THE CONSTITUTION AND DE FACTO SCHOOL SEGREGATION
The purpose of this research paper is to review and analyze school segregation decisions of the Federal Courts, with primary empha¬sis on cases involving de facto segregation in the North rather than de jure segregation in the South. In this paper, de facto segregated schools are intended to mean schools where racial imbalance exists for reasons other than State law which prior to 195 required separate schools for blacks and whites,1 The whole history of court decisions applying the equal protection clause of the federal constitution to the school segregation problem is helpful in understanding where we are today North of the Mason-Dixon line, and perhaps also gives some insight as to what lies ahead in this aspect of school law.
HISTORICAL LEGAL BACKGROUND
Amendment XIV, Section 1 of the United States Constitution adopted in 1868 provides in part as follows:
"No State shall * * * deny to any person * * * the equal protection of the laws,"
The constitutionality of requiring that the races be separated began in 1896, where in Plessy v. Ferguson, 2 the Supreme Court upheld - the constitutionality of a Louisana statute requiring separate facilities for blacks and whites on passenger trains as against the claim that this was a denial of equal protection of the laws, The court held:
"Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable or more obnoxious to the
Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, 3 or the corresponding acts of state legislatures."
Thus, rather casually, the "separate but equal" doctrine was born and was to flourish during the first half of the Twentieth Century, only to be unanimously overruled in Brown v. Board of Education, decided in 1954. Chief Justice Warren, speaking for the whole court held:
"We conclude that in the field of public education the doctrine of °separate but equal° has no place. Separate educational facilities are inherently unequal. Therefore,
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we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of equal protection of the laws guaranteed by the Fourteenth Amendment."5
The following year in what is popularly called Brown II,h D3str3ot 0,ohl-ts were directed to:
" * * * take such proceedings and enter such orders and decrees consistent with this opinion
as are necessary and proper to admit to the public schools on a racially non-discriminatory basis with all deliberate speed the parties to these cases."7
Thereafter began, in the south, the process of dismantling dual school systems under the direction of the Federal Courts. At first, the process was tediously slow, The southern states, generally speaking used every legal device availably; to avoid and delay integration of black and white school children. An extreme example was the closing of the public schools in Prince Edward County, Virginia, for a period of several years. These schools were finally reopened in 1964 on direct order and judgment of the Supreme Court in Griffin v. County School Board.8 All deliberate speed was interpreted in the South to mean all deliberate delay. Initially, nothing was done to implement Brown I and II, then gradually the school districts in the southern states, in the place of the dual system of schools for blacks and whites, substi¬tuted geographic attendance zones (similar to the neighborhood school plan which exists in urban school districts in the North), along with freedom of choice or free transfer by students. In the early years, several of the lower federal courts upheld the geographic attendance zoning plans and freedom of choice plans even though the impact on racial imbalance in the schools was not great, 9 It seemed reasonable to give these plans an opportunity to accomplish the required result, to dismantle dual segregated school systems.
Beginning in the middle 1960's the pace of desegregating the schools in the south began to quicken and the federal courts began to tolerate less and less delay. The new attitude of the federal courts is exemplified in US v. Jefferson County Bd of Ed,10 where the 4th Circuit Court of Appeals stated:
"Now after 12 years of snail's pace progress toward desegregation, courts are entering a new era. The question to be resolved in each case is: How far have formerly de jure segregated schools progressed in performing their appropriate constitutional duty to furnish equal educational opportunities to all public school children?
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The clock has ticked the last tick for tokeil.sm and delay in the name of 'deliberate speed;
A freedom of choice plan was held unconstitutional in the Jefferson case because it was counterproductive and did not create a bona fide unitary systen2where schools are not white schools or Negro schools--just schools,"
In the Goss case, 13 the Supreme Court held invalid a transfer plan permitting student transfers from a school where the student was part of a racial minority to some other school where his race was in the majority, In Green v, County School Board, 14 the Supreme Court outlawed all freedom of choice plans for former de jure segregated school systems and held:
"School boards such. as the respondent then operating state-compelled dual systems were nevertheless clearly charged 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, * 15
"The burden on a school board today is to come forward with a plan that promises realistically 1b to work, and promises realistically to work now,"
If any question remained as to the Supreme Court's attitude this was put to rest in Alexander v. Homes County Board of Education,1? involving a number of school districts where delay was sought in putting into effect school desegregation plans until the beginning of the next school year. The plea was rejected and the court held that the school districts must "terminate dual systems at once and to operate now and hereafter only unitary schools",1S
The most recent issue resolved by the Supreme Court concerned whether or not busing was permitted or required to desegregate southern schools. Most recently in the Swann casel9and the Mobile case 0, the Supreme Court held that the "affirmative duty°" of southern school district requires more than merely substituting geographical attendance areas for the former dual system and that busing of school children must be used if necessary to eliminate all vestiges of school segregation, In Swann the court sustained the extensive busing of school children, as ordered by the District Judge in the following words:
"The objective today remains to eliminate from the public schools all vesties of state-imposed segregation.* * *
"The scope of permissible transportaion of students as an implement of a remedial decree
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has never been defined by this court * * * . Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. The Charlotte school authorities did not purport to assign students on the basis of
geographically drawn zones until 1965 and then they allowed almost unlimited transfer privileges. The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record,
"Thus, the remedial techniques used in the District Court's order were within the court's power to provide equitable relief; implementaion of the decree is well thin the capacity of the school authority.
