Columbus Bd. Of Educ. v. Penick, 443 U.S. 449 (1979)

Author: Justice Rehnquist

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Columbus Bd. Of Educ. v. Penick, 443 U.S. 449 (1979)

MR. JUSTICE REHNQUIST, with whom MR. JUSTICE POWELL joins, dissenting.

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

It is difficult to conceive of a more serious supplantation because, as this Court recognized in Brown v. Board of Education, 347 U.S. 483, 493 (1954) (Brown I), "education is perhaps the most important function of state and local governments"; indeed, it is "a vital national tradition." Dayton Board of Education v. Brinkman, 433 U.S. 406, 410 (1977) (Dayton I); see Milliken v. Bradley, 418 U.S. 717, 741-742 (1974); Wright v. Council of City of Emporia, 407 U.S. 451, 469 (1972). That "local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process," Milliken, supra at 741-742, does not, of course, place the school system beyond the authority of federal courts as guardians of federal constitutional rights. But the practical and historical importance of the tradition does require that the existence of violations of constitutional rights be carefully and clearly defined before a federal court invades the traditional ambit of local control, and that the subsequent displacement of local authority be limited to that necessary to correct the identified violations.

It is for this reason that the case for displacement of the local authorities by a federal court in a school desegregation case must be satisfactorily established by factual proof and justified by a reasoned statement of legal principles.

Dayton I, supra at 410.

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

Today the Court affirms the Court of Appeals for the Sixth Circuit in this case and Dayton Board of Education v. Brinkman (Dayton II), post, p. 526, in opinions so Delphic that lower courts will be hard pressed to fathom their implications for school desegregation litigation. I can only offer two suggestions. The first is that the Court, possibly chastened by the complexity and emotion that accompanies school desegregation cases, wishes to relegate the determination of a violation of the Equal Protection Clause of the Fourteenth Amendment in any plan of pupil assignment, and the formulation of a remedy for its violation, to the judgment of a single district judge. That judgment should be subject to review under the "clearly erroneous" standard by the appropriate court of appeals, in much the same way that actions for an accounting between private partners in a retail shoe business or claimants in an equitable receivership of a failing commercial enterprise are handled. "Discriminatory purpose" and "systemwide violation" are to be treated as talismanic phrases which, once invoked, warrant only the most superficial scrutiny by appellate courts.

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

Yet, the only alternative reading of today’s opinions, i.e., a literal reading, is even more disquieting. Such a reading would require embracing a novel analytical approach to school segregation in systems without a history of statutorily mandated separation of the races -- an approach that would have dramatic consequences for urban school systems in this country. Perhaps the adjective "analytical" is out of place, since the Court’s opinions furnish only the most superficial methodology, a framework which, if it were to be adopted, ought to be examined in a far more thorough and critical manner than is done by the Court’s "lick and a promise" opinions today. Given the similar approaches employed by the Court in this case and Dayton II, this case suffices for stating what I think are the glaring deficiencies both in the Court’s new framework and in its decision to subject the Columbus school system to the District Court’s sweeping racial balance remedy.


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

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

[T]he District Judge on review of pre-1954 history found that the Columbus schools were de jure segregated in 1954, and, hence, the Board had a continuing constitutional duty to desegregate the Columbus schools. The pupil assignment figures for 1975-76 demonstrate the District Judge’s conclusion that this burden has not been carried. On this basis alone (if there were no other proofs), we believe we would be required to affirm the District Judge’s finding of present unconstitutional segregation.

583 F.2d 787, 800 (1978).

In Brinkman v. Gilligan, 583 F.2d 243, 256 (CA6 1978), also affirmed today, this post-1954 "affirmative duty" is characterized as a duty "to diffuse black and white students" throughout the system.

The Court in this case apparently endorses that view. For the Court finds that "[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment," ante at 459, and the mere fact that, at the time of suit, "most blacks were still going to black schools and most whites to white schools" establishes current effect. Ante at 461.

In order to fully comprehend the dramatic reorientation the Court’s opinion thus implies, and its lack of any principled basis, a brief historical review is necessary. In 1954, this Court announced Brown I and struck down on equal protection grounds laws requiring or permitting school assignment of children on the basis of race. See also Bolling v. Sharpe, 347 U.S. 497 (1954). The question of remedy was reserved for a new round of briefing, and the following Term this Court remanded to the District Courts in the five consolidated cases

to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.

