allow an incremental approach to determining when a 
school system has achieved “ unitary” status.

In Board o f Educ. o f  Oklahoma City v. Dowell, ____U.S.
____ , 111 S. Ct. 630 (1991), this Court reiterated that a
school desegregation decree can be dissolved only when a 
school board has “ made a sufficient showing” that “ a school 
system . . . has been brought into compliance with the com­
mand of the Constitution.” Id., I l l  S. Ct. at 636, 638. This



8

Court set forth the inquiry necessary to determine whether 
such compliance has been achieved: district courts should 
consider “ whether [a school board has] complied in good 
faith with the desegregation decree since it was entered, and 
whether the vestiges of past discrimination [have] been elimi­
nated to the extent practicable.” Id. at 638.

This Court then explained in plain terms the standard for 
determining whether the vestiges of de jure segregation have 
in fact been eliminated as far as practicable. Reiterating that 
every facet of the school system must be free from those ves­
tiges, this Court instructed that:

the District Court should look not only at student 
assignments, but “ to every facet of school operations— 
faculty, staff, transportation, extra-curricular activities 
and facilities.” Green, 391 U.S., at 435, 88 S. Ct., at 
1693. See also Swann, 402 U.S., at 18, 91 S. Ct., at 
1277 (“ [E]xisting policy and practice with regard to fac­
ulty, staff, transportation, extra-curricular activities, and 
facilities” are “ among the most important indicia of a 
segregated system”).

Id. at 638.

Dowell thus embodies fundamental tenets, articulated in 
Green, Swann and the other precedents of this Court, requir­
ing a school board to demonstrate that the school “system 
. . . has been brought into compliance with . . . the 
Constitution” —consistent with the constitutional mandate 
that all vestiges of the de jure system be eliminated to the 
extent practicable. This constitutional mandate would be seri­
ously undermined if district courts were incrementally denied 
the power, with regard to particular facets of the school sys­
tem, to consider appropriate and practicable remedies to 
ensure a complete transition to a unitary system in which 
racial discrimination would be eliminated root and branch.



9

2. This Court has consistently recognized that the racial 
identification of schools results from interrelated fea­
tures of a single system that cannot be isolated from 
each other or subject to divisible remedy.

The constitutional violation addressed in Brown, as in all 
subsequent cases through Dowell, was the operation of 
racially segregated systems, and not merely the existence of 
particular discriminatory policies in discrete areas. This Court 
thus anticipated systemic, rather than incremental, remedies: 
district courts were instructed to apply remedies that “ may 
call for elimination of a variety of obstacles in making the 
transition to school systems operated in accordance with the 
constitutional principles set forth in [Brown / ] .” Brown v. 
Board o f Education {Brown IT), 349 U.S. 294, 300 (1955).

Green v. New Kent County School Bd., 391 U.S. 430 
(1968), reiterated in unambiguous terms that the constitu­
tional violation of de jure segregation is system-wide and that 
even a facially non-discriminatory student assignment plan 
can be rendered ineffective by vestiges of de jure segregation 
in other facets of the system. The “Green factors” reflect 
how in de jure segregated systems, “ [rjacial identification of 
the system’s schools was complete, extending not just to the 
composition of student bodies at the . . . schools but to 
every facet of school operations—faculty, staff, transporta­
tion, extracurricular activities and facilities.” Green, 391 U.S. 
at 435. In Green, the New Kent County school board’s sole 
reliance on a student assignment plan thus “ ignored the 
thrust of Brown i r '  by failing to address the school system 
as an integrated whole. In remanding Green, the Supreme 
Court expressly instructed the district court to consider, for 
example, student assignments “ in light of considerations 
respecting other aspects of the school system such as the mat­
ter of faculty and staff desegregation.” Id. at 442 n.6.

This consideration of school systems, rather than an incre­
mental focus on discrete aspects of a school district, reflected 
earlier Court decisions that had recognized the interrelated 
effects of discrimination in such discrete areas as faculty and 
student assignments. In Rogers v. Paul, 382 U.S. 198 (1965) 
(per curiam), for example, the Court held that students have



10

standing to challenge discriminatory faculty assignments not 
only because “ racial allocation of faculty denies [students] 
equality of educational opportunity,” but also because a seg­
regated faculty can “renderf ] inadequate an otherwise consti­
tutional pupil desegregation plan.” Id. at 200 (emphasis 
added). Similarly, in Bradley v. School Bd., 382 U.S. 103, 
105 (1965) (per curiam), the Court recognized “ the relation 
between faculty allocation on an alleged racial basis and the 
adequacy of the desegregation plans.” See also United States 
v. Montgomery Bd. o f Educ., 395 U.S. 225, 231-32 (1969) 
(desegregation of faculty and staff is “ a goal that we have 
recognized to be an important aspect of the basic task of 
achieving a public school system wholly free from racial dis­
crimination” ) (emphasis added). Indeed, in Davis v. Board o f  
School Comm’rs, 402 U.S. 33, 37 (1971), this Court reiter­
ated the general principle that it constitutes reversible error to 
treat particular areas of a school district “ in isolation from 
the rest of the school system.”

In light of the system-wide nature of the constitutional vio­
lation, this Court since Green has consistently approved 
system-wide, rather than incremental, remedies to achieve the 
mandates of the Fourteenth Amendment. District courts have 
“ not merely the power but the duty to render a decree which 
will so far as possible eliminate the discriminatory effects of 
past as well as bar like discrimination in the future,” Green, 
391 U.S. at 438 n.4. This Court has reiterated that the inter­
action among, and the combined effect of, discrimination in 
various components of a school system causes and can per­
petuate the vestiges of de jure segregation.