In Mobile more extensive busing was ordered
"As we have held 'neighborhood school zoning', whether based strictly on home-to-school distance or on 'unified geographic zones' is not the only constitutional permissible remedy; nor is it per se adequate to meet the remedial responsibilities of local boards. *
"On the record before us, it is clear that the Court of Appeals felt constrained to treat the eastern part of metropolitan Mobile in isolation from the rest of the school system, and that inadequate considerations were given to the possible use of bus transportation and split zoning. For these reasons we reverse the judgment of the Court of Appeals to the parts dealing with student assignments, and remand the case for the development of a decree 'that promises realistically to work' and promises realis¬tically to work now.' * * ." 23
The book may not be closed yet on school desegregation in the South, but surely the last chapter is near. The legal battles are shifting to the l?orth of the Nason-Dixon line and to States which have not had traditional de jure segregation, that is de jure segregation, southern style, where State laws specifically require separate schools for blacks and whites.
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NORTH OF THE MASON-DIXON LINE
An historial compilation of the various State laws through-out the North permitting or not permitting separate schools for blacks and whites is beyond the scope of this paper. It is clear, however, that Michigan has been one of the leaders in prohibiting discriminatory
treatment of school children on account of race, since as early as 1867 state law required that "all residents of any district shall have an equal right to attend any school therein,"2 " .he meaning of this language was made clear in 1869 in a test case brought against the Detroit Board of Education, 25 when Chief Justice Cooley speaking for the court held that this statute was applicable to all school districts in the State of Michigan and prohibited any school district from excluding "any resident of the district from any of its schools, because of race or color or religious belief or personal pecularities,"26 Since then there has been no question in Michigan that separate schools for blacks or any other racial minority was prohibited.
While the record in other states may not be as good as that
of Michigan, 27 generally speaking, in the North current racial imbalance in the schools is due to factors other than a State mandate requiring separate schools for blacks and whites; and desegregation suits in the North have been defended on the ground that the equal protection clause of the Fourteenth Amendment is only a prohibition against State action and does not prohibit acts of discrimination by private individuals, and that residential segregation causing racial imbalance in the schools is action of private individuals, not that of the State omits agent, the school board, and therefore, constitutional rights are not being infringed by the State,
One of the earliest cases involving school segregation, northern-style, is Dell v, School City of Gary, 28 a suit brought in Federal Court in Indiana where the court found:
"From a consideration of all the evidence and the record, the court cannot see that the board of education has deliverately or purposely segregated the Gary schools according to race. In the court's opinion the plaintiffs have failed to sustain the burden of showing that the school board has so drawn the boundary lines of the school districts within the Gary school system so as to contain the negroes in certain districts and the whites in others,"29
"The evidence shows that the Board has consistently followed the general policy requiring the students
to attend the school designated to serve the district in which they live regardless of race, * * 30
"The problem in Cary is not one of segregated schools but rather of segregated housing.