Brown v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II).

The majority concedes that this case does not involve racial assignment of students mandated by state law; Ohio abandoned any "statutory requirement or authorization to operate segregated schools" by 1888. Ante at 455. Yet it was precisely this type of segregation -- segregation expressly mandated or permitted by state statute or constitution -- that was addressed by Brown I, and the mandate of the Brown cases was that "[a]ll provisions of federal, state, or local law requiring or permitting such discrimination must yield" to "the fundamental principle that racial discrimination in public education is unconstitutional." 349 U.S. at 298. The message of Brown II was simple and resonant because the violation was simple and pervasive.

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

The earliest post-Brown school cases in this Court only intimated that "a transition to a racially nondiscriminatory school system" required adoption of a policy of nondiscriminatory admission.{2} It was not until the 1967 Term that this Court indicated that school systems with a history of statutorily or constitutionally mandated separation of the races would have to do more than simply permit black students to attend white schools and vice versa. In that Term, the Court had before it "freedom of choice" plans put forward as desegregation remedies. The factual context of the lead case, Green v. County School Board, 391 U.S. 430 (1968), is a far cry from the complicated urban metropolitan system we confront today. The New Kent County school system consisted of two schools -- one black and one white -- with a total enrollment of 1,300 pupils. At the time of suit, a black student had never attended the white school or a white student the black school.

This Court found that the "freedom-of-choice" plan approved by the District Court for the desegregation of the New Kent County schools was inadequate. Noting that the

pattern of separate "white" and "Negro" schools in the New Kent County school system established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed,

the Court observed that Brown II charged

[s]chool boards such as the respondent then operating state-compelled dual systems . . . with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.

391 U.S. at 435, 437-438. In the three years following court approval of the "freedom of choice" plan in New Kent County, not a single white child had chosen to attend the historically black school, which continued to serve 85% of the county’s black schoolchildren. The Green Court concluded that a freedom of choice plan, in a school system such as this and in the absence of other efforts at desegregation, was not sufficient to provide the remedy mandated by Brown II. The Court suggested zoning, i.e., some variation of a neighborhood school policy, as a possible alternative remedy.{3}

That brings the history of school desegregation litigation in this Court to THE CHIEF JUSTICE s opinion in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), upon which the majority and respondents heavily rely.{4} Swann also addressed school systems with a history of statutorily or constitutionally mandated separation of the races; "[t]hat was what Brown v. Board of Education was all about." Id. at 6. Swann was an attempt to define "in more precise terms" the appropriate scope of the remedy in cases of that nature. Ibid. It simply did not attempt to articulate the manner by which courts were to determine the existence of a violation in school systems without a history of segregation imposed by statute or the state constitution.{5} Certainly school systems with such a history were charged by Brown II to "effectuate a transition to a racially nondiscriminatory school system." But Swann did not speak of the failure to conform to this duty as a "continuing violation." The specific references to an affirmative duty in Swann were to the duty of a school board found to have overseen a school system with state-imposed segregation to put forward a plan to remedy that situation. It was in this context that the Court observed that, upon

default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.

402 U.S. at 16.{6}

This understanding of the "affirmative duty" was acknowledged in the first case confronting a school system without a history of state-mandated racial assignment, Keyes v. School Dist No. 1, Denver, Colo., 413 U.S. 189 (1973). There the Court observed:

[W]e have held that, where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty "to effectuate a transition to a racially nondiscriminatory school system," Brown v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II), see also Green v. County School Board, 391 U.S. 430, 437-438 (196), that is, to eliminate from the public schools within their school system "all vestiges of state-imposed segregation." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971).

This is not a case, however, where a statutory dual system has ever existed.

Id. at 200-201 (footnote omitted). It was at this juncture that the Court articulated the proposition that has become associated with Keyes.

Nevertheless, where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system.

Id. at 201.

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

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

Id. at 203.{7} Indeed, Keyes did not discuss the complexion of the Denver school system in 1954, or in any other way intimate the analysis adopted by the Court today.{8} Rather, it emphasized that the relevance of past actions was determined by their causal relationship to current racially imbalanced conditions.

