With the United States Supreme Court’s decision in Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 (1954), school districts intentionally segregating students on the basis of race violate the equal protection clause of the Fourteenth Amendment. School districts can also violate the Fourteenth Amendment if segregation in schools exists for reasons unrelated to state action but is found to be maintained by intentional state action. Keyes v. School District No. 1, 413 U.S. 189, 37 L.Ed.2d 548, 93 S.Ct. 2686, 2699 – 2700 (1973). When such intentional action occurs, courts have found that a dual system of schools based on race has been created. Once a dual system has been found, the burden is then focused on the school district to become "unitary," or to eliminate all vestiges of segregation.

Elements of Intentional Discrimination     To violate the Fourteenth Amendment, a school district must engage in intentional conduct. Keyes v. School District No. 1, 413 U.S. 189, 37 L.Ed.2d 548, 93 S.Ct. 2686, 2697 (1973). A racially segregated school, in and of itself, is not a constitutional violation. Columbus Board of Education v. Penick, 443 U.S. 449, 61 L.Ed.2d 666, 99 S.Ct. 2941 (1979). The Constitution does not require "any particular degree of racial balance or mixing." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 L.Ed.2d 554, 91 S.Ct. 1267, 1280 (1971). Rather, the violation occurs when the segregation was created or maintained by intentional government action. Keyes, 93 S.Ct. at 2700. Segregative intent can be shown by either direct or circumstantial evidence. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 50 L.Ed.2d 450, 97 S.Ct. 555 (1977). Evidence of discrimination includes (1) the discriminatory impact of the official action, (2) the historical background of the decision, (3) substantive and procedural departures from the normal course of making decisions, and (4) the administrative history of the decision, including minutes of meetings, reports, and testimony of decision-makers. 97 S.Ct. at 564 – 565. In determining whether a school district engaged in intentionally segregative conduct, a court will examine not only the racial and ethnic composition of the schools, but also "every facet of school operations — faculty, staff, transportation, extracurricular activities and facilities." Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 20 L.Ed.2d 716, 88 S.Ct. 1689, 1693 (1968). In more recent cases, quality of educational opportunities and achievement of minority students may also be a factor, if attributable to discriminatory intent. See Freeman v. Pitts, 503 U.S. 467, 118 L.Ed.2d 108, 112 S.Ct. 1430, 1446 (1992); Missouri v. Jenkins, 515 U.S. 70, 132 L.Ed.2d 63, 115 S.Ct. 2038, 2055 (1995) (Jenkins III). If a prima facie case of intentional segregation is established, the burden shifts to the school district to show "that the same decision would have resulted even had the impermissible purpose not been considered." Arlington Heights, 97 S.Ct. at 566 n.21. If a school district cannot disprove segregative intent, "it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition" of the schools. Keyes, 93 S.Ct. at 2699.

If a prima facie case of intentional segregation is established, the burden shifts to the school district to show "that the same decision would have resulted even had the impermissible purpose not been considered." Arlington Heights, 97 S.Ct. at 566 n.21. If a school district cannot disprove segregative intent, "it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition" of the schools. Keyes, 93 S.Ct. at 2699.