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Either by choice or by design, the negro population of Gary is concentrated in the so-called central area, and as a result schools in that area are populated by negro students." 31
"The court finds no support for plaintiff's position that defendant has an affirmative duty to balance the races in the various schools under its jurisdiction, regardless of the residence of students involved. * "
On appeal to the 7th Circuit Court of Appeals, the judgment was affirmed, the court holding:
"The School District boundaries in Gary were determined without any consideration of race or color, We agree with the argument of the defendants stated as 'there is no affirmative U.S. Constitutional duty to change innocently arrived at school attendance districts for the mere fact that shifts in population either increase or decrease the percentage of either Negro or white pupils."32
Another leading case involving de facto segregation is Deal v. Cincinnati Board of Education,33 A reading of the case would indicate that neighborhood racial concentrations in Cincinnati and the non-discriminatory neighborhood school geographic attendance zones of long standing are quite similar to what exists in many urban communities in Michigan. The result of the neighborhood school policy, the geographical attendance zones, and racial concentrations in Cincinnati was that a number of schools were largely black, a number were largely or exclusively white and some were racially mixed. Suit was brought to require correction of racial imbalance on the ground that a racially imbalanced school was a denial of equal educational opportunities, The court denied relief, and remanded the case for further findings of fact by the trial judge. The court held:
"We hold that there is no constitutional duty on the part of the Board to bus Negro or white children out of their neighborhoods or to transfer classes for the sole purpose of alleviating r acial imbalance that it did not cause, nor is there a like duty to select new school sites solely in furtherance of such a purpose."34
"Appellants' right to relief depends on a showing of more than mere statistical imbalance in the Cincinnati schools. They must also
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expose that additional quantum of discriminatory state action which deprives them of their constitutional rights of freedom of choice, If the school officials, through overt practice or by subterfuge, have treated students differently solely because of race, then they not only must cease doing so, but, also must take affirmative action to remedy the situation which they have caused,"35
"The District Court's finding on the racial composition of the schools in Cincinnati revels that the schools are indeed racially imbalanced. In other words, the Negro student population is not spread uniformly among the operation of the neighborhood school policy
in conjunction with the residential concentration of Negroes in some areas. As the District Court held, and we affirmed above, this fact by itself gives rise to no relief. However, the crucial fact to be found in whether the racial imbalance was intentionally caused by gerrymandering or by other alleged discriminatory practices on the part of the Board,'°3o
The Deal case was before the 6th Circuit Court of Appeals again following findings of fact by the trial judge as originally ordered, 37 The court again affirmed the previous decision:
"The basic issue in the case was whether the Board had a constitutional duty to establish
a program to balance the races in the Cincinnati School System. We dealt with this issue extensively in our opinion in the first appeal and held that there was no such duty where the imbalance had resulted from racial concentrations in the school neighborhoods and not from any act of discrimination on the part of the Board. We were of the belief that the Constitution prohibited enforced segregation but did not require forced integration," 38
"Our case involves the operation of a long-established unitary non-racial school system--just schools where Negro as well as white children may attend in the district of their residence, There is not an iota of evidence in this record where any of the plaintiffs or any of the class which they represent, was denied admission to a school in the district of his residence.
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"It is the contention of appellants that the Board owed them a duty to bus white and Negro children away from the districts of their residences in order that the racial complexion would be balanced in each of the many public schools in Cincinnati. It is submitted that
the Constitution proposes no such duty. Appellants are not the only children who have constitutional rights. There are Negro, as well as white, children who may not want to be bussed away from school districts of their residences, and they have just as much right to attend schools in the area where they live. They ought not to be forced against their will to travel out of their neighborhoods in order to mix the races,"39
"Boards of Education can hardly be blamed or held responsible for neighborhood residential patterns,L0
"In our opinion the burden of righting wrongs alleged to have been committed by public or private agencies ought not to be foisted upon Boards of Education, which have enough problems of their own to solve in providing proper education for the young, 4i
"The amended complaint is in form commonly used for actions for desegregation of dual school systems, where the Board is asked to submit a plan for desegregation. It is totally inappropriate here where desegregation took place eighty-two years ago. We find no good reason for disrupting the operation of the Cincinnati School System,"L2
There are other Federal decisions of similar import43 but the Bell and Deal decisions both of which the Supreme Court of the United States refused to review exemplify the position taken by the Federal Courts in 1960's with regard to de facto segregation. Unless the racial imbalance is intentionally caused by gerrymandering of school attendance boundaries or other discriminatory acts (Deal) or unless the school board haS deliberately or purposely segregated the schools according to race (Bell), the racial imbalance is de facto segregation not de jure segre¬gation and hence constitutionally valid,11
Turning next to cases which recognize the legal principles laid down in Bell and Deal, yet found acts of de jure segregation, a leading case is Keyes v. Denver.5 In this case, the Denver Schools were de facto segregated because of the neighborhood school policy and the fact that blacks were concentrated in certain residential areas similar to the situation in Cincinnati. The Denver school board after careful study adopted a plan to relieve racial imbalance in the Denver
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schools by the busing of blacks and whites. Before the plan went into effect new school board members were elected and by board resolution the busing plan was rescinded. Court action followed and the federal district judge entered an injunction requiring the school board to put into effect the busing plan originally adopted. The rationale of the court was that the action of the school board in reversing or repealing the busing plan was an affirmative act of discrimination or segregation and therefore, was de jure state action denying the equal protection of the laws. Also significant to the decision was the finding by the court that the school board had in the past carried out a segregation policy of maintaining, encouraging and continuing segregation in the public schools and as a result thereof, affirmative action was required to correct the situation much the same as the affirmative action required to dismantle dual systems in the south. The court concluded
The precipitate and unstudied action of four of the members of the Board rescinding and nullifying the school integration plan, which plan had been adopted after almost ten years of debate and study, and the adoption in its place of a substitute plan which would have
had the effect of perpetuating school segregation, had not only a chilling effect upon their rights; it had a freezing effect. Under the law of the case, we have no alternative. The action taken must be ruled unconstitutional and the proposed action must be enjoined." 46
The recision of Resolutions 1520, 1524 and 1531 was a legislative act which had for its purpose restoration of the old status quo and was designed to perpetuate segregation in the affected area, This act in and of itself was an act of de jure segregation. It was unconsti¬tutional and void," 47
This case stands for the legal principle that if a school district backtracks from a desegregation plan, such action of backtracking may be considered to be an act of de jure segregation, It should be noted, however, that in the Keyes case an important finding was that even prior to the backtracking, the school board was quilty of carrying out a segregation policy of maintaining, encouraging and continuing segregation in the Denver schools, and had the affirmative duty to remedy the situation. This case leaves open the question of whether the ruling on backtracking would have been the same absent previous acts of segregation giving rise to an affirmative duty to desegregate.
