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TITLE Keyes et al. v. School District No. 1, Denver,Colorado, et al. Supreme Court of the United States:Syllabus; Slip Opinion. Argued October 12,1972--Decided June 21, 1973.

INSTITUTION Supreme Court of the U. S., Washington, D.C.PUB DATE 21 Jun 73NOTE 77p.

EDRS PRICE MF-$0.65 HC-$3.29DESCRIPTORS Civil Rights; Cefacto Segregation; Dejure

Segregation; Eduf;ational Cprortunities; EqualEducation; Inner City; *Integration Litigation;Integration Studies; *Neighborhood School Policy;Racial Integration; *School Integration; SchoolSegregation; *Supreme Court Litigation; Urban.Schools

IDENTIFIERS *Colorado

ABSTRACTPetitioners sought desegregation of the Park Hill

area schools in Denver, and, upon securing an order of the DistrictCourt directing that relief, expanded their suit to securedesegregation of the remaining schools of the Denver school district,particularly those in the core city area. The District Court deniedthe further relief, holding that the deliberate racial segregation ofthe Park Hill Schools did not prove a like segregation policyaddressed specifically to the core city schools and requiringpetitioners to prove de jure segregation for each area that theysought to have desegregated. The court nevertheless found that thesegregated core city schools were educationally inferior to "white*schools elsewhere in the district and ordered the respondents toprovide substantially equal facilities for those schools. This latterrelief was reversed by the Court of Appeals. The Supreme Court heldthat: f1) the District Court, for purposes of defining a *segregated"core city school, erred in not placing Negroes and Hispanos in thesame category and (2) the courts below did not apply the correctlegal standard in dealing with petitioners' contention thatrespondent School Board had the policy of deliberately segregatingthe core city schools. ["Elementary School Boundaries, September1967,1' a map cf School District No. 1, has been deleted from thisdocument due to poor reproducibility.] (Author/JM)

FILMED FROM BEST AVAILABLE COPYU S DEPARTMENT OF HEALTH

EDUCATION WELFARENATIONAL INSTITUTE OF

EDUCATIONTHIS DOCUVENT DiAS BEE, REPROCi DUCE() EXACTLY QECE Vf cROARImE PERSON OR ::::...ANtZATONOR.CoN

Slip Opinion POINTS Or itEh ON OPINIONSSTATED DO NOT NECESSARILY REFRESENT Or rgEIAL NATIONAL INSTITUTE Orir- EDUCATION POSITION OR POLICY

CO NOTE: Where It Is feasible, a syllabus (headnote) will be re-, rs, leased, as hi being done in connection with this case. at the timethe opinion is issued. The syllabus constitutes no part of the opinionof the Court but has been prepared by the Reporter of Decisions forthe convenience of the reader. See United States Y. Detroit LumberCo., 200 V.S. 321. 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

KEY ES ET AL. V. SCHOOL DISTRICT NO. 1.DENVER, COLORADO. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FORTHE TENTH CIRCUIT

No. 71-507. Argued October 12. 1972Decided Junk. 2L 1973

Petitioners sought desegregation of the Park Hill area schools inDenver and, upon securing an order of the District Court directingthat relief, expanded their suit to secure desegregation of theremaining schools of the Denver school district, particular's thosein the core city area. The District Court denied the furtherrelief, holding that the deliberate racial segregation of the ParkHill schools did net prove a like segregation policy addreedspecifically to the core city schools and requiring petitioners toprove de jure segregation for each area that they sought to havedesegregated. That court nevertheless found that the segregatedcore city schools were educationally inferior to "white" schoolselsewhere in the distric and. relying on Plessy v. Ferguson, 163U S. 537. ordered the respondents to provide substant;ally equalfacilities for those schools. This latter relief was reversed bythe Court of Appeals, which affirmed the Park Hill ruling andagreed that Park Hill segregation, even though deliberate, provednothing regarding an overall policy of segregation. Held:

1. The District Court, for purposes of defining a "segregated"core city school, erred in not placing Negroes and Hispanos inthe same category since both groups suffer the same educationalinequities when compared with the treatment afforded Anglostudents. Pp. 5-8.

2. The courts below did not apply the correct legal standardin dealing with petitioners' contention that respondent SchoolBoard had the policy of deliberately segregating the core cityschools. Pp. 8-23.

(a) Proof that the school authorities have pursued an inten-tional segregative policy in a substantial portion of the schooldistrict will support a finding by the trial court of the existence

n KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO.

Syllabus

of a dual system, absent a showing that the district is dividedinto cinarly unrelated units. Pp. 10-12.

(b) On remand the District Court should decide initiallywhether respondent School Board's deliberately segregative policyrespecting the Park Hill schools constitutes the whole Denverschool district a dual school system. Pp. 13-15.

(c) Where, as in this case, a policy of intentional segregationhas been proved with respect to a significant portion of the schoolsystem, the burden is on the school authorities (regardless ofclaims that their "neighborhood school policy" was racially ne tral)to prove that their actions as to other segregated schools in thesystem were not likewise me 'voted by a segregative intent.Pp. 17-22.

445 F. 2d 990, modified and remanded.

BRE:NsoN,, J., delivered the opinion of the Court, in which Dorm-LAS, STEWART, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS,

J., filed a separate opinion. BURGER, C. J., concurred in the result.PoWELL, J., filed an opinion concurring in part and di&.enting inpart. REHNQUIST, J., filed a dissenting opinion. WHITE, J.,. tookno part in the decision of the case.

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


No. 71-507

Wilfred Keyes et al..Petitioners,

v.

School District No. 1. Denver,Colorado, et al.

[June 21, 1973]

MR. JUSTICE BRENNAN delivered the opinion of theCourt.

This school desegregation case concerns the Denver,Colorado, school system. That system has never beenoperated under a constitutional or statutory provisionthat mandated or permitted racial segregation in publiceducation.' Rather, the gravamen of this action,brought in June 1969 in the District Court for theDistrict of Colorado by parents of Denver school chil-dren, is that respondent School Board alone, by use ofvarious techniques such as the manipulation of studentattendance zones, school site selection and a neighbor-hood school policy, created or maintained racially orethnically (or both racially and ethnically) segregatedschools throughout the school district, entitling peti-tioners to a decree directing desegregation of the entireschool district.

The boundaries of the school district are co-terminuswith the boundaries of the City and County of Denver.

On Writ of Certiorari tothe United StatesCourt of Appeals forthe Tenth Circuit.

1 To the contrary,, Art. IX, § 8, of the Colorado Constitution ex-pressly prohibits "any classification of pupils . . . on account ofrace or color." As early as 1927, the Colorado Supreme Court heldthat a Denver practice of excluding black students from school pro-grams at Manual High School and Morey Junior High School vio-lated state law. Jones v. Newlon, 81 Cola. 25, 253 P. 386 (1927).

2 KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO.

There were in 1969 119 schools 2 with 96,580 pupilsin the school system. In early 1969, the respondentSchool Board adopted three resolutions, Resolutions 1520,1524, and 1531, designed to desegregate the schools inthe Park Hill area in the northeast portion of the city.Following an election which produced a Board majorityopposed to she resolutions, the resolutions were rescindedand replaced with a voluntary student transfer program.Petitioners then filed this action, requesting an injunc-tion against the rescission of the resolutions and anorder directing that the respondent School Board de-segregate and afford equal educational opportunity "forthe School District as a whole." App., p. 32a. TheDistrict Court found that by the construction of a new,relatively small elementary school, Barrett, in the mid-dle of the Negro community west of Park Hill, by thegerrymandering of student attendance zones, by the useof so-called "optional zones," and by the excessive useof mobile classroom units, among other things, the re-spondent School Board had engaged over almost a decadeafter 1960 in an unconstitutional policy of deliberateracial segregation with respect to the Park Hill schools.'The court therefore ordered the Board to desegregatethose schools through the implementation of the threerescinded resolutions. 303 F. Stipp. 279 (1969); 303 F.Supp. 289 (1969).