14.66 Court-Ordered Remedial Action     School districts have an affirmative duty to desegregate when they have been found to have intentionally segregated students on the basis of race. This constitutional violation is not remedied by simply halting intentional discriminatory acts and adopting racially neutral policies and practices; rather, courts are empowered to take such proceedings and enter such orders and decrees as are necessary to desegregate schools "with all deliberate speed." Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294, 99 L.Ed. 1083, 75 S.Ct. 753, 757 (1955). Thus, school boards must "dismantle" their dual school systems and eliminate the vestiges of prior intentional discrimination. Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 20 L.Ed.2d 716, 88 S.Ct. 1689, 1696 (1968). If a federal court finds a violation of the Fourteenth Amendment, its remedial power is extensive. As a court of equity, the federal court has the remedial power to restore victims of discriminatory conduct to the position they would have occupied in the absence of the conduct. Milliken v. Bradley, 418 U.S. 717, 41 L.Ed.2d 1069, 94 S.Ct. 3112 (1974) (Milliken I). The nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Milliken v. Bradley, 433 U.S 267, 53 L.Ed.2d 745, 97 S.Ct. 2749 (1977) (Milliken II). A desegregation remedy must (1) be tailored to the nature and scope of the constitutional violation, (2) be designed to restore the discrimination victims to the position they would have occupied had the discrimination not occurred, and (3) take into account the interest of state and local authorities in themselves managing the public schools. Milliken II, 97 S.Ct. at 2758. In Freeman v. Pitts, 503 U.S. 467, 118 L.Ed.2d 108, 112 S.Ct. 1430 (1992), and Jenkins III, the U.S. Supreme Court added that a court’s "end purpose is not only ‘to remedy the violation’ to the extent practicable, but also ‘to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.’ " Jenkins III, 115 S.Ct. at 2056, quoting Freeman, 112 S.Ct. at 1445

The remedial power of the federal courts in addressing a Fourteenth Amendment violation includes the authority to order remedial educational programs, teacher in service, guidance and counseling, and revised testing procedures as part of a school desegregation decree. Milliken II, 97 S.Ct. at 2755. It also includes the power to require changes in attendance center boundaries and compel busing. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 L.Ed.2d 544, 91 S.Ct. 1267, 1281 – 1283 (1971). A school district is entitled to a precise statement of its obligations under a desegregation order. Board of Education of Oklahoma City Public Schools, Independent School District No. 89 v. Dowell, 498 U.S. 237, 112 L.Ed.2d 715, 111 S.Ct. 630, 636 (1991). A court also has the power to order a school district to levy taxes in excess of state statutory limits to fund school desegregation plans. Missouri v. Jenkins, 495 U.S. 33, 109 L.Ed.2d 31, 110 S.Ct. 1651 (1990). But the court’s power does not include the ability to order school district staff salary increases in order to improve the district’s image and potentially attract students not currently attending the school. Jenkins III, 115 S.Ct. at 2055. Similarly, a court may not require improved academic achievement when that goal is unrelated to the effects of prior segregation or when external factors influencing student achievement are not the result of segregation. Id.

The federal supervision of a local school system is intended only as a temporary measure to remedy past discrimination. Dowell, 111 S.Ct. at 638. Once intentional racial discrimination has been eliminated and the effects of such discrimination have been eradicated, the court may declare a school district "unitary," thereby ending its supervision of the school district. Id. In fact, the court’s supervision must end when no more constitutional violations exist to justify continuing supervision. Id. A school district may be afforded either complete or partial relief from a desegregation order. In Freeman v. Pitts, 503 U.S. 467, 118 L.Ed.2d 108, 112 S.Ct. 1430, 1446 (1992), the Court held that a district court may withdraw judicial supervision with respect to discrete categories in which the school district has achieved compliance with a court-ordered desegregation plan. A district court need not retain active control over every aspect of school administration until a school district has demonstrated unitary status in all facets of its system. Id. The Supreme Court set forth three factors for a court to consider in determining whether complete or partial relief from a desegregation order is appropriate: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. Id. The Court further stated that a court should also consider the school board’s good-faith compliance with the desegregation decree since it was entered and whether the vestiges of past discrimination had been eliminated to the extent practicable. Id. The Court iterated the Green factors (see §14.65) of faculty, staff, transportation, extracurricular activities, and facilities as areas that must be assessed in determining whether the vestiges of segregation have been eliminated as far as practicable. 112 S.Ct. at 1446 – 1447. The school district bears the burden of showing that any current inequities are not traceable in a proximate way to the prior violation. 112 S.Ct. at 1447.