The question raised by the Keyes case, the one just referred
to, was answered in Bradley v, Milliken, 48 a decision by the 6th Circuit Court of Apeals handed down October 13, 1970, This decision should not be confused with the more recent decision of Federal District Judge Roth holding that the Detroit schools are de jure segregated, 9 The suit against the Detroit School District was originally begun in August of 1970 and in addition to alleging that the Detroit school board was
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guilty of de jure segregation, the plaintiff sued the governor and other state officials claiming that an act of the Michigan legislature which delayed and postponed a desegregation plan adopted by the Detroit Board of Education in April of 1970, which would have rectified racial imbalance in twelve Detroit high schools, was unconstitutional. An injunction against this state act was sought but had been denied by Judge Roth in District Court, On appeal the 6th Circuit held the act unconsti¬tutional, in essence agreeing with the Keyes decision and holding that backtracking by the state legislature is also unconstitutional. The legal analysis and rationale of the 6th Circuit was as follows:
"As previously stated, the plan adopted by the Detroit Board of Education was designed to provide a better balance between students of the Negro and white races in twelve high schools. If this plan had come into existence under a judgment in the United States District Court for the Eastern District of Michigan, there could be no question that Sect. 12 of Act 48 would be void, The Legislature of a State cannot annul the judgments nor determine the jurisdiction of the Courts of the United States, *
"In the present case the April 7 plan came into being, not as a result of a judgment of a District Court, but by the voluntary action of the Detroit Board of Education
in its effort further to implement the mandate of the Supreme Court in Brown v, Board of Education, * * r , The implementation of the April 7 plan was thwarted by State action in the form of the Act of the Legislature of Michigan,
"In numerous decisions the Supreme Court and other federal courts have held that State action in any form, whether by statute, act of the executive department of the State, or local government, or otherwise, will not be permitted to impede, delay or frustrate proceedings to protect the rights guaranteed to members of all races under the Fourteenth Amendment." 50
"In the present case the Detroit Board of Education in the exercise of its discretion took affirmative steps on its own initiative to effect an improved racial balance in twelve senior high schools. This action was thwarted, or at least delayed, by an action of the State Legislature. *
"We hold Sect. 12 of Act 48 to be unconstitutional and of no effect as violative of the Fourteenth
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amendment. By this ruling on the invalidity
of Sect. 12, we express no opinion at the present stage of the case as to the merits of the plan adopted by the School Board on April 7, 1910, or as to whether it was the constitutional obligation of the School Board to adopt all or any part of that plan."51
The last sentence quoted makes clear the position of the 6th Circuit that backtracking from a desegregation plan is unconstitutional even though the school district may have had no affirmative duty to desegregate.
Another backtracking case is the Kalamazoo School District case52 decided by the United States District Court for the Western District of Michigan. The facts in the Kalamazoo case parallel those in Keyes. The kalamazoo Board adopted a plan to alleviate racial imbalance which included busing of students, and following an election of a new board, the plan was rescinded. The Federal Court reinstated the plan by injunctive order. The District Court's opinion is wide-ranging, but is primarily based on the backtracking legal concept developed in Keyes and Bradley. Note the following language;
In this context, then, the 6th Circuit teaches us that any attempt by an arm of the state
government to impede an effort by a duly constituted school board to protect constitutional rights is itself state action which denies equal protection of the laws, or more specifically, denies equal educational opportunity and quality education for black students in the black schools in Kalamazoo.
The steps of the school board on May 7, 1971, were steps lawfully taken for the purpose of protecting rights guaranteed by the Fourteenth Amendment, and, therefore, the newly constituted board is without constitutional power to set aside that clear action designed to protect the Fourteenth Amendment rights."53
KeYc, Bradley and Kalamazoo clearly stand for the proposition that once a school district embarks upon a desegregation plan to relieve racial imbalance in its schools, even though no affirmative duty existed to relieve the racial imbalance, a retreat from those plans either by legislative mandate or by subsequent board action will probably be held unconstitutional.