Swann, emphasizing a district court’s “ broad power to 
fashion a remedy that will assure a unitary school system,” 
thus explained that the quality of school buildings and equip­
ment, or the organization of sports activities, for example, 
can contribute to a school’s racial identification— 
notwithstanding non-discriminatory student assignment prac­
tices. Swann v. Charlotte-Mecklenburg Bd. o f  Educ., 402 
U.S. 1, 16 (1971) (emphasis added). In particular, the failure 
to integrate faculty and staff will normally perpetuate such 
racial identity: “ [independent of student assignment, where 
it is possible to identify a ‘white school’ or a ‘Negro school’



11

simply by reference to the racial composition of teachers and 
staff . . .  a prima facie case of violation of substantive con­
stitutional rights under the Equal Protection Clause is 
shown.” Id. at 18.

Keyes similarly highlighted the extent to which the various 
facets of a school system must be evaluated together to deter­
mine whether the school district has fulfilled its affirmative 
constitutional obligation. As the Court explained, “ [i]n addi­
tion to the racial and ethnic composition of a school’s stu­
dent body, other factors, such as the racial and ethnic 
composition o f faculty and sta ff and the community and 
administration attitudes toward the school, must be taken 
into consideration.’’'' Keyes v. School District No. 1, 413 U.S. 
189, 196 (1973) (emphasis added). The Court in Keyes recog­
nized the interrelationship of the various “Green factors” in 
perpetuating the unconstitutional racial identification of 
schools: “the use o f  mobile classrooms, the drafting o f  stu­
dent transfer policies, the transportation o f students, and the 
assignment o f  faculty and staff, on racially identifiable bases, 
have the clear effect o f  earmarking schools according to their 
racial composition.” Id. at 201-02 (emphasis added). On 
remand, the school board in Denver District No. 1 thus bore 
the burden of showing that school board actions affecting 
various aspects of the school system, “considered together,” 
were “ not factors in causing the existing condition of segre­
gation in these schools. Id. at 214 (emphasis added).

Similarly, in Dayton, the school board had failed to rem­
edy the segregated school system by allowing the interplay of 
various facets of the district—including faculty assignment, 
attendance zones, school construction and grade structure— 
to perpetuate the racial identity of the schools. See Dayton 
Bd. o f  Educ. v. Brinkman (.Dayton II), 443 U.S. 526 (1979). 
This Court placed particular emphasis on the Dayton school 
board’s failure to integrate faculty and staff: the district 
court had erroneously “ ignored . . .  the significance of pur­
poseful segregation in faculty assignments in establishing the 
existence of a dual school system.” Id. at 536 (citation omit­
ted). Explaining that such “ purposeful segregation of faculty 
by race was inextricably tied to racially motivated student 
assignment practices,” this Court remained unwilling to



12

“ 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.” Id. at 536 & n.9 
(emphasis in original). See also Columbus Bd. o f  Educ. v. 
Penick, supra, 443 U.S. at 467 (1979) (“ [t]he practice of 
assigning black teachers and administrators only or in large 
majority to black schools . . . served as discriminatory, 
system-wide racial identification of schools” ).

This Court’s decisions have thus consistently required that 
the system—and not isolated, discrete parts—be rid of the 
vestiges of de jure segregation and its perpetuation. Nothing 
in the Court’s decision in Spangler suggests or should allow a 
different result. See Pasadena Bd. o f Educ. v. Spangler, 427 
U.S. 424 (1976). There, this Court considered whether a dis­
trict court properly refused to modify a desegregation decree 
which provided that, in perpetuity, no Pasadena school could 
have “ a majority of any minority” students; this Court con­
cluded that the district court “ exceeded its authority” by 
“ enforcing its order so as to require annual readjustment of 
attendance zones.” Id. at 432, 435. That decision, however, 
did not bar the district court from continuing to provide 
appropriate and practicable remedies necessary to complete 
the constitutionally mandated transition to a unitary system. 
Indeed, to the extent this Court even considered the issue, it 
observed that “ an injunction often requires continuing super­
vision by the issuing court and always a continuing willing­
ness to apply its powers and processes on behalf of the party 
who obtained equitable relief.” Id. at 437 (quotation omit­
ted).

3. This Court’s decisions are in full accord with the 
empirical findings of educators and social scientists.

Rejecting the “ view that schools are relatively static con­
structs of discrete variables,” education specialists have gen­
erally recognized that schools are “ dynamic social systems 
made up of interrelated factors.” S. Purkey and M. Smith, 
“ Effective Schools—A Review,” 83(4) Elementary School 
Journal 440 (1983). See also A. Bryk, V. Lee and J. Smith, 
“ High School Organization and its Effects on Teachers and



13

Students,” in Choice and Control in American Education, 
Vol. I (W.H. Clune and J.P. White, eds.) 139 (1990). Thus, 
effective desegregation has required a system-oriented, rather 
than incremental, approach. As one educator has observed:

Too often schools seem to focus on only one goal or 
strategy to achieve effective desegregation. It seems 
important to stress the need to develop comprehensive 
plans and strategies. Generally speaking, the attainment 
of one goal will enhance the possibilities of achieving 
another.

W.D. Hawley, “ Equity and Quality in Education: Character­
istics of Effective Desegregated Schools,” in Effective School 
Desegregation 298-99 (W.D. Hawley, ed.) (1981).