Racial Segregation: Statutory Violations     Various statutes impose sanctions for racial discrimination in the schools. Federal statutes such as Titles IV and VI of the 1964 Civil Rights Act, 42 U.S.C. §§2000c and 2000d and 42 U.S.C. §1983, are the chief statutory vehicles by which racial discrimination is redressed in the public schools. The Illinois State Constitution and various School Code provisions also safeguard the civil rights of public school students. Title VI, 42 U.S.C. §2000d, generally prohibits discrimination in federally assisted programs on the basis of race, color, or national origin: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. The 1964 Civil Rights Act places the responsibility for the enforcement for these funding restrictions on the United States Department of Education, Office for Civil Rights. The regulations effectuating the Act’s provisions are set out at 34 C.F.R. §100.1, et seq. Essentially, the Office for Civil Rights evaluates individual school districts receiving federal aid, requiring school authorities who have been found to engage in prohibited discrimination to formulate corrective programs or face loss of federal funds. Guardians Association v. Civil Service Commission of City of New York, 463 U.S. 582, 77 L.Ed.2d 866, 103 S.Ct. 3221 (1983), is one of the seminal decisions regarding Title VI. There, in a plurality decision, the Supreme Court held that a statutory violation of Title VI required the showing of discriminatory intent. The Court went on to say that the Department of Education could enforce regulations promulgated under Title VI when those regulations required a termination of funds to a federal fund recipient on a showing of discriminatory impact alone. A careful reading of Guardians reveals that the Justices were well aware of the anomaly that they created: Federal funds cannot be terminated to a recipient under the Title VI statute unless discriminatory intent is proved, but those funds can be terminated under the Title VI regulations on a showing of only discriminatory impact. Thus, the regulations promulgated under this statute reach farther than the statute itself. The Seventh Circuit, consistent with Guardians, has held that when a plaintiff seeks to proceed under Title VI regulations on a disparate impact theory, only prospective relief is available. Craft v. Board of Trustees of University of Illinois, 793 F.2d 140 (7th Cir. 1986). Compensatory relief can be obtained under Title VI only upon proof of intentional discrimination. 793 F.2d at 142. A plaintiff alleging a racial discrimination violation must make a prima facie showing that the alleged conduct has a disparate impact. New York Urban League Inc. v. State of New York, 71 F.3d 1031 (2d Cir. 1995). Once such a showing has been made, the burden shifts to the defendant to demonstrate the existence of "a substantial legitimate justification" for the allegedly discriminatory practice. 71 F.3d at 1036, citing Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). If the defendant sustains this burden, the plaintiff may still prove his case by demonstrating that other less discriminatory means would serve the same objective. 71 F.3d at 1036. Furthermore, statistical disputes must be sufficiently substantial that they raise an inference of causation. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 101 L.Ed.2d 827, 108 S.Ct. 2777, 2789 (1988). The enforceability of the Title VI regulations was further clarified in Alexander v. Sandoval, 532 U.S. 275, 149 L.Ed.2d 517, 121 S.Ct. 1511 (2001). The Court held that there is no private right of action to enforce the disparate impact regulations promulgated under Title VI. The Court questioned the propriety of the disparate impact regulations but assumed they were valid for purposes of its opinion as no challenge to the regulations had been made. However, the Court’s constriction of the remedial scope of Title VI is abundantly clear.Title VI regulations that previously restricted fund termination to the specific programs receiving federal funding (as interpreted by Grove City College v. Bell, 465 U.S. 555, 79 L.Ed.2d 516, 104 S.Ct. 1211 (1984)) have been rendered ineffective by the Civil Rights Restoration Act of 1987, Pub.L. No. 100-259 (1988). Federal funds received by any program in a school can be terminated upon a finding that the institution practices racial discrimination.Another statute, the Emergency School Aid Act of 1972 (Aid Act), 20 U.S.C. §1601 – 1619, reenacted as 20 U.S.C. §3191, et seq., is designed to provide federal financial assistance to aid in the desegregation of students and faculty in elementary and secondary schools. The Supreme Court in Board of Education of City School District of New York v. Harris, 444 U.S. 130, 62 L.Ed.2d 275, 100 S.Ct. 363 (1979), determined that discrimination that disqualified a school district for funding under the Aid Act is not discrimination in the Fourteenth Amendment sense. Under the Aid Act, as under other civil rights statutes, disparate or disproportionate impact alone is sufficient to establish a violation even in the absence of specific intent to discriminate.  14.70 State Statutes     Various School Code provisions help assure public school students of equal education opportunity, free of racial discrimination. Under §10-21.3 of the School Code, local school boards are [t]o establish one or more attendance units within the district. As soon as practicable, and from time to time thereafter, the board shall change or revise existing units or create new units in a manner which will take into consideration the prevention of segregation and the elimination of separation of children in public schools because of color, race or nationality. Section 10-22.5 of the School Code indicates that desegregation of the schools is to be the primary responsibility of the local school boards. Local school boards have the duty [t]o assign pupils to the several schools in the district; to admit non-resident pupils when it can be done without prejudice to the rights of resident pupils and provide them with any services of the school including transportation . . . but no pupil shall be excluded from or segregated in any such school on account of his color, race, sex, or nationality. Nothing herein shall be construed to permit or empower the State Board of Education to order, mandate or require busing or other transportation of pupils for the purpose of achieving racial balance in any school. Also, §22-19 of the School Code provides that upon receipt of a complaint endorsed by the lesser of fifty residents or ten percent of the district’s residents that a pupil has been impermissibly segregated from any school, the State Board may conduct a hearing to determine the merits of the complaint. If after a full hearing the State Board determines that a violation exists, "it shall request the Attorney General to apply to the appropriate circuit court for such injunctive or other relief as may be necessary to rectify the practice complained of." Also note School Code §10-20.12, which states that students shall have "the right and opportunity to an equal education." Section 22-11 provides minor criminal sanctions for school officials who practice racial discrimination. Section 18-12 conditions state aid on compliance with School Code requirements pertaining to nonsegregation of students on the basis of color, creed, race, sex, or nationality.