In addition to the Keyes, Bradley and Kalamazoo type of cases where backtracking from a desegregation plan was involved, there have been a number of cases holding that northern school districts were guilty of de jure segregation. These cases accept the principles
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laid down in Bell and Deal, which have been referred to in detail previously, but enunciate in more detail what constitutes de jure segregation, northern-style, One of the earliest of this type of case is Taylor v, Board of Education, 54 which is in no way inconsistent with Bell and Deal since in Taylor it was found that the school board had gerrymandered attendance boundaaries for purposes of segregating blacks and whites and this was held to be unconstitutional. In United States v. School District l;l, 55 involving a Cook County, Illinois, school district, the District Court had found that:
"Before 1964 defendants; predecessors had segregated Negro from white pupils on the sole basis of their being Negroes; and that since 1964 defendants had by thier policies and practices not only failed to overcome the unconstitutional discrimination of their predecessors, had themselves, by their own policies and practices, continued to maintain unconstitutional segregation in the school district through decisions based solely on the fact that negro pupils were Negro. The court found that these decisions consisted of formal drawing on attendance zones, but.ing of pupils, assignment of teachers, location and construction of schools, and rejection of a plan for restructuring the school district,"56
The defendants argued on the basis of Bell and Deal that the de facto segregation pattern came about innocently and that they had no constitutional duty to undo the innocent result. The court responded:
"The weakness in this argument is that the District Court did not find that defendants inherited an innocent de facto segregation situation, but found that they inherited from their predecessors the discriminatorily segregated school system which defendants subsequently fortified by affirmative and purposeful policies and practices which effectively rendered de jure the formerly extant de facto segregation, The court found invidiousness in these policies and decisions, and in unlawful discrimination by defendants and their predecessor both before and after Fegruary 19, 1964, We need not therefore consider defendants argument that they had no duty to desegregate a purely de facto segregated school district. * * * This is not a case of mere 'inaction' under the court's finding of the unlawful actions of the board."57
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This case shows that where you start off with segregated school V caused by discriminatory policies of the school board, then add to thatg (1) establishing the school attendance boundaries which continues, aggra¬vates and feeezes the racial imbalance; (2) busing of students to main¬tain the racial imbalance; (3) assigning black teachers to blak schools and white teachers to white schools; (4) constructing new shcools which continues and aggravates the segregated situation; and (5) rejecting a desegregation plan, add up to de jure acts of segregation and which will require affirmative action to undo what was unconstitutionally done,
The Pontiac Schoo case 58 has been in the news recently because the Supreme Court of the United States has refused to reveiw the decision of the 6th Circuit Court of Appeals in affirming the trial court's holding that the Pontiac School board is guilty of de jure segregation and requiring the busing of the students to correct and eliminate such segregation. The trial judge held:
"This court finds that the Pontiac board of education intentionally utilized the power at their disposal to locate new schools and arrange boundaries in such a way as to perpetuate the pattern of segregation within the city and thereby, deliverately, * * * prevented integration, When the power to act is available, failure to take the necessary steps so as to negate or alleviate a situation which is harmful is as wrong as is the taking of affirmative steps to advance that situation. Sins of omission can be as serious as sins of commission, Where a board of education has contributed and played a major role in the development and growth of a segregated situation, the board is guilty of a de ,jure segregation, The fact that such came slowly and surreptitiously rather than by legislative announcement makes the situation no less evil."59
As indicated previously, on appeal the 6th Circuit court of Appeals affirmed and stated
"Appellants correctly contend that under Deal v, Cincinnati * * * a school district has no afffirmative g bligation to achieve a balance of the races in the schools when the existing iblalance isnot attributied to school policies or practices and is a result of housing patterns and other forces over which the school administra¬tion had no control. * * *
"Accordingly the principal question before us is whether there is sufficient evidence in the record to support the determination of the District Judge that appellants are responsible for the existing racial imbalance in the Pontiac School System," 60
And, in concluding that there was sufficient evidence to support a conclusion of purposeful segregation by the school board, the appellate court stated°
"We observe, as did the District Court, that school location and attendance boundary line decisions, for the past fifteen years, more often than not, tended to perpetuate segregation. Attempted justification of these decisions in terms of proximity of school buildings, their capacity, and safety of access routes requires inconsistent applications of these criteria, Although, as the district court stated, each decision considered alone might not compel the conclusion that the board of education intended to foster segregation, taken together, they support the conclusion that a purposeful pattern of racial discrimination had existed in the Pontiac school system for at least 15 years,"61