Segregation in Denver schools is not limited, however,to the schools in the Park Hill area, and not satisfiedwith their success in obtaining relief for Park Hill, peti-

2 There are 92 elementary schools, 15 junior high schools, 2 junior-senior high schools, and 7 senior high schools. In addition, the Boardoperates an Opportunity School, a Metropolitan Youth EducationCenter, and an Aircraft Training Facility.

3 The so-called "Park Hill schools" are Barrett, Stedman, Hallett,Smith, Philips, and Park Hill Elementary Schools; and Smiley JuniorHigh School. East High School serves the area but is located out-side of it. (See appendix.)

KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 3

tioners pressed their prayer that the District Court orderdesegregation of all segregated schools in the city ofDenver, particularly the heavily segregated schools inthe core city area.' But that court concluded that itsfinding of a purposeful and systematic program of racialsegregation affecting thousands of students in thePark Hill area did not, in itself, impose on theSchool Board an affirmative duty to eliminate segrega-tion throughout the school district. Instead, the courtfractionated the district and held that petitioners mustmake a fresh showing of de jure segregation in each areaof the city for which they seek relief. Moreover, theDistrict Court held that its finding of intentional segrega-tion in Park Hill was not in any sense material to thequestion of segregative intent in other areas of the city.Under this restrictive approach, the District Court con-cluded that petitioners' evidence of intentionally dis-criminatory School Board action in areas of the districtother than Park Hill was insufficient to "dictate the con-clusion that this is de jure segregation which calls foran all-out effort to desegregate. It is more like de factosegregation, with respect to which the rule is that thecourt cannot order desegregation in order to provide abetter balance." 313 F. Supp. 61, 13 (1970).

Nevertheless, the District Court went on to hold thatthe proofs established that the segregated core cityschools were educationally inferior to th- predomi antly"white" or "Anglo" schools in other parts of the dis-trictthat is, "separate facilities . . . unequal in thequality of education provided." Id., at 83. Thus, thecourt held that, under the doctrine of Plessy v. Ferguson,

The so-called "core city schools" which are said to be segregatedare Boulevard, Bryant-Webster, Columbine, Crofton, Ebert, Elm-wood, Elyria, Fairmont, Fairview, Garden Place, Gilpin, Greenlee,Harrington, Mitchell, Smedley, Swansea, Whittier, Wyatt, and Wy-man Elementary Schools; Baker, Cole, and Morey Junior HighSchools; and East, West, and Manual High Schools. (See appendix.)


163 U. S. 537 (1896), respondent School Board constitu-tionally "must at a minimum . . . offer an equal educa-tional opportunity," ibid., and, therefore, although all-outdesegregation "could not be decreed, . . . the only feasibleand constitutionally acceptable program-the only pro-gram which furnishes anything approaching substantialequality-is a system of desegregation and integrationwhich provides comp:: satory education in an integratedenvironment." 313 F. Supp. 90, 96 (1970). The Dis-trict Court then formulated a varied remedial plan to thatend which was incorporated in the Final Decree.5

Respondent School Board appealed, and petitionerscross-appealed, to the Court of Appeals for the TenthCircuit. That court sustained the District Court's find-ing that the Board engaged in an unconstitutional policyof deliberate racial segregation with respect to the ParkHill schools and affirmed the Final Decree in that respect.As to the core city schools, however, the Court of Ap-peals reversed the legal determination o the District

5 The first of the District Court's four opinions, 303 F. Supp. 279,was filed July 31, 1969, and granted petitioners' application for apreliminary injunction. The second opinion, 303 F. Supp. 289, wasfiled August 14, 1969, and made supplemental findings and con-clusions. The third opinion, 313 F. Supp. 61, filed March 21, 1970,was the opinion on the merits. The fourth opinion, 313 F. Supp. 90,was on remedy and was filed May 21, 1970. The District Courtfiled an unreported opinion on October 19, 1971, in which relief waz,extended to Hallett and Stedman Elementary Schools which werefound by the court in its July 31, 1969, opinion to be purposefullysegregated but were net included within the scope of the three 1969Board resolutions. The Court of Appeals filed five unreported opin-ions: on August 5, 1969, vacating preliminary injunctions; OD Au-gust 27, 1969, staying preliminary injunction; on September 15,1969, on motion to amend stay; on October 17, 1969, denying Mo-tions to Dismiss; and on March 26, 1971, granting stay. MR. Jus-TICE BRENNAN, on August 29, 1969, filed an opinion reinstating pre-liminary injunction, 396 U. S. 1215 (1969), and on Ap: 26, 1971,this Court entered a per curiam order vacating the Court of Appeals'stay, 402 U. S. 182 (1971).


Court that those schools were maintained in violationof the Fourteenth Amendment because of the unequaleducational opportunity afforded, and therefore set asideso much of the Final Decree as required desegregationand educational improve/mut programs for those schools.445 F. 2d 990 (1971). In reaching tl- Pt result, the Courtof Appeals also disregarded respondent School Board'sdeliberate racial segregation poliey respecting the ParkHill schools and accepted the District Court's findingthat. petitioners had not proved that respondent had alike policy addressed specifically to the core city schools.

We granted petitioners' petition for certiorari to re-view the Court of Appeals' judgment insofar as it re-versed that part of the District Court's Final Decree aspertained to the core city schools. 404 U. S. 1036 (1972).The judgment of the Court of Appeals in that respectis modified to vacate instead of reverse the Final Decree.The respondent School Board has cross-petitioned forcertiorari to review the judgment of the Court of Appealsinsofar as it affirmed that part of the District Court'sFinal Decree as pertained to the Park Hill schools.School District No. 1, etc. v. Wilfred Keyes et al., No.71-572. The cross-petition is denied.

I

Before turning to the primary question we decide today,a word must be said about the District Court's methodof defining a "segregated" school. Denver is a tri-ethnic, as distinguished from a bi-racial, community.The overall racial and ethnic composition of the Denverpublic schools is 66% Anglo, 14% Negro and 20% His-pano.° The District Court, in assessing the question of

The parties have used the terms "Anglo," "Negro," and "His-pano" throughout the record. We shall therefore use those terms.

"Hispano" is the term used by the Colorado Department of Edu-cation to refer to a person of Spanish, Mexican, or Cuban heritage.Colorado Department of Education, Human Relations in Colorado,


de jure segregation in the core city schools, prelimi-narily resolved that Negroes and Hispanos should notbe placed in the same category to establish thr, segre-gated character of a school. 313 F. Supp., at 69.Later, in determining the schools that were likely toproduce an inferior educational opportunity, the courtconcluded that a school would be considered inferioronly if it had "a concentration of either Negro or His-pano students in the general area of 70 to 75 percent."Id., at 77. We intimate no opinion whether the Dis-trict Court's 70 to 75% requirement was correct. TheDistrict Court used those figures to signify educationallyinferior schools, and there is no suggestion in the recordthat those same figures were or would be used to define a"segregated" school in the de jure context. What is or isnot a segreg chool will necessarily depend on the factsof each par,. case. In additon to the racial and eth-nic composition of a school's student body, other factorssuch as the racial and ethnic composition of faculty andstaff and the community and administration attitudes to-ward the school must be taken into consideration. TheDistrict Court has recognized these specific factors as ele-ments of the definition of a "segregated" school, id., at74, and we may therefore infer that the court will con-sider them again on remand.

We conclude, however, that the District Court erred

A Historical Record 203 (1968). In the Southwest, the "His-panos" are more commonly referred to as "Chicanos" or "Mexican-Americans."

The more specific racial and ethnic emposition of the Denverpublic schools is as follows: .