Studies have consistently shown that student assignments 
alone do not eliminate the racial identity of schools, and that 
effective (or ineffective) desegregation results from the inter­
play of such student assignments with other factors. See, 
e.g., G. Forehand and M. Rogasta, “A Handbook for Inte­
grated Schooling,” U.S. Dept, of Health, Education and 
Welfare 11-12 (1976) (desegregation is a multi-dimensional 
process affected by the various facets of the system). See also 
Sheehan, “A Study of Attitude Changes in Desegregated 
Intermediate Schools,” 53 Sociology o f  Education 51-59 
(1980); R. Scott and J. McPartland, “ Desegregation as 
National Policy: Correlates of Racial Attitudes,” 19 Amer. 
Educ. Research J. 397-414 (1984); Hughes, Gordon and Hill­
man, Desegregating America’s Schools (1980) (noting various 
measures of inequality within schools that must be reviewed 
to develop an effective desegregation plan).

Among other things, educators and social scientists alike 
have concluded that faculty and staff integration are essential 
components of effective school desegregation. After studying 
school districts in various cities, the United States Commis­
sion for Civil Rights concluded in 1967 that the maintenance 
of faculty and staff segregation perpetuates schools’ racial 
identifiability. U.S. Commission on Civil Rights, Racial Iso­
lation in the Public Schools 61 (1967) (“ [t]he racial identity 
of Southern schools is maintained in a variety of ways”



14

including “ continued segregation of teaching staff” ).* A 
1976 report prepared by the Education Testing Service for the 
Department of Health, Education and Welfare similarly con­
sidered the inclusion of racial minorities on faculty and 
administrative staffs to be “ perhaps . . .  our most important 
recommendation.” See G. Forehand and M. Ragosta, “A 
Handbook for Integrated Schooling,” supra, at 11-12. See 
also W.D. Hawley, et al., Assessment o f Current Knowledge 
About the Effectiveness o f  School Desegregation Strategies, 
Vanderbilt University Study (Vol. I) 86 (1981).

B. Incremental findings of unitary status would frustrate the 
transition to unitary school systems mandated by Brown 
and all subsequent decisions of this Court.

1. Incremental findings of unitary status would allow 
vestiges of de jure segregation to survive the termina­
tion of court jurisdiction in a school district.

Because incremental reviews of unitary status focus only on 
whether isolated discriminatory practices have been elimi­
nated from a particular facet of the school system during 
some period of time, such incremental inquiries by definition 
disregard those vestiges of de jure segregation-including, in 
particular, the racial identification of schools—that result 
from the interrelated effects of the various forms of discrimi­
nation in the school system. Where such incremental findings

* The Civil Rights Commission later reiterated that “ [ajdequate 
minority representation on the school staff is critical to integrated educa­
tion .” Fulfilling the Letter and Spirit o f  the Law: Desegregation o f  the 
Nation’s Public Schools 122 (1976). See also Tauber, “ Housing, Schools, 
and Incremental Segregative Effects,”  441 Annals o f  the American Academy 
o f  Political and Social Science 157-67 (1979) (manipulation of student assign­
ment process, “ combined with segregative assignment of teachers, have com­
bined to cause, enhance, and maintain racial identifiability of schools . . .  in 
Milwaukee” ); G. Orfield, Must We Bus? Segregated Schools and National 
Policy 369 (1978) (in Cleveland, “ [t]he racial identity of the schools was rein­
forced by intense faculty segregation” ); Billingsley, et al., “ School Segrega­
tion and Residential Segregation: A Social Science Statement,” in School 
Desegregation: Past, Present, and Future 235-36 (W.G. Stephan & J.R. 
Feagin, eds.) (1980).



15

are permitted, school boards can sequentially demonstrate 
that particular discriminatory practices affecting particular 
facets of the school system have been eliminated, while ves­
tiges of de jure segregation—particularly the racial identifica­
tion of schools—continue to operate. If particular 
discriminatory practices are considered incrementally and in 
isolation, the sum of the parts of the system will be less than 
the constitutionally mandated whole—a school system 
cleansed of the vestiges of de jure segregation.

This means, in turn, that after a particular facet of the 
school system would be “ carved out” from further judicial 
review based on the implementation of particular non- 
discriminatory practices, vestiges of de jure segregation could 
continue to operate so that even those non-discriminatory 
practices could soon be rendered ineffective. This is precisely 
what this Court has always sought to avoid, as this Court has 
recognized that the continuing vestiges of prior discrimination 
in such areas as faculty assignments and funding can render 
even non-discriminatory student assignment policies inade­
quate to remedy violations of the Fourteenth Amendment. 
Green, supra, 431 U.S. at 439-42. See also Rogers v. Paul, 
supra, 398 U.S. at 200 (segregated faculty can “ render[ ] 
inadequate an otherwise constitutional pupil desegregation 
plan” ); United States v. Montgomery Bd. o f Educ., supra, 
395 U.S. at 231.

At the same time, if particular facets of the school system 
were to be carved out from further judicial consideration, a 
school board could presumably become free to take actions 
in those discrete areas that actually have the effect of imped­
ing the transition to a unitary system—so long as these 
actions do not otherwise constitute new violations of the 
Fourteenth Amendment. Cf. Dowell, 111 S. Ct. at 638 (if the 
Oklahoma City School board achieved unitary status in the 
city school system, further school board actions would be 
judged under “ appropriate equal protection principles” ). 
Such a result would plainly impede the constitutionally man­
dated transition to a system in which vestiges of de jure seg­
regation have been eliminated to the extent practicable. It 
would also disregard that “ [p]art of the affirmative duty 
imposed by [this Court’s] cases, as . . . decided in Wright v.



16

Council o f  Emporia, 407 U.S. 451 (1972), is the obligation 
not to take any action that would impede the process of dis­
establishing the dual system and its effects.” See Dayton, 
supra, 443 U.S. at 538. See also United States v. Scotland 
Neck Bd. ofE duc., 407 U.S. 484 (1972); Columbus, 443 U.S. 
at 460; Swann, 402 U.S. at 20-21.