Even so brief a history of our school desegregation jurisprudence sheds light on more than one point. As a matter of history, case law, or logic, there is nothing to support the novel proposition that the primary inquiry in school desegregation cases involving systems without a history of statutorily mandated racial assignment is what happened in those systems before 1954. As a matter of history, 1954 makes no more sense as a benchmark -- indeed, it makes less sense -- than 1968, 1971, or 1973. Perhaps the latter year has the most to commend it, if one insists on a benchmark, because, in Keyes, this Court first confronted the problem of school segregation in the context of systems without a history of statutorily mandated separation of the races.

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

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

Causality plays a central role in Keyes, as it does in all equal protection analysis. T he Keyes Court held that, before the burden of production shifts to the school board, the plaintiffs must prove

that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system.

413 U.S. at 201 (emphasis added). The Court recognized that a trial court might find "that a lesser degree of segregated schooling . . . would not have resulted even if the Board had not acted as it did," and

that, at some point in time, the relationship between past segregative acts and present segregation may become so attenuated as to be incapable of supporting a finding of de jure segregation warranting judicial intervention.

Id. at 211. The relevance of past acts of the school board was to depend on whether "segregation resulting from those actions continues to exist." Id. at 210.{10} That inquiry is not central under the approach approved by the Court today. Henceforth, the question is apparently whether pre-1954 acts contributed in some unspecified manner to segregated conditions that existed in 1954. If the answer is "Yes," then the only question is whether the school board has exploited all integrative opportunities that presented themselves in the subsequent 25 years. If not, a systemwide remedy is in order, despite the plaintiff’s failure to demonstrate a link between those past acts and current racial imbalance.

The Court’s use of the term "affirmative duty" implies that integration be the preeminent -- indeed, the controlling -- educational consideration in school board decisionmaking. It takes precedence over other legitimate educational objectives subject to some vague feasibility limitation. That implication is dramatically demonstrated in this case. Both lower courts necessarily gave special significance to the Columbus School Board’s post-1954 school construction and siting policies as supporting the systemwide remedy in this case.{11} They did not find -- in fact, could not have found -- that the siting and construction of schools were racially motivated. As the District Court observed:

In 1950, pursuant to a request of the then Columbus school superintendent, the Bureau of Educational Research at The Ohio State University began a comprehensive, scientific and objective analysis of the school plant needs of the school system. The Bureau studied and reported on community growth characteristics, educational programs, enrollment projections, the system’s plan of organization, the existing plant, and the financial ability of the community to pay for new school facilities. Thereafter, a number of general and specific recommendations were made to the Columbus Board by the Bureau. The recommendations included the size and location of new school sites, as well as additions to existing sites. The recommendations were conceived to accommodate the so-called "community or neighborhood school concept." The 1950 concept was related to a distance criteria grounded on walking distance to schools as follows: 3/4 mile for elementary, 1 1/2 miles for junior high, and 2 miles for senior high students.

The Board of Education adopted and relied upon the Bureau’s recommendations in proposing and encouraging the passage of bond issues in 1951, 1953, 1956, 1959 and 1964. School construction of new facilities and additions to existing structures were accomplished in substantial conformity with the Bureau’s periodic studies and recommendations.

429 F.Supp. 229, 237-238 (SD Ohio 1977). Thus, the Columbus Board of Education employed the most objective criteria possible in the placement of new schools.

Nevertheless, the District Court and Court of Appeals found that conformity with these recommendations was a violation of the Equal Protection Clause because, "in some instances, the need for school facilities could have been met in a manner having an integrative, rather than a segregative, effect." Id. at 243.{12} By endorsing this logic, the Court, as a result of its finding of an affirmative duty, employs remedy standards to determine the existence of post-1954 violations in school construction and ignores the previously pivotal role of discriminatory purpose.{13}

This unprecedented "affirmative duty" superstructure sits atop a weak foundation -- the existence of a "dual" school system in 1954. This finding was predicated on the presence of four predominantly black elementary schools and one predominantly black junior high school on the "near east side of Columbus," a then and now black residential area. The Columbus School Board at that time employed, as it does now, a neighborhood school policy. The specific Board actions that the District Court cited were racial assignment of teachers and gerrymandering along part of the border between two school districts.{14} The Court concludes that these violations involved a substantial part of the Columbus school system in 1954, and invokes Keyes for the proposition that the finding of a dual school system follows "absent sufficient contrary proof by the Board, which was not forthcoming in this case." Ante at 458.