Anglo Negro HispnnoPupils No. % No. % No. %

Elementary 33,719 61.8 8,297 152 12,570 23.0Junior High 14,848 68.7 2,893 13.4 3,858 17.9Senior High 14,852 72.8 2,442 12.0 3,101 152

Total 63,419 65.7 13,632 14.1 19,529 202


in separating Negroes and Hispanos for purposes ofdefining a "segregated" school. We have held that His-panos constitute an identifiable class for purposes ofthe Fourteenth Amendment. Hernandez v. Texas, 347U. S. 475 (1954). See also United States v. Texas Edu-cation Agency, 467 F. 2d 848 (('A5 1972) (en bane)Cisneros v. Corpus Christi Independent School District.467 F. 2d 142 (CM 1972) ( e bane); Alvarado v. ElPaso Independent School District, 445 F. 2d 1011 (('A51971); Soria v. Oxnard School District, 328 F. Supp.155 (CD Cal. 1971); Romero v. ll'eakley, 226 F. 2d 399(CA9 1955). Indeed, the District Court recognized thisin classifying predominantly Hispano schools as "segre-gated" schools in their own right. But there is alsomuch evidence that in the Southwest Hispanos andNegroes have a great many things in common. TheUnited States Commission on Civil Rights has recentlypublished two Reports on Hispano education in theSouthwest.' Focusing on students in the Stater, of Ari-zona. california, Colorado. New Mexico. and Texas, theCommission concluded that Hispanos suffer from thesame educational inequities as Negroes and AmericanIndians.' In fact, the District Court itself recognizedthat "[o] ne of the things which the Hispano has in com-mon with the Negro is economic and cultural deprivationand discrimination." 313 F. Supp., at 69.. This is agree-ment that, though of different origins, Negroes and His-

7 United States Commission on Civil Rights, Mexican-AmericanEducation Study, Ethime Isolation of Mexican-Americans in thePublic Fehools of the Southwest (April 1971); United States Com-mission on Civil Rights, Mexican American Education Series, TheUnfinished Education (October 1970).

8 The Comnussion's first Report, on p. 41, summarizes its findings:"The basic finding of this report is that minority students in the

SouthwestMexican-Americans, blacks, American Indiansdo notobtain' the benefits of public education at a rate equal to that oftheir Anglo classmates."


pans in Denver suffer identical discrimination intreatment when compared with the treatment affordedAnglo students. In that circumstance, we think peti-tioners are entitled to have schools with a combinednredominance of Negroes and Hispanos included in thecategory of "segregated" schools.

IIIn our view, the only other question that requires our

decision at this time is that subsumed in Question 2of the Questions Presented by petitioners, na nely,whether the District Court and the Court of Appealsapplied an incorrect legal standard in addressing peti-tioners' contention that respondent School Board en-gaged in an unconstitutional policy of deliberatesegregation in the core city schools. Our conclusionis that those courts did not apply the correct standardin addressing that contention!

Petitioners apparently concede for the purposes of thiscase that in the case of a school system like Denver's,where no statutory dual system has ever existed, plaintiffsmust prove not only that segregated schooling exists butalso that it was brought about or maintained by inten-tional state action. Petitioners proved that for almost adecade after 1960 respondent School Board had engaged inan unconstitutional policy of deliberate racial segregationin the Park Hill schools. Indeed, the District Courtfound that "[bletween 1960 and 1969 the Board's policieswith respect to those northeast Denver schools show an

°Our Brother REnNqutyr argues in dissent that the Court some-how transgresses the "two-court" rule. Infra, p. 11. But at thisstage, we have no occasion to review the factual findings concurredin by the two courts below. Cf. Neil v. Biggers, 409 U. S. 188(1972). We address only the question whether those courts ap-plied the correct legal standard in deciding the case as it affects thecore city schools.


undeviating purpose to isolate Negro students" in segre-gated schools "while preserving the !tnglo .faracter of[other] schools." 303 F. :., at 294. This findingdid not relate to a.. insubstantial or trivial fragmentof the school system. On the contrary. respondentSchool Board was found guilty of following a deliberatesegregation policy at schools attended, in 1969, by37.69% of Denver's total Negro school population, in-cluding one-fourth of the Negro elementary pupils, overtwo-thirds of the Negro 'unior high pupils, and overtwo-fifths of the Wegro high school pupils.'" In addition,

1" The Be ird was found guilty of intentionally m.gregatv acts Ofone kind or :mot her with respect to the schools listed be Inv.. (As toCole and Eat t, the contius..,,n rests on the rese6sion of the -soi;:t ions.)

PUPILS 1967 -196:1Anglo Negro Hispano Total

Barrett 1 410 432Stedman 27 634 25 686Hallett 76 634 41 75:Park Hill 684 223 56 963Philips 307 203 555Smiley Jr. High 360 1,112 4 1,546Cole Jr. High 46 884 289 1,1'19East High 1,409 1,039 175 2,624

Subtotal Elementary 1,095 2,104 179 3,378Subtotal Jr. high 406 1,996 363 2,765Subtotal Sr. High 1,409 1,039 175 2,623

Total 2,910 5,139 717 8,766The total Negro school enrollment in 1968 was:Elementary 8,297Junior High 2.8.93Senior High 2,442

Thus, the above-mentionedElementary 2536% of allJunior High 68.99% of allSenior High 42.55% of all

Total 37.69% of all

schools included:Negro elementary pupilsNegro junior high pupilsNegro senior high pupilsNegro pupils

I,


there was uncontroverted evidence that teachers andstaff had for years been assigned on a minority teacher-to-minority school basis throughout the school system.Respondent argues, however, that a finding of state-imposed segregation as to a substantial portion of theschool system can be viewed in isolation from the restof the district, and that even if state-imposed segregationdoes exist in a substantial part of the Denver schoolsystem, it does not follow that the District Court couldpredicate on that fact a finding that the entire schoolsystem is a dual system. We do not agree. We havenever suggested that plaintiffs in school desegregationcases must bear the burden of pr9ving the elements ofde jure segregation as to each and every school or eachand every student within the school system. Rather,we have held that where plaintiffs prove that a currentcondition of segregated schooling exists within a schooldistrict where a dual system was compelled or authorizedby statute at the time of our decision in Brown v. Boardof Education, 347 U. S. 483 (1954) (Brown I), theState automatically assumes an affirmative duty "toeffectuate a transition to a racially nondiscriminatoryschool system," Brown v. Board of Education, 349 U. S.294, 301 (1955) (Brown II), see also Green v. CountySchool Board, 391 U. S. 430, 437-438 (1968), that is,to eliminate from the public schools within their schoolsystem "all vestiges of state-imposed segregation."Swann v. Charlotte-Mecklenburg Board of Education,402 U. S. 1, 15 (1971)."

Our Brother REitsQuisT argues in dissent that Brown v. Boardof Education did not impose an "affirmative duty to integrate" theschools of a dual school system but was only a "prohibition againstdiscrimination" "in the sense that the assignment to a child of aparticular school is not made to depend on his race .. . ." Infra,p. 5. That is the interpretation of Brown expressed 18 years agoby a three-judge court in Briggs v. Elliott, 132 F. Supp. 776, 777


This is not a case. however, where a statutory disystem has ever existed. Nevertheless. where plaintitisprove that the school authorities have carried out a sys-tematic program of segregation affecting a substantial por-tion of the students. schools. teachers and facilities withinthe school system. it is only common sense to concludethat there exists a predicate for a finding of the existenceof a dual school system. Several considerations supportthis conclusion. First, it is obvious that a practice ofconcentrr. sing Negroes in certain stthools by structuringattendan. e zones or designating "feeder" schools en thebasis of race has the reciprocal effect of keeping othernearby schools predominantly white." Similarly, thepractice of building a schoolsuch as the Barrett Ele-mentary School in this caseto a certain sin and in acertain location. "with conscious knowledge that it would

(1955): "The Constitution. in other words. does not require inte-gration. It merely forbids discrimination." But Green v. CountySchool Board. 391 U. S. 430. 438 (1968). rejected that interpretationinsofar as Green expressly held that "School boards . . . operatingstate-compelled dual systems were nevertheless clearly charged [byBrown II] with the affirmative duty to take whatever steps mightbe necessary to convert to a unitary system in which racial dis-crimination would be eliminated root and branch." Green remainsthe governing principle. Alexander v. Holmes County Board ofEducation, 396 U. S. 19 (1969): Swann v. Charlotte-MecklenburgBoard of Education, 402 U. S. 1, 15 (1971). See also Kelley v.Metropolitan County Board of Education, 317 F. Supr. 980, 984(1970).