The Pontiac case accepts Deal as controlling law,yet finds as a fact purposeful segregation by the school board based on inferences drawn from proven facts and on circumstantial evidence, Pontiac would indicate that if, in decisions regarding location of new schools or in changing of school attendance boundaries, segregation and racial imbalance is perpetuated, a school district runs the risk that such action might be held to be "purposeful segregation", The Pontiac case does not make clear whether "purposeful segregation" includes a situation where racial imbalance remains the same as a result of the actions of the school board, or whether it means it is necessary to find that the actions of the school board in locating new schools and in changing school attendance boundaries aggravated racial imbalance. A reveiw of the facts as found by the District Court indicates that the locating of the new schools and the changing of school boundaries pretty much con¬tinued the existing racial imbalance, whereas if the new schools had not been built and existing schools merely enlarged and: if attendance boundaries had not been changed, racial imbalance in the schools in question would have improved. This would indicate that school board action which freezes a segregated situation where racial balance would have improved other wise might be held to be p';rposeful segregation,
The Indianapolis case62which was decided August 18, 1971, at the District Court level is important and significant for several reasons. This case rose out of the State of Indiana,. the same State
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out of which the Bell case arose yet here the factual conclusion as to de jure segregation was just the opposite from Bell, The district judge pointed out that in Indianapolis segregated schools existed until 1949 by operation of state law which permitted separate schools for b cks and whites, and since that date the school board in its action of locating new schools, determining school attendance boundaries, permitting free transfers from one school to another, and actions of city officials and other governmental agencies such as in the field of housing clearly established purposeful and intentional segregation and a continuation of the segregated system as it existed in 1949, What is particularly noteworthy about the case is that the court held that a desegregation plan involving only the school city of Indianapolis was not workable because of the white flight to the suburbs and ordered the adding of suburban school districts in and around Indianapolis as parties defendant so that a desegregation plan could involve the entire metro¬politian area and so that a plan which wuuld work could be devised, A clear case of de jure segregation was made out and the decision is consistent with Bell and Deal; what is new is suggested relief in the form of a plan which would involve the entire metropolitan area,63
A case in the news and hot off the press involving de jure segregation in the North is the Detroit case64 where District Judge Roth ruled that both the Detroit Board of Education and the State of Nichigan were guilty of acts of de jure segregation with regard to the Detroit schools, The court accepted the principles laid down in Bell and Deal as to what must be shown to establish de_ jure segregation in the following words "As we assay the principles essential to a finding of de jure segregation, as outlined, in rulings of the United States Supreme Court, they are;
1, The State, through its officers and agencies, and usually, the school administration, must have taken some action or actions with a purpose of segregation,
2. This action or these actions must have created or aggravated segregation in the schools in question,
3. exists, A current condition of segregation 'Ye find these tests to have been met in this case, We recognize that causation in the case before us is both several and comparative, The principls causes undeniably have been population and housing patterns, but State and local governmental action, including school board actions have played a substantial role in promoting segregation," 65
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The acts of de ,jute segregation as found by the District Court were as follows:
1. Optional attendance zones in neighborhoods undergoing racial transition which permitted whites to escape segregated school
2. Transportation of blacks to other black schools rather than white schools which had available space and were nearer;
3. Attendance zones were altered and grade structure in some schools were changed to continue segregation;
4. The guidelines to reduce racial imbalance contained in the joint resolution of the State Board of Education and Civil Rights Commission were ignored in that the Board of Education did not take advantage of opportunities to integrate;
5. Building of small primary schools contained blacks and compounded segregation;
6. No transportaion funds were available from the State which controlled and maintained segregation;
7. The bonding restrictions and state aid formula created and perpetuated systematic educational inequalities;
8, The State postponed the Detroit segregation plan and provided for freedom of choice which had thepurpose and effect of maintaining segregation; and
9, School construction and furnishings advanced or perpet¬uated segregation.
The court ordered submitting of a desegregation plan by the Detroit Board of Education and by the State defendants to include the entire Detroit metropolitan area rather than merely the 'Detroit School District, This case is another indicator that in the North desegre¬gation plans may be "going metro," The courts realize that if only the core city and. school district are involved in desegregation plans, that the chances of such plans accomplishing desegregation are somewhat problematical. Without sedegregation plans going metro, urban areas will within a few years be largely black schools and in effect, re-segregated along school district boundary lines and the judgments and orders of the federal courts will be in effect thwarted,06 This case also is of significance in indicating, as does the Pontiac case, a changing philosophical attitude on the part of the federal courts, While the principles of Bell and Deal are still followed, nevertheless the courts seem more ready to find intentional and pruposeful segregation by school boards, where in truth the actions complained of could be explained and justified as merely providing schools where needed and as relieving overcrowded schools rather than intentionally and purpose-fully segregating along racial lines,67
-17-CONCLUSION
An attempt to forecast what; the futu:rc wtl1 bring in this field of de facto segregation is more risky than most le5a.1. predictions, Perhaps in the next few years there will be a complete blurring of lines between de jure and de facto segregation and racial imbalance will have to be corrected regardless of "blame". Perhaps the pendulum will swing the other way and federal appellate courts or the Supreme Court will indicate that the Pontiac case and the Detroit case went too far.