There are two major difficulties with this use of Keyes. First, without any explanation, the Court for the first time applies it to define the character of a school system remote in time -- here 25 or more years ago -- without any examination of the justifications for the Keyes burden-shifting principles when those principles are used in this fashion. Their use is a matter of "`policy and fairness,’" 413 U.S. at 209 (quoting 9 J. Wigmore, Evidence § 2486, p. 275 (3d ed.1940)), and I think the Keyes "presumption" scores poorly on both counts when focused on a period beyond memory and often beyond records.{15} What records are available are equally available to both sides. In this case the District Court relied almost exclusively on instances that occurred between 1909 and 1943: undoubtedly beyond the period when many Board members had their experiences with the system as students, let alone as administrators. It is much more difficult for school board authorities to piece together the influences that shaped the racial composition of a district 20, 30, or 40 years ago. The evidence on both sides becomes increasingly anecdotal. Yet the consequences of the School Board’s inability to make such a showing only become more dramatic. Here violations with respect to 5 schools, only 3 of which exist today, occurring over 30 years ago are the key premise for a systemwide racial balance remedy involving 172 schools -- most of which did not exist in 1950.{16}

My second concern about the Court’s use of the Keyes presumption may render my first concern academic. For, as I suggest in Part III, below, the Court today endorses views regarding the neighborhood school policy and racially identifiable neighborhoods that essentially make the Keyes presumption irrebuttable.


The departure from established doctrines of causation and discriminatory purpose does not end with the lower courts’ preoccupation with an "affirmative duty" exhumed from the conduct of past generations to be imposed on the present without regard to the forces that actually shaped the current racial imbalance in the school system. It is also evident in their examination of post-1954 violations, which the Court refers to as "the intentionally segregative use of optional attendance zones, discontiguous attendance areas, and boundary changes." Ante at 461-462 (footnotes omitted).

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

In Washington v. Davis, 426 U.S. 229 (1976), Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), we have emphasized that discriminatory purpose as a motivating factor in governmental action is a critical component of an equal protection violation. Like causation analysis, the discriminatory purpose requirement sensibly seeks to limit court intervention to the rectification of conditions that offend the Constitution -- stigma and other harm inflicted by racially motivated governmental action -- and prevent unwarranted encroachment on the autonomy of local governments and private individuals which could well result from a less structured approach.

This Court has not precisely defined the manner in which discriminatory purpose is to be proved. Indeed, in light of the varied circumstances in which it might be at issue, simple and precise rules for proving discriminatory purpose could not be drafted. The focus of the inquiry in a case such as this, however, is not very difficult to articulate: is a desire to separate the races among the reasons for a school board’s decision or particular course of action? The burden of proof on this issue is on the plaintiffs. Washington v. Davis, supra at 211-245; Arlington Heights v. Metropolitan Housing Dev. Corp., supra at 270.

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

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

"Discriminatory purpose" . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.

Personnel Administrator of Massachusetts v. Feeney, supra at 279. The maintenance of this distinction is important: both to limit federal courts to their constitutional missions and to afford school boards the latitude to make good faith, color-blind decisions about how best to realize legitimate educational objectives without extensive post hoc inquiries into whether integration would have been better served -- even at the price of other educational objectives -- by another decision: a different school site, a different boundary, or a different organizational structure. In a school system with racially imbalanced schools, every school board action regarding construction, pupil assignment, transportation, annexation, and temporary facilities will promote integration, aggravate segregation, or maintain segregation. Foreseeability follows from the obviousness of that proposition. Such a tight noose on school board decisionmaking will invariably move government of a school system from the town hall to the courthouse.

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

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

429 F.Supp. at 254 n. 3.

This is precisely the type of "impact" trigger for shifting the burden of proof on the intent component of an equal protection violation that we rejected in Washington v. Davis, supra. There the Court of Appeals had applied the standards of Title VII to determine whether a qualifying test for police candidates discriminated against blacks in violation of the Equal Protection Clause. According to the Court of Appeals, the plaintiffs were initially required to show disproportionate impact on blacks.{17} That impact was a constitutional violation absent proof by the defendants that the test was "an adequate measure of job performance in addition to being an indicator of probable success in the training program." 426 U.S. at 237. Put differently, the defendants were to show that the test was the product of a racially neutral policy. This Court reversed, rejecting "the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation." Id. at 245.

Indeed, reflection indicates that the District Court’s test for segregative intent in this case is logically nothing more than the affirmative duty stated a different way. Under the test, a

presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials’ . . . inaction was . . . perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their . . . inaction was a consistent and resolute application of racially neutral policies.