12 As a former School Board President who testified for the re-spondents put it: "Once you change the boundary of any one school,it is affecting all the schools, . . ." Testimony of Mrs. Lois HeathJohnson on direct examination. App., p. 951a-952a.

Similarly, Judge Wisdom has recently stated:

"Infection at one school infects all schools. To take the most simpleexample, in a two school system, all blacks at one school mains allor almost all whites at the other." United States v. Texas Educa-tion Agency, 467 F. 2d 848, 888 (CA5 1972).

12 KEYES L. SCHOOL DISTRICT NO. 1, DENVER, COLO.

be a segregated school." 303 F. Supp.. at 285. has a sub-stantial reciprocal effect on the racial composition of othernearby schools. So also. the use of mobile classrooms, thedrafting of student transfer policies, the transportation ofstudents, and the assignment of faculty and staff, on ra-cially identifiable bases, have the clear effect of earmarkingschools according to their racial composition, and this, inturn, together with the elements of student assignmentand school construction, may have a profound reciprocaleffect on the racial composition of residential neighbor-hoods within a metropolitan area, thereby causing fur-ther racial concentration within the schools. Werecognized this in Swann. when we said:

"They [school authorities] must decide ques-tions of location and capacity in light of popula-tion growth, finances, land values, site availability.through an almost endless list of factors to beconsidered. The result of this will be a decisionwhich, when combined with one technique oranother of student assignment, will determine theracial composition of the student body in eachschool in the system. Over the long sun, the con-sequences of the choices will be far reaching.People gravitate toward school facilities, just asschools are located in response to the needs ofpeople. The location of schools may thus influ-ence the patterns of residential development of ametropolitan area and have important impact oncomposition of inner-city neighborhoods.

"In the past, choices in this respect have beenused as a potent weapon for creating or maintaininga state-segregated school system. In addition tothe classic pattern of building schools specificallyintended for Negro or white students, school author-ities have sometimes, since Brown, closed schoolswhich appeared likely to become racially mixed


through changes in neighborhood residential pat-terns. This was sometimes accompanied by build-ing new schools in the areas of white suburbanexpansion farthest from Negro population centersin order to maintain the separation of the raceswith a minimum departure from the formal prin-ciples of 'neighborhood zoning.' Such a policy doesmore than simply influence the short-run compo-sition of the student body of a new school. Itmay well promote segregated residential patternswhich, when combined with 'neighborhood zoning,'further lock the school system into the mold ofseparation of races. Upon a proper showing a dis-trict court may consider this in fashioning a remedy."402 U. S., at 20-21.

In short, common sense dictates the conclusion thatracially inspired school board actions have an impactbeyond the particular schools that are the subjectsof those actions. This is not to say, of course, thatthere can never be a case in which the geographicalstructure of or the natural boundaries within a schooldistrict may have the effect of dividing the district intoseparate, identifiable and unrelated units. Such a de-termination is essentially a question of fact to be resolvedby the trial ccurt in the first instance, but such casesmust be rare. In the absence of such a determination,proof of state-imposed segregation in a substantial por-tion of the district will suffice to support a finding bythe trial court of the existence of a dual system. Ofcourse, where that finding is made, as in cases involvingstatutory dual systems, the school authorities have anaffirmative duty "to effectuate a transition to a raciallynondiscriminatory school system." Brown II, supra,at 301.

On remand, therefore, the District Court should de-cide in the first instance whether respondent School


Board's deliberate racial segregation policy with respectto the Park Hill schools constitutes the entire Denverschool system a dual school system. We observe thaton the record now before us there is indication thatDenver is not a school district which might be dividedinto separate, identifiable and unrelated units. The Dis-trict Court stated, in its summary of findings as to thePark Hill schools, that there was "a high degree of inter-relationship among these schools, so that any action bythe Board affecting the racial composition of one wouldalmost certainly have an effect on the others." 303 F.Supp., at 294. And there was cogent evidence that theultimate effect of the Board's actions in Park Hill wasnot limited to that area: the three 1969 resolutionsdesigned to desegregate the Park Hill schools changedthe attendance patterns of at least 29 schools attendedby almost one-third of the pupils in the Denver schoolsystem." This suggests that the official segregation inPark Hill affected the racial composition of schoolsthroughout the district.

On the other hand, although the District Court didnot state this or indeed any reason why the Park Hillfinding was disregarded when attention was turned tothe core city schoolsbeyond saying that the ParkHill and core city areas were in its view "different"the areas, although adjacent to each other, are separatedby Colorado Boulevard, a six-lane highway. From therecord, it is difficult to assess the actual significance ofColorado Boulevard to the Denver school system. TheBoulevard runs the length of the school district, but atleast two elementary schools, Teller and Steck, have at-tendance zones which cross the Boulevard. Moreover, theDistrict Court, although referring to the Boulevard as "anatural dividing line," 303 F. Supp., at 282, did not feel

"See the chart at 445 F. 2d 1008-1009, which indicates that31,767 pupils attended the schools affected by the resolutions.


constrained to limit its consideration of de jure segrega-tion in the Park Hill area to those schools east of theBoulevard. The court found that by building BarrettElementary School west of the Boulevard and by estab-lishing Colorado Boulevard as the eastern boundary ofthe Barrett attendance zone, the Board was able tomaintain for a number of years the Anglo character ofthe Park Hill schools. This suggests that ColoradoBoulevard is not to be regarded as the type of barrierthat of itself could confine the impact of the Board's ac-tions to an identifiable area of the school district, perhapsbecause a major highway is generally not such an effectivebuffer between adjoining areas. Cf. Davis v. Board ofSchool Commissioners of Mobile County, 402 U. S. 33(1971). But this is a factual question for resolution bythe District Court on remand. In any event, inquirywhether the District Court and the Court of Appealsapplied the correct legal standards in addressing peti-tioners' contention of deliberate segregation in the corecity schools is not at an end even if it be true thatPark Hill may be separated from the rest of the Denverschool district as a separate, identifiable and .inrelatedunit.

IIIThe District Court proceeded on the premise that the

finding as to the Park Hill schools was irrelevant to theconsideration of the rest of the district, and began itsexamination of the core city schools by requiring thatpetitioners prove all of the essential elements of de juresegregationthat is, stated simply, a current conditionof segregation resulting from intentional state actiondirected specifically to the core city schools." The

"Our Brother REHNQUIST argues in dissent that the DistrictCourt did take the Park Hill finding into account in addressing thequestion of alleged de jure segregation of the core city schools.Infra, p. 9. He cites the following excerpt from a footnote to the

l

A


segregated character of the core city schools couldnot be and is not denied. Petitioners' proof showedthat at the time of trial 22 of the schools in the corecity area were less than 30% in Anglo enrollment and11 of the schools were less than 10% Anglo." Peti-tioners also introduced substantial evidence demon-strating the existence of a disproportionate racial andethnic composition of faculty and staff at these schools.

On the question of segregative intent, petitionerspresented evidence tending to show that the Board,through its actions over a period of years, intentionallycreated and maintained the segregated character of thecore city schools. Respondents countered this evidenceby arguing that the segregation in these schools is theresult of a racially neutral "neighborhood school policy"and that the acts of which petitioners complain are expli-cable within the bounds of that policy. Accepting theSchool Board's explanation, the District Court and theCourt of Appeals agreed that a finding of de jure segrega-tion as to the core city schools was not permissible since

District Court's opinion of March 21, 1970, 313 F. Supp., at 74-75:"Although past discriminatory acts may not be a substantial factorcontributing to present segregation, they may nevertheless be pro-bative on the isgie of the segregative purpose of other discriminatoryacts which are in fact a substantial factor in causing a presentsegregated situation " But our Brother REHNQUIST omits the restof the footnote: "Thus, in part I of this opinion, we discussed thebuilding of Barrett, boundary changes and the use of mobile unitsas they relate to the purpose for the rescission of Resolutions 1520,,1524 and 1531." Obviously, the District Court was carefully limit-ing the comment to the consideration being given past discriminatoryacts affecting the Park Hill schools in assessing the causes of currentsegregation of those schools.