This writer would suggest, however, that a middle course le more likely than the two possibilities suggested; that is, that the courts will continue to follow Keyes and Bradley as to backtracking, and Bell and Deal in requiring proof of purposeful segregation. At
the same time the trend of somewhat relaxed requirements in establishing de ,jure segregation will continue. An important point to remember, how-ever, is that in one of the Northern cases, beginning with Bell, have the District Judge's findings of fact as to whether or not there was purposeful segregation, pgen reversed, The factual decision of the trial judge is crucial. And the parties bringing suit still have the burden of proving intentional and purposeful acts of segregation by the school board which created or aggravated segregation. Whether mere perpetuation or freezing of a de facto segregated. situation is a de jure sct of segregation is not clear. Bell and Deal and residential integration, it would, obviously, be far more acceptable to elected governmental officials and to the general public. It is suggested, however, that the history of the last two decades indicates that such is not to be, and instead, school integration will be leading rather than following or going hand in hand with social and residential integration. A frank realization of this by everyone would make easier the transition from a segregated society to an integrated one, and from de facto segregated schools to racially balanced, integrated schools.
-18-FOOTNOTES
1. In a recent opinion (September 10, 1971), Justice Douglas of the U.S. Supreme Court, sitting as Circuit,Justice while the Supreme Court was in summer recess, said: "But contours of de jure segregation have not been drawn by the Court. Historically, it meant the existence of state-created dual school systems. That is to say, de jure segre¬gation was a mandate by the legislature, carried into effect by a school board, whereby students were ssignp . oschools solely by race."
Gomperts V. Chase, 92 S Ct lb, 1 (1971).
2. 163 US 537.
3. 163 US 537, 550-551.
4. 347 US 4.83, 74 S Ct 686, 98 L Ed 873 (1954).
5. 34.7 US 483, 495.
6. Brown v. Board of Education, 34.9 US 295, 75 S Ct 753, 99 L Ed 1083 (1955), The initial Frown decision in 1954 is commonly re¬ferred to as Brown I.
7. 34.9 US 295, 301.
8. 377 US 218, 84 S Ct 1226, 12 L Ed 2d (1964).
9. Niiapp v, Board of Education of Chattanooga, Tenn, (6th Cir 1967), 373 F2d 75: Brownland v, Houston Ind School Dist, D C Tex, 262 F Supp 266 (1966); Niorthcross v. Bd. of Education of the City of i'iemphis, Tenn, (6th Cir 1962) 302 F2d 818, pert denied; 370 US 944, 82 S Ct 1586, 8 L Ed 2d 810.
10(5th Cir, 1966) 372 F2d 836; aff'd en banc, 380 F2d 385, cert denied; 389 US 840; 88 S Ct 67, 19 L Ed 2d 103.
11 372 F2d 836, 896. To the same effect, see Griffin cited supra, where the Supreme Court held: "The time for mere 'deliberate speed' has run out, * * * 377 US, p 234.
12. 372 F2d 836, 890,
13. Goss v. Bd of Ed of Knoxville, 373 US 863, 83 S Ct 1405, 10 L Ed 2d 632 (1963),
14. 391 US 430, 88 S Ct 1689, 20 L Ed 2d 716 {1968) -19
15. 391 US 4.30, 437.
16. 391 US 430, 439.
17. 396 US 19, 90 S Ct 20 L Ed (1969),
18. 396 US 19, 20.
19. Swann v. Charlotte-Mechlenburg Bd of Ed, 4.02 US 1, 91 S Ct 1267, 28 L Ed 2d 554 (1971),
20. Davis v. Board of School Commissioners of Mobile County, 4.02 US 33, 91 S Ct 1289, 28 L Ed 2d 577 (1971),
21. 91 S Ct 1267, 1275.
22. 91 S Ct 1267, 1282-1283.
23. 91 S Ct 1289, 1292.
24. Sessions Taws, 1867, 4.3, For the present comparable provision in the School Code, see 194.8 CL, 34.0.356, NSA 15.3355, which provides "No separate school or department shall be kept for any person or persons on account of race or color," By comparison Ohio abolished separate schools for blacks and whites in 1887, 84. Ohio Taws 34, By contrast Indiana by statutory enactment required and permitted separate schools (Acts 1869, Ch 16, §3, p 4.1) and this official State policy was not changed until 194.9, Acts 194.9, Ch 186, p 603, Burls Ind Stat Ann, ss 28-6106 to 28-6112 (1970), as amended, when desegregation on a phased basis was required,
25. People ex rel Winkman v, The Bd of Ed of the City of Detroit, 18 Mich 399 (1869).
26. 18 Mich 399, 409.