Charlotte-Mecklenburg school system encompasses City of Charlotte and surrounding Mecklenbeurg County-- 550 square miles. Came to US Supreme Court as the result of a desegregation plan by the district court affirmed by the circuit (federal appellate) court

Lower court judge ordered school board to come forward with plan for faculty & student deseg. Lower court judge imposed the Finger Plan Included satellite zones for junior high school under which inner-city African American students were assigned by attendance zones to nine outlying predominately white junior high schools thereby substantially desegregating every junior high in the system. Used zoning and pairing so that each school would range from 9% - 38% African American To what extent racial balance or racial quota may be used as an implement in a remedial order to correct a previously segregated system Whether every all-African American or all-white school must be eliminated as an indispensable part of a remedial process of desegregation What the limits are if any on the rearrangement of school districts and attendance zones as a remedial measure? What the limits are on the use of transportation facilities to correct state enforced racial school segregation

One of principle tools employed by school planners and by courts has been sometimes drastic gerrymandering to accomplish the transfer of African American students to white schools and white students to African American schools All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes But all things are not equal in a system in a system that has been deliberately constructed and maintained to enforce racial segregation The remedy may be administratively awkward, inconvenient and even bizarre and may impose burdens. But all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems. There are limits. The objective is to dismantle the dual school system. Racial neutral assignment plans proposed by school authorizes to a district court may be inadequate; such plans may fail to counteract continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation.

Bus transportation integral part of public education

Bus transportation integral part of public education

On behalf of all school children in Detroit District court found that government action on federal, state and local levels to establish and maintain pattern of residential segregation and that there is an interaction between residential patterns and racial composition of schools State defendants required to submit desegregation plan encompassing 3 county metropolitan area. Plans submitted would make Detroit school system more identifiably black so it must look beyond limits of Detroit school district for solution. School district lines are matters of political convenience and may not be used to deny constitutional rights. Court designated 53 of suburban districts and Detroit as the desegregation area and appointed a panel to submit a plan to achieve greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom would be substantially disproportionate to the overall pupil racial composition. Anything less would result in an all-black school system Court of appeals agreed Interdistrict remedy appropriate because state’s control all of the districts.