15In addition to these 22 schools, see 313 F. Supp., at 78, twomore schools, Elyria and Smedley Elementary Schools, became lessthan 30% Anglo after the District Court's decision on the merits.These two schools were thus included in the list of segregated schools.313 F. Supp., at 92.

KEYES v. SCHOOL DISTRICT NO 1, DENVER, COLO. 17

petitioners had failed to prove "( 1) a racially discrimi-natory purpose and (2) a casual relationship between theacts complained of and the racial imbalance admittedlyexisting in those schools." 445 F. 2d, at 1006.. This as-sessment of petitioners' proof was clearly incorrect.

Although petitioners had already proved the exist-ence of intentional school segregation in the Park Hillschools, this crucial finding was totally ignored whenattention turned to the core city schools. Plainly, afinding of intentional segregation as to a portion of aschool system is not devoid of probative value in assess-ing the school authorities' intent with respect to otherparts of the same school system.. On the contrary,where, as here, the case involves one school board,a finding of intentional segregation on its part in oneportion of a school system is highly relevant to theissue of the board's intent with respect to other segre-gated schools in the system. This is merely an applica-tion of the well-settled evidentiary principle that "theprior doing of other similar acts, whether clearly apart of a scheme or not, is useful as reducing the possi-bility that the act in question was done with innocentintent." II Wigmore, Evidence 200 (3d ed. 1940)."Evidence that similar and related offenses were com-mitted . , tend[s] to show a consistent pattern of con-duct highly relevant to the issue of intent." Nye &Nissen v, United States, 336 U. S. 613, 618 (1949).Similarly, a finding of illicit intent as to a meaningfulportion of the item under consideration has substantialprobative value on the question of illicit intent as tothe remainder. See, for example, the cases cited inII Wigmore, supra, at 301-302. And "[t]he foregoingprinciples are equally as applicable to civil cases as tocriminal cases, , . ." II Wigmore, supra, at 300 Seealso McCormick, Evidence 329 (1954),


Applying these principles in the special context ofschool desegregation cases, we hold that a finding ofintentionally segregative school board actions in a mean-ingful portion of a school system, as in this case,creates a presumption that other segregated school-ing within the system is not adventitious. It establishes,in other words, a prima facie case of unlawful segregativedesign on the part of school authorities, and shifts tothose authorities the burden of proving that other segre-gated schools within the system are not also the resultof intentionally segregative actions. This is true evenif it is determined that different areas of the schooldistrict should be viewed independently of each otherbecause, even in that situation, there is high probabilitythat where school authorities have effectuated an inten-tionally segregative policy in a meaningful portion ofvne school system, similar impermissible considerationshave motivated their actions in other areas of the sys-tem. We emphasize that the differentiating factor be-tween de jure segregation and so-called de factosegregation to which we referred in Swann is purposeor intent to segregate. Where school authorities havebeen found to have practiced purposeful segregationin part of a school system, they may be expected tooppose system-wide desegregation, as did the respond-ents in this case, on the ground that their purposefullysegregative actions were isolated and individual events,thus leaving plaintiffs with the burden of proving other-wise. But at that point where an intentionally segrega-tive policy is practiced in a meaningful or significantsegment of a school system, as in this case, the schoolauthorities can not be heard to argue that plaintiffs haveproved only "isolated and individual" unlawfully segrega-tive actions. In that circumstance, it is both fair and

'6402 U. S. 1, 17-18 (1971).


reasonable to require that the school authorities bear theburden of showing that their actions as to other segregatedschools within the system were not also motivated bysegregative intent.

This burden-shifting principle is not new or novel.There are no hard and fast standards governing theallocation of the burden of proof in every situation.The issue, rather, "is merely a question of policy andfairness based on experience in the different situations."IX Wigmore, Evidence § 2486 (3d ed. 1940). In thecontext of racial segregation in public education, thecourts, including this Court, have recognized a varietyof situations in which "fairness" and "policy" requirestate authorities to bear the burden of explaining actionsor conditions which appear to be racially motivated.Thus, in Swann, supra, 402 U. S., at 18. we observedthat in a system with a "history of segregation," "whereit is possible to identify a 'white school' or a 'Negroschool' simply by reference to the racial compositionof teachers and staff, the quality of school buildingsand equipment, or the organization of sport activities,a prima facie case of violation of substantive constitu-tional rights under the Equal Protection Clause isshown." Again, in a school system with a history ofsegregation, the discharge of a disproportionately largenumber of Negro teachers incident to desegregation"thrust [s] upon the School Board the burden of justifyingits conduct by clear and convincing evidence." Cham-bers v. Hendersonville City Board of Education, 364F. 2d 189, 192 (CA4 1966) (en bane). See also UnitedStates v, Jefferson County Board of Education, 372 F.2d 836, 887-888 (CA5 1966), aff'd en bane, 380 F. 2d385 (1967) ; North Carolina Teachers' Association v.Asheboro City Board of Education, 393 F. 2d 736, 743(CA4 1968) (en bane) ; Williams v. Kimbrough, 295F. Supp. 578, 585 (WD La. 1969); Bonner v, Texas City


Independent School District, 305 F. Supp. 600, 621 (SDTex. 1969). Nor is this burden-shifting principle lim-ited to former statutory dual systems. See, e. g., Davisv. School District of the City of Pontiac, 309 F. Supp.734, 743, 744 (ED Mich. 1970), aff'd, 443 F. 2d 573 (CA61971); United States v. School District No.. 151, 301F. Supp. 201, 228 (ND Ill. 1969), mod. on other grounds,432 F. 2d 1147 (CA7 1970). Indeed, to say that a systemhas a "history of segregation" is merely to say that a pat-tern of intentional segregation has been established in thepast. Thus, be it a statutory dual system or an allegedlyunitary system where a meaningful portion of the systemis found to be intentionally segregated, the existence ofsubsequent or other segregated schooling within thesame system justifies a rule imposing on the schoolauthorities the burden of proving that this segregatedschooling is not also the result of intentionally segregativeacts.

In discharging that burden, it is not enough, of course,that the school authorities rely upon some allegedly log-ical, racially neutral explanation for their actions. Theirburden is to adduce proof sufficient to support a findingthat segregative intent was not among the factorsthat motivated their actions. The courts below at-tributed much significance to the fact that many of theBoard's actions in the core city area antedated our de-cision in Brown. We reject any suggestion that remote-ness in time has any relevance to the issue of intent. Ifthe actions of school authorities were to any degree moti-vated by segregative intent and the segregation resultingfrom those actions continues to exist, the fact of remote-ness in time certainly does not make those actions anyless "intentional."

This is not to say, however, that the prima facie casemay not be met by evidence supporting a finding that a

KEYES v. SCHOOL DISTRICT NO. DENVER, COLO. 21

lesser degree of segregated schooling in the core city areawould not have resulted even if the Board had not actedas it did. In Swann, we suggested" that at some pointin time the relationship between bast segregative actsand present segregation may become so attenuated as tobe incapable of supporting a finding of de jure segregationwarranting judicial intervention. 402 U. S., at 31-32.See also Hobson v. Hansen, 269 F. Stipp. 401, 495 (DC1967), aff'd sub nom. Smuck v. Hobson, 132 U. S. App.D. C. 372, 408 F. 2d 175 (1969)." We made it clear.however, that a connection between past segregative actsand present segregation may be present even when notapparent and that close examination is required beforeconcluding that the connection does not exist. Inten-tional school segregation in the past may have been afactor in creating a natural environment for the growthof further segregation. Thus, if respondent School Boardcannot disprove segregative intent, it can rebut the primafacie case only by showing that its past segregative actsdid not create or contribute to the current segregatedcondition of the core city schools.