If that standard were to be applied to the average urban school system in the United States, the implications are obvious. Virtually every urban area in this country has racially and ethnically identifiable neighborhoods, doubtless resulting from a melange of past happenings prompted by economic considerations, private discrimination, discriminatory school assignments, or a desire to reside near people of one’s own race or ethnic background. See Austin Independent School Dist. v. United States, 429 U.S. 990, 994 (1976) (POWELL, J., concurring). It is likewise true that the most prevalent pupil assignment policy in urban areas is the neighborhood school policy. It follows inexorably that urban areas have a large number of racially identifiable schools.

Certainly "public officials’ . . . inaction . . . perpetuat[es] . . . public school segregation" in this context. School authorities could move to pairing, magnet schools, or any other device to integrate the races. The failure to do so is a violation under Oliver unless the "inaction was a consistent and resolute application of racially neutral policies." The policy that most school boards will rely on at trial, and the policy which the Columbus School Board in fact did rely on, is the neighborhood school policy. According to the District Court in this case, however, not only is that policy not a defense, but, in combination with racially segregated housing patterns, it is itself a factor from which one can infer segregative intent, and a factor in this case from which the District Court did infer segregative intent, stating that "[t]hose who rely on it as a defense to unlawful school segregation fail to recognize the high priority of the constitutional right involved." 429 F.Supp. at 258.

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

I reserve judgment only because the Court, at points in its opinion, seems of the view that the District Court applied a test other than the Oliver test for segregative intent, despite the District Court’s clear indication to the contrary. 429 F.Supp. at 253-254, n. 3. In fact, in Dayton II, post at 536 n. 9, the Court expressly rejects the Oliver test, and, in its opinion in this case, ante at 461-465, indicates that the District Court treated foreseeable effects as only another bit of evidence, and finds that not incompatible with this Court’s prior cases.

Those cases do not forbid "the foreseeable effects standard from being utilized as one of the several kinds of proofs from which an inference of segregative intent may be properly drawn." [429 F.Supp.] at 255. Adherence to a particular policy or practice, with full knowledge of the predictable effects of such adherence upon racial imbalance in a school system, is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn.

Ibid. I have no difficulty with the proposition that foreseeable effects are permissible considerations "as one of the several kinds of proofs," as long as they are not the only type of proof. Use of foreseeable effects in the latter fashion would be clearly inconsistent with Davis, Arlington Heights, and Feeney. But I do have great difficulty with this Court’s taking the above quotations from the District Court out of context, and thereby imputing a general test for discriminatory purpose to the District Court from a passage which, in fact, was part of a discussion of the probativeness of a very special kind of evidence on intent: a neighborhood school policy simpliciter.{18} As far as gauging the purpose underlying specific actions is concerned, it is quite clear from its expression and application of the relevant test for intent, that the District Court looked for foreseeability per se.{19}

As such, the District Court’s treatment of specific post-1954 conduct reflects the same cavalier approach to causality and purpose that underlies the 1954 affirmative duty. That determination requires no more "omnipotence and omniscience," ante at 457 n. 6, than similar determinations in Dayton I, Davis, and Arlington Heights. The court found violations with respect to three optional attendance zones. The Near-Bexley zone, the only zone discussed by this Court, afforded students the option to attend schools in either one of two bordering districts. The District Court found that the zone gave white students of Bexley the opportunity to avoid attending the predominantly black schools to the east. I do not think that the District Court finding can be said to be clearly erroneous despite the lack of any direct evidence on discriminatory purpose, for the School Board did not suggest any educational justification for this zone, and none is apparent. But as that court recognized, the zone is of little significance as far as the current state of segregation in the school system is concerned.

The July 10, 1972, minutes of the State Board of Education . . . appear to indicate that, in 1972, there were 2 public elementary school students and two public high school students residing in the optional zone.

429 F Supp. at 245 (emphasis added). As of 1975, the zone has been dismantled, and the District Court clearly suggests that it does not have any current effect on the Columbus school system.{20}

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

The final optional attendance zone demonstrates the influence of the "affirmative duty" -- whether the 1954 variety or that which follows from Oliver. This optional zone was also created in 1955 in roughly the same part of Columbus. It gave some students within Highland’s boundaries the option of attending the neighboring West Mound Street Elementary School. Again, the District Court found, this permitted transfer to a "whiter" school. But the District Court also found that there was a legitimate educational objective for creation of the zone: Highland was overcrowded, and West Mound was under capacity. The District Court, however, concluded that the School Board’s actions were objectionable because "feasible alternatives" were available; that is, other optional attendance zones could have been drawn which would have had "an integrative effect on West Mound." This again suggests a duty on the School Board to select the most integrative alternative.