27. See footnote 24.
28. 213 F Supp 819, aff'd; 324 F2d 209 (7th Cir 1963) cert denied; 377 US 924, 84 S Ct 1223, 12 L Ed 2d 216,
29. 213 F Supp 819, 826.
30. 213 F Supp 819, 827.
31. 213 F Supp 819, 827.
32. 324 F2d 209, 212.
33. 369 F2d 55 (6th Cir 1966), cert denied; 389 US 84.7, 88 S Ct 39, 19LEd2d114.
34. 369 F2d 55, 61.
-20
35. 369 F2d 55, 63.
36. 369 F2d 55, 64.
37. 419 F2d 1387 (1969).
38. 419 F2d 1387,
39. 419 F2d 1387,
40. 419 F2d 1387,
41. 419 F2d 1387,
42. 419 F2d 1387,
43. Downs v, Ed of Ed of Kansas City, (10th Cir 1964); 336 F2d 988, cert denied; 380 US 914, 85 S Ct 898, 11 L Ed 2d 800; Spring-field School Comm v. Barksdale, (1st Cir 1965) 348 F 2d 261. For collect of cases, see 11 ALE 3rd 788,
44. The only dissent from the views expressed in Bell and Deal is Barksdale v, Springfield School Comm, 237 F Supp 543 (D ,ss 1965), where it was held that racial imbalance alone was unconstitutional. But on appeal the judgment was vacated and the holding rejected, Springfield School Comm v, Barksdale,, 348 F2d 261 (1st Cir 1965).
45. 303 F Supp 279 (D C Col 1969). The District Court issued a preliminary injunction requiring partial implementation of desegre¬gation plan. The Court of Appeals, 10th Circuit, issued a stay of injunction pending an appeal, but Justice Brennan of the Supreme Court sitting as a Circuit Justice during the 1969 summer recess, reinstated the preliminary injunction, 396 US 1215, 90 S Ct 12, 24 L Ed 2d 37,
46. 303 F Supp 279, 288,
47. 303 F Supp 279, 293.
48. 433 F2d 897 (1970).
49. Handed down September 27, 1971.
50. 433 F2d 897, 902.
51. 433 F2d 897, 904,
52. Decision rendered August 20, 1971, no citation yet available,
53. pages 36-37 of the Opinion,
54. 294 F2d 1136 (2nd Cir 1961) cert denied: 368 US 940, 82 S Ct 382, 7 L Ed 2d 339,
55. 404 F2d 1125 (7th Cir 1969),
-21
56. 4.04- F2d 1125, 1128,
57. 404 F2d 1125, 1131.
58. Davies v, School District of the City of Pontiac, (E D Mich 1970) 309 F Supp 734-, affirmed (6th Cir 1971 F2d
59. 309 F Supp 734, 742.
60. F2d , page 4 of the Opinion,
61. F2d , page 5 of the Opinion,
62. United States v, The Board of School Commissioners_ (19'/l)
no citation yet available,
63. A case from the south also suggests "going metro", see Bradley v, School Board of City of Richmond (E D Va 1970), 51 FRD 139, where suburban school districts were added as parties defendant as being possible necessary parties to a workable desegregation plan,
64. Bradley v, Milliken, opinion rendered September 27, 1971, no citation yet available,
65/ Bradley v, Milliken, pages 21-22 of the Opinion.
66. This problem is discussed in detail in the Indianapolis case referred to previously. White flight to the suburbs is country-wide,
67. Also see Soria v. Oknord School District, (C D Call 1971), 328 F Supp 155, where the court granted a summary judgment to plaintiffs and held (p 157)0 " * * (T)his court further holds as a matter of law that * * * there are sufficient 'de ,lure overtones' established by the
agreed upon findigs of fact, as outlined by Tr. Polish in oral argument, to entitle plaintiffs to relief, These 'de lure overtones' arise from such practices as Open Enrollment, Individual Intradistrict Transfer (or'busing'), location of new schools, placement of protable classrooms, failure to adopt proposed integration plans, and rescission of reso¬lutions to relocate 'portables'," 03For example, see Berry v, School District of the City of Benton harbor, (w D Mich 1970), unreported, where the federal district judge found that the teacher placement practice and tracking system were unconstitutional and that blacks were being deprived of an equal educational opportunity in racially imbalanced schools, yet also found that the racial imbalance was not created by the school board and that "there was no actual conscious intent on the part of the defendant Board of Education to perpetuate the situation which exists there," No desegregation plan was ordered.