The respondent School Board invoked at trial its"neighborhood school policy" as explaining racial andethnic concentrations within the core city schools, arguingthat since the core city area population had long beenNegro and Hispano, the concentrations were necessarily

17 It may be that the District Court and Court of Appeals wereapplying this test in holding that petitioners had failed to provethat the Board's actions "caused" the current condition of segrega-tion in the core city schools. But if so, certainly plaintiffs in a schooldesegregation case are not required to prove "cause" in the senseof "non-attenuation." That is a factor which becomes relevantonly after past intentional actions resulting in segregation have beenestablished. At that stage, the burden becomes the school author-ities' to show that the current segregation is in no way the resultof those past segregative actions.


the result of residential pa' turns and not of purposefullysegregative policies. We Its e no occasion to consider inthis case whether a "neighborhood school policy" of itselfwill justify racial or ethnic concentrations in the absenceof a finding that school authorities have committed actsconstituting de jure segregation. It is enough that wehold that the mere assertion of such a policy is not dis-positive where, as in this case, the school authorities havebeen found to have practiced de jure segregation in ameaningful portion of the school system by techniquesthat indicate that the "neighborhood school" concept hasnot been maintained free of manipulation. Our obser-vations in Swann, supra, at 28, are particularly instruc-tive on this store:

"Absent a constitution. I violation there would beno basis for judicially ordering assignment of stu-dents on a racial basis. All things being equal, withno history of discrimination, it might well be desir-able to assign pupils to schools nearest their homes.But all things are not equal in a system that hasbeen deliberately constructed and maintained toenforce racial segregation. . . . 'Racially neutral'assignment plans proposed by school authorities toa district court may be inadequate; such plans mayfail to counteract the continuing effects of pastschool segregation resulting from disctiininatory lo-cation of school sites or distortion of school size inorder to achieve or maintain an artificial racial sepa-ration. When school authorities present a districtcourt with a 'loaded game board,' affirmative actionin the form of remedial altering of attendance zonesis proper to achieve truly non-discriminatory assign-ments. In short, an assignment plan is not ac-ceptable simply because it appears to be neutral."

KEYFS v. SCHOOL DISTRICT NO. 1, DENVER, 007.0 23

Tht4s, respondent School Board having been found tohave practiced deliberate racial segregation in -chools at-tended by over one-third of the Negro school population.that crucial finding establishes a prima facia ct.5e of in-tentional segregation in the core city school... In suchcz,,,,, respondent's neighborhood school policy is not to bedeterminative "simply because it appears to be neutral."

IV

In summary, the District Court on remand, first, willafford respondent School Board the opportunity to prowits eontent.on that the Park Hill area is a separate,identifiable and unrelated section of the school districtthat should be treated as isolated from the rest of tldistrict. If ,-spondint 4,..-!hool Board fails to prove thatcontention, the District C 'urt, second, will determinewhether respondent School Board's :!onduet over almostt. decade after 1060 in carryin,1 out a policy of deliberateracial segregation in the Pam Hili schools constitutesthe entire school system a dual scnool system. If heDistrict Court determines that the Denver s-+ id systemis a dual school system. respondent School Board hasthe affirmative duty to desegregate the entire system"root and branch." Green. v. County Scnool Board, supra,391 U. S., at 438. If the District Court determines,however, that the Denver school system is not a dualschool system by reason of the Board's actions in ParkHill. the court, third, will afford respondent School Boardthe opportunity to rebut petitioners' prima facie caseof intentional segregation in the core city schools raisedby the finding of intentional segregation in the Park Hillschools. There, the Board's burden is to show that itspolicies and practices with respect to school site location,school size, school renovations and additions. student at-

24 KEYES v. SCHOOL DISTRICT NO. I, DENVER, COLO.

tendance zones, student ssignme,.t and transfer options,mobile classroom units, transportation of students, as-signment of faculty and staff, etc., considered togetherand premised on the Board's so-called "neighborhoodschool" concept, either were not taken in effectuation ofa policy to create or maintain segregation in the core cityschools, or, if unsuccessful in that effort, were not factorsin causing the existing condition of segregation in theseschools. Considerations of "fairness" and "policy" de-mand no less in light of the Board's intentionally segrega-tive actions. If respondent Board fails to rebut peti-tioners' prima facie case, the District Court must, as inthe case of Park Hill, decree all-out desegregation ofthe core city schools.

The judgment of the Con f Appeals is modified tovacate instead of reverse the parts.of the Final Decreethat concern the core city schools, and the case is re-manded to the District Court for further proceedingsconsistent with this opinion,"

It is so ordered.

MR. CHIEF JUSTICE BURGER concurs in the result.

MR. JUSTICE WHITE took no part in the decision ofthis ase.

18 We therefore do not reach and intimate no view upon themerits of the holding of the District Court, premised upon its er-roneous finding that the situation "is more like de facto segregation,"313 F. Supp., at 73, that nevertheless, although all-out des2gregation"could not be decreed, . . . the only feasible and constitutionallyacceptable program . . . is a system of desegregation and integra-tion which provides compensatory education in an integrated en-vironmmt." Id., at 96.


No. 71-507

Wilfred Keyes et al.,Petitioners,

v.

School District No. 1. Denver,Colorado, et al.


[June 21, 1973]

MR. JUSTICE DOUGLAS.

While I join the opinion of the Court, I agree with myBrother POWELL that there is, for the purposes of theEqual Protection Clause of the Fourteenth Amendmentas applied to the school cases, no difference between defacto and de jure segregation. The school board is astate agency and the lines that it draws, the locations itselects for school sites, the allocation it makes of students,the budgets it prepares are state action for FourteenthAmendment purposes.

As Judge Wisdom cogently stated in United States v.Texas Education Agency, 467 F. 2d 848, segregatedschools are often created, not by dual school systemsdecreed by the legislature, but by the administration ofschool districts by school boards. Each is state actionwithin the meaning of the Fourteenth Amendment."Here school authorities assigned students, faculty, andprofessional staff, employed faculty and staff; chosesites for schools; constructed new schools and renovatedold ones; and drew attendance zone lines. The- naturaland foreseeable consequence of these actions was segrega-tion of Mexican-Americans. Affirmative action to thecontrary would have resulted in desegregation. Whenschool authorities by their actions, contribute to segrega-


tion in education, whether by causing additional segrega-tion or maintaining existing segregation, they deny to thestudents equal protection of the laws.

"We need not define the quantity of state participationwhich is a prerequisite to a finding of constitutional vio-lation. Like the legal concepts of 'the reasonable man,'`due care,' causation,"preponderance of the evidence,'and 'beyond a reasonable doubt,' the necessary degreeof state involvement is incapable of precise definition andmust be defined on a case-by-case basis. Suffice it to saythat school authorities here played a significant role incausing or perpetuating unequal educational opportuni-ties for Mexican-Americans, and did so on a system-widebasis." Id., at 863-864.

These latter acts are often said to create de facto ascontrasted with de jure segregation. But as JudgeWisdom observes, each is but another form of de juresegregation.

I think it is time to state that there is no constitu-tional difference between de jure and de facto segrega-tion, for each is the product of state actions or policies.If a "neighborhood" or "geographical" unit has beencreated along racial lines by reason of the play of restric-tive covenants that restrict certain areas to "the elite,"leaving the "undesirables" to move elsewhere, there isstate action in the constitutional sense because the forceof law is placed behind those covenants.

There is state action in the constitutional sense whenpublic funds are dispersed by urban development agenciesto build racial ghettoes.

Where the school district is racially mixed and theraces are segregated in separal-,, schools, where blackteachers are assigned almost exclusively to black schools,where the school board closed existing schools located infringe areas and built new schools in black areas and indistant white areas, where the school board continued

KEYFS v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 3

the "neighborhood" school policy at the elementary level,these actions constitute state action, They are of a kindquite distinct from the classical de jure type of schoolsegregation. Yet calling them de facto is a misnomer,as they are only more subtle types of state action thatcreate or maintain a wholly or partially segregated schoolsystem. See Kelly v. Guinn, 456 F. 2d 100.

When a State forces, aids, or abets, or helps create aracial "neighborhood," it is a travesty of justice to treatthat neighborhood as sacrosanct in the sense that itscreation is free from the taint of state action,

The Constitution and Bill of Rights have described thedesign of a pluralistic society. The individual has theright to seek such companions as he desires. But aState is barred from creating by one device or anotherghettoes that determine the school one is compelled toattend.