Ultimately, this would mean that at whatever point in time 
a school board will have finally succeeded in obtaining 
sequential “ unitary” findings for all facets of the school sys­
tem, remaining vestiges of de jure segregation may already 
have operated to re-establish segregation in those areas where 
incremental unitary findings have been made. At this point, it 
would become virtually impossible to conduct any meaningful 
inquiry as to whether the school board had in fact taken all 
practicable steps to eliminate all vestiges of prior 
discrimination—the very inquiry Dowell prescribed.

2. Incremental unitary findings would preclude future 
use of programs that implicate several facets of the 
school system.

In many cases, incremental findings of unitary status 
would also preclude the use of remedies, such as optional 
transfer programs and magnet schools, that would otherwise 
be the most practicable means of completing the transition to 
a school system in which the vestiges of de jure segregation 
have been eliminated.

Remedies such as optional majority-to-minority transfer 
programs have “ long been recognized as a useful part of 
every desegregation plan.” See Swann, 402 U.S. at 26. Such 
plans allow members of the majority racial group of a partic­
ular school to transfer to other schools where they will be in 
the minority. While this Court has explained that transfer 
provisions are “ an indispensable remedy for those students 
willing to transfer . . .  in order to lessen the impact on them 
of the state-imposed stigma of segregation,” Swann, 404 
U.S. at 26, such optional transfer plans—that require adjust­
ment of student assignments, faculty assignments, transporta­
tion, or the allocation of school resources—would be



17

precluded in any district where any of those implicated facets 
of the school system had already been declared “ unitary” .

A similar result would follow in the case of magnet school 
programs, which draw students with particular qualifications 
from throughout the district to a particular school. See Clark 
v. Board o f Educ., 705 F.2d 265, 272 (8th Cir. 1983) (direct­
ing establishment of magnet schools to promote “ equal edu­
cational opportunity” ); Adams v. United States, 620 F.2d 
1277, 1296-97 (8th Cir. 1980) (endorsing magnet schools as a 
“ techniquef ] to ensure students . . . will receive equal edu­
cational opportunities” ). Implementation of magnet school 
plans plainly implicates the allocation of school resources, 
student assignments, faculty assignments, and, in some cases, 
transportation. The use of such magnet school remedies, 
however, would be precluded where any of those facets of 
the school system had already been “carved out” from fur­
ther judicial consideration.*

3. Incremental review7 of unitary status would give rise 
to repeated and protracted litigation.

In a regime allowing incremental “ unitary” findings, dis­
trict courts could remove from further judicial consideration 
particular facets of the educational system, notwithstanding 
that the school system has not yet been brought into compli­
ance with the Constitution. It is not difficult to contemplate 
the annual or even more frequent litigation that would ensue, 
as school boards could continually seek to “ carve out” more 
and more components of the educational process.

* Ironically, the circumstances in DeKalb County are a plain illustra­
tion of this result. If, indeed, it was appropriate to “ carve out” the area of 
student assignments from further district court consideration, then presum­
ably such an incremental finding could have been made as early as 1972— 
after the school board had purportedly implemented a racially 
non-discriminatory student assignment policy for several years. Such an 
incremental finding of “ unitary” status, however, would have precluded the 
implementation in subsequent years of the very majority-to-minority transfer 
programs and magnet school programs that the district court considered 
necessary to effectuate the transition to a school system rid of the vestiges of 
de jure segregation. See J.A. 216 (majority-to-minority transfer program 
adopted in 1972); J.A. 217 (magnet school program adopted in 1980’s).



18

Without having to establish that the racial identity of 
schools, or any other vestiges of the de jure system, had been 
eliminated, a school board could ask a district court to find 
that practicable steps had been taken to eliminate discrimina­
tion in some discrete area. School boards could be expected 
subsequently to seek one such “ carve out” after another, as 
such relief would self-evidently provide a means to limit the 
school board’s obligations in the transition to a unitary sys­
tem. At the same time, individual litigations over the alleged 
“ unitary” status of each facet of a school system could 
require protracted factual inquiry in each case—including 
expert testimony, or documentary and other evidence con­
cerning developments in the school district.

There is, moreover, no reason to believe that school boards 
would seek only to “ carve out” the six general facets of 
school systems identified in Green. Rather, motions could be 
made for “ unitary” findings with respect to particular por­
tions of a school district, particular schools, or even particu­
lar facets of a single school. Indeed, no limit could easily be 
placed on the extent to which motions for incremental “ uni­
tary” findings might be narrowly focused.

These scenarios by no means represent mere hypothetical 
speculation. In the First Circuit, where incremental findings 
of unitary status are permitted, see Morgan v. Nucci, 831 
F.2d 313 (1st Cir. 1987), the Boston school board has already 
sought such incremental unitary findings for small fragments 
of the system, including discrete groups within the system’s 
overall teaching staff. See Morgan v. Burke, 926 F.2d 86, 92 
(1st Cir. 1991) (school board sought to “ fragment” progress 
in desegregation into “ very small parts” and proposed subdi­
viding faculty and staff into blacks and other minorities, a 
proposal considered similar to subdividing student assign­
ments on a school-by-school basis).

C. The vestiges of de jure segregation in DeKalb County 
have had interrelated segregative effects, and cannot be 
considered in isolation.

The interrelated effects of the vestiges of discrimination in 
various aspects of a school system are vividly illustrated in



19

this case. Here, the DCSS argues that it implemented a pur­
portedly neutral student assignment plan for some period 
beginning in 1969.* Yet even during this period—as before 
and at all times thereafter—schools in DeKalb County 
retained their racial identity as a result of school board action 
in such areas as faculty and staff assignments. Indeed, it is 
undisputed that faculty and staff in DeKalb County have 
never been desegregated. This meant that the implementation 
of the DCSS’s neighborhood student attendance plan, even 
from 1969 to 1972, in fact resulted in black students being 
assigned predominantly to schools where the black faculty 
and staff were located—thereby rendering ineffective on its 
face a desegregation plan that under other circumstances 
might have served to limit racial identifiability.