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

The second discontiguous zone existed from 1957 to 1963, and permitted students on three streets within the Heimandale Elementary District to attend the "whiter" Fornof Elementary School. The Columbus School Board "inherited" this discontiguous attendance arrangement when it annexed the Marion-Franklin District in 1957. Both schools at that time were at or over capacity, and, when a six-classroom addition was made to Heimandale in 1963, the discontiguous zone was terminated and the children assigned to Heimandale. According to the HEW Civil Rights Survey, Heimandale today is a racially balanced school. App. 747. The District Court made no findings as to the current effect of the Board’s 5-year retention of the Heimandale-Fornof arrangement.

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

Thus, the Innis-Cassady discussion evinces this same affirmative duty to select the more integrative alternative and a consequent shift of the burden of proof to the School Board to prove that the segregative choice was mandated by other legitimate educational concerns. But under Washington v. Davis and Arlington Heights, the burden is on the plaintiffs to show impact and purpose, and in a situation where there is "no evidence" in the record to prove or disprove a proffered justification for a school board decision, the plaintiffs have failed to establish a violation of their constitutional rights.

Secondly, the fact that a school board has once or twice or three times in the past deviated from a policy does not impugn that policy as a justification for a school board decision. There is no constitutional requirement of perfect consistency. Arlington Heights, 429 U.S. at 269. The fact that the Columbus School Board currently maintains a K-3 organization for crippled children hardly diminishes the Board’s interest in maintaining a standard organizational structure for traditional schools throughout the school district.{22} Rather, in Arlington Heights, we spoke of substantive departures from existing policy as casting light on discriminatory purpose, "particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached." Id. at 267.

Thus, it is clear that, with respect to a number of the post-1954 actions that the District Court found to be independent violations, foreseeability was not one kind of evidence, but the whole ball game -- whether the District Court thought that result dictated by the Oliver test or the post-1954 "affirmative duty" purportedly imposed as a result of pre-1954 conduct. Those findings that could be supported by the concept of discriminatory purpose propounded in Davis and Arlington Heights were not accompanied by any effort to link those violations with current conditions of segregation in the school system. In sum, it is somewhat misleading for the Court to refer to these actions as in some sense independent of the constitutional duty it suggests that the Columbus Board assumed in 1954. And, in any event, the small number of students involved in these instances could not independently support the sweeping racial balance remedy imposed by the District Court. Cf. Dayton I, 433 U.S. 406 (1977).


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

The duty of both the District Court and the Court of Appeals in a case such as this, where mandatory segregation by law of the races in the schools has long since ceased, is to first determine whether there was any action in the conduct of the business of the school board which was intended to, and did in fact, discriminate against minority pupils, teachers, or staff. Washington v. Davis, supra. All parties should be free to introduce such additional testimony and other evidence as the District Court may deem appropriate. If such violations are found, the District Court, in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently 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. Keyes, 413 U.S. at 213.

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

The District Court made no attempt to determine the incremental segregative effects of identified violations; given the absence of causality considerations in the court’s findings, it was simply not in a position to do so.{23} To distinguish Dayton I, the majority relies on the District Court’s conclusion that its "finding of liability in this case concerns the Columbus school district as a whole." 429 F.Supp. at 266. But incantation is not a substitute for analysis, and the District Court’s findings and analysis do not support its conclusion.

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

[T]he Board was given ample opportunity to counter the evidence of segregative purpose and current, systemwide impact, and the findings of the courts below were against it in both respects.

Ante at 468. Specifically, the Court is alluding to the Board’s purported failure to show that the violation was not systemwide under Keyes or that a more limited remedy should have been applied under Swann. In fact, the logic of the District Court, apparently endorsed by the Court today, turns the Swann and Keyes showings into chimeras.