4 Justices dissented

Racial Discrimination Soldiers from the 101st Airborne Division escort African-American students to Central High School in Little Rock in Sept. 1957, after the governor of Arkansas tried to enforce segregation. Photo courtesy National Archives. Andrea Kaufman DePaul University

Both are violations of equal protection clause of 14th amendment: School districts intentionally discriminate on the basis of race Segregation exists for reasons unrelated to state action but is found to be maintained by intentional state action Little Rock High School, Arkansas

How do you prove segregation is created or maintained by school’s intentional conduct ?

the discriminatory impact of the official action, the historical background of the decision, substantive and procedural departures from the normal course of making decisions, and the administrative history of the decision, including minutes of meetings, reports, and testimony of decision-makers quality of educational opportunities and achievement of minority students Evidence of discrimination includes:

If a prima facie case of intentional segregation is established, The burden shifts to the school district to show "that the same decision would have resulted even had the impermissible purpose not been considered.“ If a school district cannot disprove segregative intent, "it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition" of the schools. Evidence of discrimination is not enough …

School boards must "dismantle" their dual school systems and eliminate the vestiges of prior intentional discrimination. A desegregation remedy must (1) be tailored to the nature and scope of the constitutional violation, (2) be designed to restore the discrimination victims to the position they would have occupied had the discrimination not occurred, and (3) take into account the interest of state and local authorities in themselves managing the public schools.

a Judge has a lot of power to supervise remediation What judge can do: teacher in service, guidance and counseling, revised testing procedures, & other remedial measures require changes in attendance center boundaries and compel busing. power to order a school district to levy taxes in excess of state statutory limits to fund school desegregation plans What judge cannot do: does not include the ability to order school district staff salary increases in order to improve the district’s image and potentially attract students a court may not require improved academic achievement when that goal is unrelated to the effects of prior segregation or when external factors influencing student achievement are not the result of segregation Thurgood Marshall , Lawyer in Brown vs. Board Supreme Court Justice, 1967-91

Achieving Unitary Status whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.

Other ways to fight & redress racial discrimination Federal Law Titles IV Civil Rights Act Title VI of Civil Rights Act State Law Illinois State Constitution Illinois School Code Drinking fountain on the Halifax County Courthouse (North Carolina) in April 1938. Library of Congress.

The Keys to the Kingdom Is Court-Ordered busing necessary to remedy past segregation? Is busing to eliminate a dual system of schooling the best solution for a school system? Second Federal Court order mandated Greenville County Schools to begin integration. Schools closed and initiated busing to achieve racial quotas mandated by the Court

Swann v. Charlotte-Mecklenburg Board of Education (1971) Total 84,000 students Total 107 schools 29% (24,000) of students African American 14,000 of the African American students attended 21 schools that were 99% African American. Is there a constitutional problem?

Is the Finger Plan constitutional? Charlotte Mecklenburg County Image of original busing plan drafted by school district officials

To what extent racial balance or racial quota may be used to correct a previously segregated system? OK to have racial balance because There is no requirement that every school reflect racial composition of system as a whole Dual school system until 1969 Ratios are used as a starting point; not fixed

Is it okay to have one-race schools?

Is it okay to have System with history of segregation Presumption against schools that are disproportionate in racial composition Burden on schools to show that racial composition no result of present or past discriminatory action one-race schools?

Should judge be able to rearrange school district attendance right to attend your neighborhood school? zones? constitutional Is there a

Should there be limits are on the use of transportation to correct state enforced racial school segregation? Before - average ride of 15 miles After - average ride of approx 45 mile

Should there be limits are on the use of transportation to correct state enforced racial school segregation? Assignment of children to school nearest home doesn’t dismantle dual system Okay as long as the time and distance of travel does not pose a risk to the health of the children or significantly impinge on educational process

Milliken v. Bradley (1974) Majority held not constitutional Only reason going to suburbs is because Detroit doesn’t have racial balance No showing that racially discriminatory acts of state or local school districts caused interdistrict segregation DETROIT, MI

Milliken v. Bradley (1974) Dissent of Thurgood Marshall State is responsible for White Flight to the suburbs State has centralized control Ironically…the Court’s answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future… Modern-day Detroit since “white flight”