The DCSS’s own explanation for the continued segregation 
of its faculty and staff illustrates the interrelated effects of 
the vestiges of discrimination. The DCSS has attributed fac­
ulty and staff segregation largely to faculty and staff prefer­
ences to work in schools located near their residences. See 
J.A. 76; J.A. 230. This explanation makes plain that school 
construction, abandonment and expansion policies—viewed 
by the DCSS and the district court as generally falling within 
the purview of student assignment policies—have a significant 
effect on determining the effectiveness of steps in the area of 
faculty assignment.

In this case, moreover, the DCSS took actions during the 
life of the desegregation decree that served to exacerbate the 
interrelated effects of these perpetuated vestiges. The DCSS 
built and expanded existing schools and drew attendance 
zones in a manner that guaranteed racial homogeneity, both 
of students and faculty, rather than racial integration. Thus 
in 1976 the district court had found that the DCSS had 
drawn attendance zones in such a way as to increase segrega­
tion within the system. J.A. 89-92. The following year, in the 
context of considering an expansion of the Flat Shoals ele­
mentary school, the district court specifically advised the 
DCSS to consider “ alternatives to further construction, such

* The district court, however, was itself unable to determine how long 
even these steps in the area of student assignments had been purportedly 
effective. J.A. 214.



20

as alterations in attendance zones, and, possibly, some form 
of busing, in order to remedy the overcrowding which is 
bound to occur and to promote desegregation in the county 
schools.” J.A. 122. Moreover, “ in considering additions to 
other predominantly black schools in the county,” the DCSS 
was “ admonished to keep this in mind.” The district court’s 
admonition has gone unheeded.

The racial identities of schools were locked in place by the 
DCSS’s continued resistance to effective minority transfer 
and magnet schools programs. The DCSS consistently placed 
arbitrary restraints on the number of black students able to 
transfer to white schools, notwithstanding this Court’s 
instruction in Swann that in order for a minority transfer 
program to be effective, “ space must be made available in 
the school in which [the transferring student] desires to 
move.” Swann, 402 U.S. at 26-27. Thus, in 1976, the district 
court found that “ the regulations imposed under the M-to-M 
program perpetuate the vestiges of the dual system.” J.A. 83. 
In 1979, the district court once again was forced to preclude 
modifications sought by the DCSS to restrict the numbers of 
black students able to transfer to white schools. J.A. 138-50.

The interrelated effects of the vestiges of discrimination in 
the various facets of school operations collectively deter­
mined, and have perpetuated, the racial identities of the 
schools in DeKalb County. While vestiges of the de jure sys­
tem remain, various facets of the school system have been 
subject to their interrelated effects.

II
THE DEKALB COUNTY SCHOOL SYSTEM REMAINS 
UNDER AN AFFIRMATIVE DUTY TO REMEDY, TO 
THE EXTENT PRACTICABLE, CURRENT RACIAL 

IDENTDIABELITY OF THE SYSTEM’S SCHOOLS

Since 1954, the schools in DeKalb County have retained 
their racial identity. Notwithstanding the adoption by the 
DCSS of certain purportedly non-discriminatory practices in 
the area of student assignment for some period beginning in 
1969, it is not disputed that the DCSS never desegregated fac-



21

ulty and staff and always assigned black students dispropor­
tionately to those schools in which black faculty and staff 
could be found. Moreover, since 1969, the DCSS’s school 
construction and abandonment policies have served primarily 
to exacerbate the racial identifiability of the schools.

Notwithstanding the continuous racial identifiability of the 
schools, the DCSS now claims it should be released from 
further court supervision in the area of student assignments— 
not because it has satisfied its affirmative duty to complete 
the transition to a school system in which the vestiges of de 
jure segregation have been eliminated, but because demo­
graphic changes during the life of the desegregation decree 
purportedly contributed to existing segregated student assign­
ments in the district. Given the DCSS’s failure ever to take 
the steps necessary to eliminate the blatant racial identifiabil­
ity of the county schools, however, there can be little doubt 
that the DCSS itself influenced relevant demographic patterns 
and their reinforcement of existing racial identification. This 
Court has long recognized the causal relationship between the 
perpetuation of racial identity of schools and demographic 
patterns that serve to reinforce such racial identity. And, in 
fact, while the demographic changes occurred, the DeKalb 
County school board took steps that served to reinforce and 
even exacerbate segregative effects of these patterns. The 
DCSS accordingly remains under an affirmative duty to take 
practicable steps to remedy the existing racial identification 
that now exists in the district’s schools—including in the area 
of student assignment.

It remains true that the scope of the affirmative duty to 
effectuate the transition to a “ unitary” school system is 
defined by the scope of the constitutional violation. Even in a 
case where a school board is no longer obligated to imple­
ment affirmative remedial steps, however, the school board, 
when it does act, remains under a continuing obligation to 
take no action that would hinder the constitutionally man­
dated transition to a school system in compliance with the 
Fourteenth Amendment.



22

A. The demographic changes that have occurred in DeKalb 
County cannot shield the school authorities from respon­
sibility for remedying existing racial identity in the school 
system—including in the area of student assignments.