No. 71-507

Wilfred Keyes et al.,Petitioners,

v.

School District No. 1, Denver,Colorado, et al.


[June 21, 1973]

MR. JUSTICE POWELL concurring in part and dissentingin part.

I concur in the remand of this case for further pro-ceedings in the District Court, but on grounds that differfrom those relied upon by the Court.

This is the first school desegregation case to reach thisCourt which involves a major city outside the South. Itcomes from Denver, Colorado, a city and a State whichhave not operated public schools under constitutional orstatutory provisions which mandated or permitted racialsegregation.' Nor has it been argued that any otherlegislative actions (such as zoning and housing laws)contributed to the segregation which is at issue.2 The

'Article IX, § 8, of the Colorado Constitution has expressly pro-hibited "any classification of pupils . . . on account of race orcolor."

2 See, e. g., Swann v. Charlotte- Mecklenburg Board of Education,402 U. S. 1, 23 (1971):"We do not reach . . . the question whether a showing that schoolsegregation is a consequence of other types of state action, withoutany discriminatory action. by school authorities, is a constitutionalviolation requiring remedial action by a school desegregation decree."The term "state action," as used herein, thus refers to actions of theappropriate public school authorities.


Court has inquired only to what extent the Denverpublic school authorities may have contributed to theschool segregation which is acknowledged to exist inDenver.

The predominantly minority schools are located in twoareas of the city referred to as Park Hill and the corecity area. The District Court considered that a schoolwith a concentration of 70 to 75% "Negro or Hispanostudents" was identifiable as a segregated school. 313F. Supp., at 77. Wherever one may draw this line, it isundisputed that most of the schools in these two areasare in fact heavily segregated in the sense that their stu-dent bodies are overwhelmingly composed of non-Anglochildren. The city-wide school mix in Denver is 66%Anglo, 14% Negro, and 20% Hispano. In areas of thecity where the Anglo population largely resides, theschools are predominantly Anglo, if not entirely so.

The situation in Denver is generally comparable tothat in other large cities across the country in wl,:.th thereis a substantial minority population and where desegre-gation has not been ordered by the federal courts. Thereis segregation in the schools of many of these cities fullyas pervasive as that in southern cities prior to the deseg-regation decrees of the past decade and a half. The focusof the school desegregation problem has now shifted fromthe South to the country as a whole. Unwilling andfootdragging as the process was in most places, substan-tial progress toward achieving integration has been madein southern States' No comparable progress has beenmade in many nonsouthern cities with large minority

3 According to the 1971 HEW estimate, 43.9% of Negro pupilsattended majority white schools in the South as opposed to only27.8% who attended such schools in the North and West. Fifty-seven percent of all Negro pupils in the North and West attendschools with over 80% minority population as opposed to 32.2%who do so in the South. 118 Cong. Rec. S145.

KEYES v. SCHOOL DISTRICT NO. 1 DENVER,, COLO 3

populations' primarily because of the de facto/de juredistinction nurtured by the courts and accepted com-placently by many of the same voices which denouncedthe evils of segregated schools in the South.' But if ournational concern is for those who attend such schools,rather than for perpetuating a legalism rooted in historyrather than present reality, we must recognize that theevil of operating separate schools is no less in Denverthan in Atlanta.

*The 1971 HEW Enrollment Survey dramatized the segregatedcharacter of public school systems in many nonsouthern cities. Thepercentage of Negro pupils which attended schools more than 80%black was 91,3 in Cleveland, Ohio; 97.8 in Compton, California,78.1 in Dayton, Ohio;, 78.6 in Detroit, Michigan; 95.7 in Gary.Indiana; 86.4 in Kansas City, Missouri; 86.6 in Los Angeles, Cali-fornia; 78.8 in Milwaukee, Wisconsin; 91.3 in Newark, New Jersey;89.8 in St. Louis, Missouri. The full data from the Enrollment Sur-vey may be found in 118 Cong. Rec. S144-148, Jan. 20, 1972.

5 As Senator Ribicoff (D.-Conn.) recognized:"For years we have fought the battle of integration primarily inthe South where the problem was severe. It was a long, arduousfight that deserved to be fought and needed to be won.

"Unfortunately, as the problem of racial isolation has moved northof the Mason-Dixon line, many northerners have hid an evasivefarewell to the 100-year struggle for racial equality. Our ',lottoseems to have been 'Do to southerners what you do not want to doto yourself.'

"Good reasons have always been offered, of course, for not movingrigorously ahead in the North as well as the South.

"First, it was that the problem was worse in the South. Thenthe facts began to show that that was no longer true.

"We then began to hear the de facto-de jure refrain,"Somehow residential segregation in the North was accidental or

de facto and that made it better than the legally supported de juresegregation of the South. It was a hard distinction for black childrenin totally segregated schools in the North to understand, but itallowed us to avoid the problem." 118 Cong. Rec. 52542, Feb. 24,1972.

4 KEYES v. SCHOOL DISTRICT NO, 1, DENVER, COLO.

IIn my view we should abandon a distinction which long

since has outlived its time, and formulate constitutionalprinciples of national rather than merely regional appli-cation. When Brown v. Board of Education, 347 U. S.483 (1954), was decided, the distinction between de jureand de facto segregation was consistent with the limitedconstitutional rationale of that case. The situation con-fronting the Court, largely confined to the southernStates, was officially imposed racial segregation in theschools extending back for many years and usually em-bodied in constitutional and statutory provisions.

The great contribution of Brown I was its holding inunmistakable terms that the Fourteenth Amendmentforbids state-compelled or authorized segregation of pub-lic schools. 347 U. S., at 488, 493-495. Although someof the language was more expansive, the holding inBrown I was essentially negative: It was impermissibleunder the Constitution for the States, or their instru-mentalities, to force children to attend segregated schools.The forbidden action was de jure, and the opinion inBrown I was construedfor some years and by manycourtsas requiring only state neutrality, allowing "free-dom of choice" as to schools to be attended so long as theState itself assured that the choice was genuinely free ofofficial restraints.'

6 See, e. g., Bradley v. School Board, 345 F. 2d 310, 316 (CA4en bane, 1985):"It has been held again and again . . . that the FourteenthAmendment, prohibition is not against segregation as such. . . .

A state or school district offends no constitutional requirementwhen it grants to all students uniformly an unrestricted freedom ofchoice as to the school attended, so that each pupil, in erect, assignshimself to the school he wishes to attend." (The case was later


But the doctrine of Brown 1, as amplified by Brown 11,349 U. S. 294 (1955), did not retain its original meaning.In a series of decisions extending from 1954 to 1971 theconcept of state neutrality was transformed into thepresent constitutional doctrine requiring affirmativestate action to desegregate school systems.' The key-stone case was Green v. County School Board, 391 U. S.430, 438 (1968), where school boards were declared tohave "the affirmative duty to take whatever steps mightbe necessary to convert to a unitary system in whichracial discrimination would be eliminated root andbranch." The school system before the Court in Greenwas operating in a rural and sparsely settled countywhere there were no concentrations of white and blackpopulations, no neighborhood school system (there wereonly two schools in the county), and none of theproblems of an urbanized school district. The Courtproperly identified the freedom of choice programthere as a subterfuge. and the language in Green impos-ing an affirmative. duty to convert to a unitary systemwas appropriate on the facts before the Court. Therewas, however, reason to question to what extent this dutywould apply in the vastly different factual setting of a

vacated and remanded by this Court, which expres:,ed no view on themerits of the desegregation plans submitted.) 382 U. S. 103, 105(1965). See also Bell v. School City of Gary. Ind., 324 F. 2d 209(CA7 1963) ; Downs v. Board of Educ., 336 F. 2d 988 (CA10 1964):Deal v. Board of Edw.., 369 F. 2d 55 (CA6 1966)

For a concise history and commentary on the evolution, see gen-erally A. Bickel, The Supreme Court and the Idea of Progress, pp.126-130 (1970).