Once a showing is made that the District Court believes satisfies the Keyes requirement of purposeful discrimination in a substantial part of the school system, the School Board will almost invariably rely on its neighborhood school policy and residential segregation to show that it is not responsible for the existence of certain predominantly black and white schools in other parts of the school system. Under the District Court’s reasoning, as I have noted, not only is that evidence not probative on the Board’s lack of responsibility, it itself supports an inference of a constitutional violation. In addition, the District Court relied on a general proposition that "there is often a substantial reciprocal effect between the color of the school and the color of the neighborhood it serves" to block any inquiry into whether racially identifiable schools were the product of racially identifiable neighborhoods or whether past discriminatory acts bore a "but for" relationship to current segregative conditions.{24}

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

I do not suggest that any reasonable action by the school authorities could have fully cured the evils of residential segregation. The Court could not and would not impose such a duty upon the defendants. I do believe, however, that the Columbus defendants could and should have acted to break the segregative snowball created by their interaction with housing. That is, they could and should have acted with an integrative, rather than a segregative, influence upon housing; they could and should have been cautious concerning the segregation influences that are exerted upon the schools by housing. They certainly should not have aggravated racial imbalance in the schools by their official actions.

429 F.Supp. at 259 (emphasis added). But, as the District Court recognized, other factors play an important role in determining segregated residential patterns.

Housing segregation has been caused in part by federal agencies which deal with financing of housing, local housing authorities, financing institutions, developers, landlords, personal preferences of blacks and whites, real estate brokers and salespersons, restrictive covenants, zoning and annexation, and income of blacks as compared to whites.

Ibid. The Swann Court cautioned that

[t]he elimination of racial discrimination in public schools is a large task, and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage.

402 U.S. at 22. Yet today the School Board is called to task for all the forces beyond its control that shaped residential segregation in Columbus. There is thus no room for Keyes or Swann rebuttal either with respect to the school system today or that of 30 years ago.


I do not suggest that the inquiry required by Dayton I and Keyes is a simple one, and reviewing courts must defer to the findings of district court judges. But appellate courts also must ensure that these judges are asking themselves the right questions: it is clear in the instant case that critical questions regarding causality and purpose were not asked at all. The city of Columbus has changed enormously in the last 25 years, and, with it, the racial character of many neighborhoods. Incidents related here may have been paved over by years of private choice as well as undesirable influences beyond the control of school authorities, influences such as poverty and housing discrimination, both public and private. Expert testimony should play an important role in putting together the demographic history of a city and the role of a school board in it. I do not question that there were constitutional violations on the part of the Columbus School Board in the past, but there are no deterrence or retribution components of the rationale for a school desegregation remedy. The fundamental mission of such remedies is to restore those integrated educational opportunities that would now exist but for purposefully discriminatory school board conduct. Because critically important questions were neither asked nor answered by the lower courts, the record before us simply cannot inform as to whether so sweeping a remedy as that imposed is justified.

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

It is most unfortunate that the Court chooses not to speak clearly today. Dayton I and Keyes are not overruled, yet their essential messages are ignored. The Court does not intimate that it has fathomed the full implications of the analysis it has sanctioned -- an approach that would certainly make school desegregation litigation a "loaded game board," Swann, 402 U.S. at 28, but one at which a school board could never win. A school system’s only hope of avoiding a judicial receivership would be a voluntary dismantling of its neighborhood school program. If that is the Court’s intent today, it has indeed accepted the role of Judge Learned Hand’s feared "Platonic Guardians,"{25} and intellectual integrity -- if not the Constitution or the interests of our beleaguered urban school systems and their students of all races -- would be better served by discarding the pretextual distinction between de fact and de jure segregation. Whether the Court’s result be reached by the approach of Pilate or Plato, I cannot subscribe to it.


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Chicago: Rehnquist, "Rehnquist, J., Dissenting," Columbus Bd. Of Educ. v. Penick, 443 U.S. 449 (1979) in 443 U.S. 449 443 U.S. 490–443 U.S. 508. Original Sources, accessed October 3, 2022,

MLA: Rehnquist. "Rehnquist, J., Dissenting." Columbus Bd. Of Educ. v. Penick, 443 U.S. 449 (1979), in 443 U.S. 449, pp. 443 U.S. 490–443 U.S. 508. Original Sources. 3 Oct. 2022.

Harvard: Rehnquist, 'Rehnquist, J., Dissenting' in Columbus Bd. Of Educ. v. Penick, 443 U.S. 449 (1979). cited in 1979, 443 U.S. 449, pp.443 U.S. 490–443 U.S. 508. Original Sources, retrieved 3 October 2022, from