It is well settled that when a school district has operated a 
de jure segregated system, it bears the burden of demonstrat­
ing that the existence of racially identifiable schools is not the 
result of school board action. See Dayton II, 443 U.S. at 537 
(“ systemwide nature of the violation furnished prima facie 
proof that current segregation . . . was caused at least in 
part by prior intentionally segregative official acts” ); Colum­
bus, 443 U.S. at 465 n.13 (burden on the school board was to 
prove that its conduct was not a “ contributing cause” of 
racial identifiability of schools); Keyes, 413 U.S. at 211 & 
n.17 (burden is on the school board to prove that its conduct 
did not “ create or contribute to” the racial identifiability of 
schools, or that racially identifiable schools are “ in no way 
the result of” school board action); Swann, 402 U.S. at 26 
(“ [t]he court should scrutinize [predominantly one-race] 
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 discriminatory action on their part” ).

Thus the Courts of Appeals, including the Court below, 
have consistently held that a school system that has not 
removed all vestiges of segregation cannot avoid the constitu­
tional obligation to do so on the basis of claims that ongoing 
demographic changes have made the process more difficult. 
See Vaughns v. Board o f Educ., 758 F.2d 983, 988 (4th Cir. 
1985); Davis v. East Baton Rouge Parish School Bd., 721 
F.2d 1425, 1435 (5th Cir. 1983); Lee v. Macon County Bd. o f  
Educ., 616 F.2d 805, 810 (5th Cir. 1980). This doctrine 
reflects the principle that school authorities cannot avoid the 
continuing duty to desegregate a school system based on the 
consequences of their failure, to date, effectively to dismantle 
all features or vestiges of the dual system. These holdings are 
supported by the decisions of this Court in Columbus and 
Swann and are premised on the clear recognition by this 
Court that patterns of segregated schooling influence housing 
choices and cause or contribute to residential segre-



23

gation—with the result that the patterns of school segregation 
are compounded and exacerbated.*

In this case, it would be difficult for the DCSS to maintain 
its burden of demonstrating that existing racial segregation is 
not the result of school board action, given the district’s pre­
viously described segregative actions. It is an insuperable bur­
den in light of the responsibility of school authorities for 
influencing demographic patterns that have reinforced the 
racial identity of the schools, and the actions of the school 
authorities that actually magnified the segregative effects of 
those demographic changes.

It should come as no surprise that the demographic 
changes in DeKalb County occurred in racially identifiable 
patterns reinforcing the racial identifiability of the DCSS 
schools. This Court has long recognized that “ people gravi­
tate toward school facilities,” Swann, 402 U.S. at 20, and 
that racially identifiable schools influence the gravitational 
pull. Indeed, the DCSS’s claim that it should be released 
from its affirmative duty to dismantle the dual system 
because of demographic changes is certainly not novel, and 
similar claims have already been rejected by this and lower 
courts. In Columbus, for example, school authorities con­
tended that “ because many of the involved schools were in 
areas that had become predominately black residential areas 
by the time of trial, the racial separation in the schools would 
have occurred even without the unlawful conduct of [the 
school board].” Columbus, 443 U.S. at 465 n.13. That

* This rule is not one of absolute liability without regard to the facts 
and circumstances of a particular case, however, as the opinion of the Court 
below might be read. This C ourt’s school desegregation precedent establishes 
a framework according to which a previously de jure school district may seek 
to demonstrate that segregation in its schools or programs is not the result of 
the dual system, its failure to eradicate that system and its effects, or any 
actions it has taken that have impeded that process. A school board that has 
effectively implemented remedies to desegregate all aspects of a school sys­
tem and, therefore, has removed the racial identifiability and stigma that 
influence housing choice and residential segregation, may be in a position to 
demonstrate that subsequently occurring racial imbalance is not the product 
of any failure to dismantle de jure schooling. Whatever the circumstances in 
which a district could carry this burden, they are not presented by the DCSS 
in this case.



24

argument—then as it should be now—was easily dispatched 
by this Court: “ the phenomena described by [the school 
board] seems only to confirm, not disprove . . . that school 
segregation is a contributing cause of housing segregation.” 
Id. (emphasis added). This Court found persuasive the dis­
trict court’s findings that notwithstanding adoption of an 
ostensibly racially neutral attendance policy, the school 
board’s failure to dismantle the dual school system perpetu­
ated racially identifiable residential patterns. See Penick v. 
Columbus Bd. o f Educ., 429 F. Supp. 229, 259 (S.D. Ohio 
1977).

The DCSS obviously did not cause people to move into 
DeKalb County. But as explained in Keyes, the perpetuation 
of identifiably black or white faculty in schools

[has] the clear effect of earmarking schools according to 
their racial composition, and this, in turn, together with 
the elements of student assignment and school construc­
tion, may have a profound reciprocal effect on the racial 
composition of residential neighborhoods within a 
metropolitan area, thereby causing further racial concen­
tration within the schools.

—Keyes, 413 U.S. at 202.
By failing to eliminate the racial identifiability of its schools, 
the DCSS cast the die for the occurrence of demographic 
changes that would reinforce the racial identifiability of the 
schools.

Moreover, once those demographic changes began and the 
need arose for increased school capacity to accommodate the 
increased student population, the DCSS affirmatively exacer­
bated the effects of the demographic changes on the school 
system through its policy of expansion. Rather than build 
schools or expand existing schools in areas that promised a 
racially diverse student body, the DCSS instead built and 
expanded schools in the peripheral parts of DeKalb County 
that guaranteed racial homogeneity. Together with the neigh­
borhood student attendance plan and restricted minority 
transfer programs, the new and expanded schools locked the 
system into a separation of the races. Black schools were



25

located in areas within DeKalb County that assured their 
racial identifiability would remain intact.

In Swann, this Court recognized that within a school sys­
tem that had yet to achieve unitary status, the location of 
schools can have a powerful effect on residential patterns, 
particularly when the students are assigned to schools on a 
neighborhood zoning basis:

The location of schools may thus influence the patterns 
of residential development of a metropolitan area and 
have important impact on composition of inner-city 
neighborhoods.

In the past, choices in this respect have been used as a 
potent weapon for creating or maintaining a state- 
segregated school system. In addition to the classic pat­
tern 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 accompanied by 
building new schools in the areas of white suburban 
expansion farthest from Negro population centers in 
order to maintain the separation of the races with mini­
mum departure from the formal principles of ‘neighbor­
hood zoning.’ Such a policy does more than simply 
influence the short-run composition of the student body 
of a new school. It may well promote segregated resi­
dential patterns which, when combined with ‘neighbor­
hood zoning,3 further lock the school system into the 
mold o f separation o f the races.

—Swann, 402 U.S. at 20-21 
(emphasis added).

Studies by social scientists have confirmed that racially 
identifiable schools influence demographic patterns so as to 
reinforce the schools’ racial identifiability. See, e.g., Bil­
lingsley, et al., “ School Segregation and Residential Segrega­
tion: A Social Science Statement,” in School Desegregation: 
Past, Present, and Future 240 (W.G. Stephan & J.R. Feagin, 
eds.) (1980). Indeed, as thirty-eight social scientists agreed in



26

a collective statement, “ [a]ll discriminatory acts by school 
authorities that contribute to the racial identifiability of 
schools promote racially identifiable neighborhoods.” Id. at 
236.

Moreover, a school board can trigger or influence a 
racially identifiable demographic trend in neighborhoods by 
“ signalling” that the racial identity of an existing school is to 
change, or, in the case of a new school, what its racial iden­
tity will be. This is particularly so in communities undergoing 
substantial demographic changes, because “ the changing 
racial composition of a school’s pupils and staff serves as a 
signal to the public—realtors, homeseekers, residents, etc.— 
that school authorities expect the school to become all 
black.” Tauber, Demographic Perspectives on Housing and 
School Segregation, 21 Wayne L. Rev. 833, 843 (1975). See 
also “ School Segregation and Residential Segregation: A 
Social Science Statement,” supra, at 235 (“ [c]hange in the 
racial identifiability of a school can influence the pace of 
change in racial composition in a ‘changing’ residential 
area” ).

A significant, and perhaps most obvious, reason for this 
relationship between racially identifiable schools and demo­
graphic patterns is that parents perceive that black schools 
are generally inferior to white schools. See, e.g., Tauber, 
Demographic Perspectives on Housing and School Segrega­
tion, supra, 21 Wayne L. Rev. at 843 (“ if predominantly 
black schools were not perceived as inferior schools, then 
school attendance zones would play only a minor role in resi­
dential choices and in the behavior of real estate busi­
nesses” ).

Swann, Keyes and Columbus teach that when assessing the 
relationship between racially identifiable demographic trends 
and school board action, the district court must consider the 
acts (and omissions) of the school board before and during 
the time period in which those trends occurred. An analysis 
which considers only the present overlooks the vital question: 
whether past actions have contributed to present harm. This 
“ segregative snowball” effect, Penick v. Columbus Bd. o f  
Educ., 429 F. Supp. 229, 259 (S.D. Ohio 1977), has been rec­
ognized by numerous lower courts and taken into account



27

when determining the appropriate scope of relief required to 
effectively desegregate a formerly de jure school system.*

Not surprisingly, racially identifiable demographic trends 
are less likely in communities which have undergone success­
ful school desegregation. “ School desegregation, if effectively 
implemented, removes the racial identifiability of schools, 
and hence removes one of the restrictions on housing choice 
by white and black families.” Tauber, “ School Desegregation 
and Racial Housing Patterns,” in New Directions fo r  Testing 
and Measurement: Impact o f Desegregation 63 (D. Monti, 
ed.) (1982). “ [S]chool desegregation has helped ease the tra­
ditional patterns of rigid residential segregation. . . . Once 
the racial character of a neighborhood can no longer easily 
be stamped by an identification of its schools as black or 
white, racial barriers in housing begin to lower.” Taylor, 
Brown, Equal Protection and the Isolation o f the Poor, 95 
Yale L.J. 1700, 1711 (1986) (citing D. Pearce, Breaking 
Down Barriers: New Evidence on the Impact o f Metropolitan 
School Desegregation on Housing Patterns (1980)).

Here, by contrast, the district court’s reliance on demo­
graphic changes to relieve the DCSS of its duty to desegre­
gate the schools in DeKalb County simply ignored how 
demographic changes responded to, and thus reinforced, 
racially identifiable schools. Had the DCSS effectively acted 
to remedy the vestiges of de jure segregation, the DCSS 
would not today retain its dual characteristics.

The district court’s analysis of the DCSS’s responsibility 
for the current racial identifiability of the schools in DeKalb 
County overlooked the critical analysis: whether those ves-

* See, e.g. , United States v. Yonkers Bd. ofEduc., 624 F. Supp, 1276 
(S.D.N.Y. 1985), a ff’d, 837 F.2d 1181 (2d Cir. 1987), cert, denied, 486 U.S. 
1055 (1988); United States v. Board o f School Comm’rs, 573 F.2d 400, 408- 
09 n.20 (7th Cir. 1978); NAACP  v. Lansing Bd. o fE duc., 559 F.2d 1042, 
1049 n.9 (6th Cir.), cert, denied, 434 U.S. 997 (1977); Evans v. Buchanan, 
393 F. Supp. 428, 436-37 (D. Del.), a ff’d, 423 U.S. 963 (1975); Hart v. Com­
munity School Bd., 383 F. Supp. 699, 706 (E.D.N.Y. 1974), a ff’d, 512 F.2d 
37 (2d Cir. 1975); Davis v. School District, 309 F. Supp. 734, 742 (E.D. 
Mich. 1970), a ff’d, 443 F.2d 573 (6th Cir.), cert, denied, 404 U.S. 913 (1971). 
See also Adams v. United States, 620 F.2d 1277, 1291 (8th Cir.) (public per­
ception of racial identity of a school is a powerful factor in shaping neigh­
borhood residential patterns), cert, denied, 449 U.S. 826 (1980).



28

tiges of the de jure system, such as segregated faculty and 
staff, which have perpetuated the racial identities of the 
schools, contributed to the racially segregated character of 
demographic changes. The burden properly belonged on the 
DCSS to demonstrate that such segregative demographic 
changes were not influenced by racial identity of the schools 
that school authorities had themselves caused or perpetuated. 
Moreover, the district court was clearly erroneous in conclud­
ing that the DCSS’s actions in response to the demographic 
changes had achieved maximum practical desegregation in 
light of the DCSS’s record with regard to the location of new 
schools, the neighborhood student attendance plan, and the 
restricted minority transfer programs—steps that exacerbated 
the segregative effects of the demographic changes.

Because the current segregation of student assignments can 
only properly be considered a vestige of de jure segregation 
in DeKalb County, the DCSS continues to bear the duty to 
implement affirmative steps to remedy, to the extent practica­
ble, this racial identifiability. Consideration of remedies, of 
course, must be based upon the current circumstances in the 
school system rather than those existing at an earlier point in 
the desegregation process. This case should be remanded to 
the district court so that the school board itself can imple­
ment necessary remedies. In the event of default by the 
school board in that duty, the district court will be in the best 
position to fashion an appropriate remedy.

B. Where a school board that has not completed the transi­
tion to a unitary system is not obligated to implement fur­
ther affirmative remedial steps, school authorities, when 
they do act, remain obligated to take no action that 
would impede completion of the transition.

The continuing obligation of the DCSS to achieve the 
transition to a unitary system is fully consistent with the 
Fourteenth Amendment principle that a school board’s 
affirmative duty in a given district is defined by the scope of 
the constitutional violation. See, e.g., Swann, 402 U.S. at 16; 
Milliken v. Bradley (Milliken II), 433 U.S. 267, 282 (1977). 
This Court has, of course, long recognized that the vestiges



29

of de jure segregation can be manifest or perpetuated 
through various means that are thus embodied within the vio­
lation of the Fourteenth Amendment. See Point I, supra.

Moreover, as this Court reiterated in Dayton II, the obliga­
tion to effectuate the transition to a unitary system includes 
“ the obligation not to take any action that would impede the 
process of disestablishing the dual system and its effects.” 
Dayton, 443 U.S. at 538. See also Wright v. Council o f  
Emporia, 407 U.S. 451 (1972); United States v. Scotland 
Neck City Bd. o f  Educ., 407 U.S. 484 (1972). This duty to 
“ do no harm” applies without regard to the purported moti­
vation for particular school board actions. During the transi­
tion to a school system in compliance with the Constitution, 
“ [t]he existence of a permissible purpose cannot sustain 
[school board] action that has an impermissible effect” of 
impeding “ the effectiveness of the remedy ordered to disman­
tle the dual system.” Wright, 407 U.S. at 462, 470. Thus, in 
both Wright and Scotland Neck, school authorities could not 
erect new student assignment boundary lines where the effect 
of such new boundaries would have been to undermine pro­
gress towards school desegregation in the districts. See 
Wright, 407 U.S. at 460 (proposed action could be judged 
only according to whether “ it hinders or furthers the process 
of school desegregation” ); Scotland Neck, 407 U.S. at 489.

This duty not to impede the transition to a unitary system 
remains until the transition is complete. For example, even if 
a school district has been implementing effective steps toward 
the transition to a unitary system, and therefore may be 
under no obligation to initiate further restructuring of the 
school system in response to racial imbalances resulting from 
demographic change, it nevertheless is obligated to take no 
action that will impede or frustrate the transition. See also 
p. 23n., supra. Accordingly, when such a district does act— 
to adjust attendance zones, to construct or abandon schools, 
to assign faculty, to implement pupil transfer programs—it is 
obligated to act in a manner that does not exacerbate segre­
gation within the district or “ serve to perpetuate or reestab­
lish the dual system.” Swann, 402 U.S. at 21.

A school board that is not obligated to take further affirm­
ative remedial steps thus cannot permissibly take the type of



30

action proposed by the DCSS in this case—expansion of a 
high school in a section of the county with a predominantly 
white population, where the result will be to draw students to 
the school from currently less segregated schools and thereby 
increase the separation of the races in the district.

The affirmative duty to bring a school district into compli­
ance with the Constitution would be rendered meaningless if 
school authorities were free to take action during the period 
of transition that would hinder the process of school desegre­
gation or even promote separation of the races in the system.

The judgment of the Eleventh Circuit Court of Appeals 
should be affirmed.
June 21, 1991

CONCLUSION

Respectfully submitted,

Herbert M. Wachtell, /s / Norman Redlich________
Norman Redlich*
Stephen R. Neuwirth 
Jeffrey I. Lang 
Wachtell, Lipton, Rosen

Co-Chairman 
William H. Brown III,

Co-Chairman 
Norman Redlich, Trustee 
Barbara R. Arnwine 
Thomas J. Henderson 
Paul Holtzman 
Lawyers’ Committee for

& Katz
299 Park Avenue
New York, New York 10171
(212) 371-9200

Civil Rights Under Law 
1400 Eye Street, NW 
Washington, D.C. 20005 
(202) 371-1212

Burke Marshall 
127 Wah Street
New Haven, Connecticut 06520
(203) 432-4953
Attorneys fo r  Amicus Curiae

* Counsel o f Record



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