8 See also the companion eases in Raney v. Board of Education,391 U. S. 443 (1968), and Monroe v. Board of Comm'rs, 391 U. S.450 (1968), neither of which involved large urban or metropolitanareas.


large city with extensive areas of residential segregation,presenting problems and calling for solutions quite dif-ferent from those in the rural setting of New KentCounty, Virginia.

But the doubt as to whether the affirmative duty con-cept would flower into a new constitutional principle ofgeneral application was laid to rest by Swann v. Boardof Education, 402 U. S. 1 (1971), in whi,..1 the dutyarticulated in Green was applied to the urban schoolsystem of metropolitan Charlotte, North Carolina. Indescribing the - esiden ti al patterns in Charlotte, the Courtnoted the "familiar phenomenon" in the metropolitanareas of minority groups being "concentrated in one partof the city," 402 U. S., at 25, and acknowledged that:

"Rural areas accustomed for half a century to theconsolidated school system implemented by bustransportation could make adjustments more readilythan metropolitan areas with dense and shifting pop-ulation, numerous schools, congested and complextraffic patterns." 402 U. S., at 14.

Despite this recognition of a fundamentally differentproblem from that involved in Green, the Court never-theless held that the affirmative duty rule of Green wasapplicable, and prescribed for a metropolitan school sys-tem with 107 schools and some 84,000 pupils essentiallythe same remedyelimination of segregation "root andbranch"which had been formulated for the two schoolsand 1,300 pupils of New Kent County.,

In ,Swann, the Court further noted it was concerned onlywith States having "a long history" of officially imposedsegregation and the duty of school authorities in thoseStates to implement Brown I. 402 U. S., at 5-6. In sodoing, the Court refrained even from considering whetherthe evolution of constitutional doctrine from Brown I toGreen/Swann undercut whatever logic once supported


the de facto/de jure distinction. In imposing on metro-politan southern school districts an affirmative duty, en-tailing large-scale transportation of pupils, to eliminatesegregation in the schools, the Court required these dis-tricts to alleviate conditions which in large part did notresult from historic, state-imposed de jure segregation.Rather, the familiar root cause of segregated schools in allthe biracial metropolitan areas of our country is essen-tially the same: one of segregated residential and migra-tory patterns the impact of which on the racial composi-tion of the schools was often perpetuated and rarelyameliorated by action of public school authorities. Thisis a national, not a southern phenomenon. And it islargely unrelated to whether a particular State had or didnot have segregatory school laws.°

Whereas Drown I rightly decreed the eliminationof state-imposed segregation in that particular section ofthe country where it did exist, Swann imposed obligationson southern school districts to eliminate conditions whichare not regionally unique but are similar both in originand effect to conditions in the rest of the country. As

9 As Dr. Karl Taeuber states in his article, Residential Segregation,Scientific American, August 1965, at 14:

"No elaborate analysis is necessary to conclude from these figuresthat a high degree of residential segregation based on race is a uni-versal characteristic of American cities. This segregation is foundin the cities of the North and West as well as of the South; in largecities as well as small; in nonindustrial cities as well as industrial; incities with hundreds of thousands of Negro residents as well as thosewith only a few thousand; and in cities that are progressive in theiremployment practice and civil rights policies as well as those thatare not."In his book, Negroes in Cities (1965), Dr. Taeuber stated that resi-dential segregation exists "regardless of the character of local lawsand policies and regardless of other forms of discrimination." Id.,at 36.

8 KEYFS v. SCHOOL DISTRICT NO. 1, DENVER, COLO.

the remedial obligations of Swann extend far beyondthe elimination of the outgrowths of the state-imposedsegregation outlawed in Brown, the rationale of Swannpoints inevitably towards a uniform, constitutional ap-proach to our national problem of school segregation.

IIThe Court's decisie' today, while adhering to the

de jure/de facto distinction, will require the applicationof the Green/Swann doctrine of "affirmative duty" to theDenver School Board c'espite the absence of any historyof state-mandated school segregation. The only evidenceof a constitutional violation was found in various de-cisions of the school board. I concur in the Court's posi-tion that the public school authorities are the responsibleagency of the State, and that if the affirmative duty doc-trine is sound constitutional law for Charlotte, it is

equally so for Denver. I would not, however, perpetuatethe de jure/de facto distinction nor would I leave to peti-tioners the initial tortuous effort of identifyi ig "segre-gative acts" and deducing "segregatory intent." I wouldhold, quite simply, that where segregated public schoolsexist within a school district to a substantial degree, thereis a prima facie case that the duly constituted publicauthorities (I will usually refer to them collectively asthe "school board") are sufficiently responsible '° to im-pose upon them a nationally applicable burden to demon-

"A prima facie case of constitutions: violation exists when segre-gation is found to a substantial degree in the schools of a par-ticular district. It is recognized, of course, that this term is rela-tive and provides no precise standards. But circumstances, demo-graphic and otherwise, vary from district to district and hard andfast rules should not be formulated. The existence of a substantialpercentage of schools populated by students from one race only orpredominately so populated, should trigger the inquiry.

KEYES v. SCHOOL DISTRICT NO. I, DENVER, COLO. 9

strate they nevertheless are operating a genuinely inte-grated school system.

AThe principal reason for abandonment of the de jure/

de facto distinction is that, in view of the evolution ofthe holding in Brown I into the aMrinative duty doctrine.the distinction no longer can be justified on a principledbasis. In decreeing remedial requirements for theCharlotte/Mecklenburg school district, Swann dealtwith a metropoli;an, urbanized area in which the basiccauses of segregation were generally similar to those inall sections of the country, and also largely irrelevantto the existence of historic, state-imposed segregation atthe time of the Brown decision. Further, the extensionof the affirmative duty concept to include compulsorystudent transportation went well beyond the mere rem-edying of that portion of school segregation for whichformer state segregation laws were ever responsible.Moreover, 9S the Court's opinion today abundantly dem-onstrates, the ,acts deemed necessary to establish de jurediscrimination present problems of subjective intentwhich the courts cannot fairly resolve.

At the outset, one must try to identify the constitu-tional right which is being enforced. This is not easy,as the precedents have been far from explicit. InBrown I, after empi,asizing the importance of education,the Court said that:"Such an opportunity, where the state has under-taken to provide it, is a right which must be madeavailable to all on equal terms." 347 U. S., at 493.

In Brown II, the Court identified the -"fundamental prin-ciple" enunciated in Brown I as being the unconstitu-tionality of "racial discrimination in public education,"349 U. S., at 298, and spoke of "the personal interestof the plaintiffs in admission to public schools as soon


as practicable on a nondiscriminatory basis." 349 U. S.,

at 300. Although this and similar language is ambiguousas to the specific constitutional right, it mear.aas a mini-mumthat one has the right not to be compelled by

state action to attend a segregated school system. Inthe evolutionary process since 1951, decisions of thin

Court have added a significant gloss to this original right.Although nowhere expressly articulated in these terms,I would now define it as the right, derived from the EqualProtection Clause, to expect that once the State has as-sumed responsibility for education, local school boardswill operate integrated school systems within their re-spective districts." This means that school authorities,consistent with the generally accepted educational goal ofattaining quality education for all pupils, must make andimplement their customary decisions with a view towardenhancing integrated school opportunities.

The term "integrated school system" presuppoes, ofcourse, a total absence of any laws, regulatic-is or policiessur;c)ortive of the type of "legalized" segreiation con-demned in Brown. A system would be inticrated inaccord with constitutional standards if the responsibleauthorities had taken appropriate steps to (i) integratefaculties and administration; (ii) scrupulously assureoquality of facilities, instruction and curricula oppor-tunities throughout the district; (iii) utilize their au-thority to draw attendance zones to promote integra-tion; and (iv) locate new schools, ()lobe old ones, and

"See discussion in Part III. infra, of the remedial actio.. whichis appropriate to accomplish dttegregthion where a court finds thata school board has failed to opera e an i tcgrated school systemwithin its district. Plaintiffs must, however, establish the failui.-of a school board to operate an int /rated school system before acourt may order desegregative steps L./ Nay of reme ,. These etwo distinct steps which recognize the neces.ity of proving the con-stitutional violation before desegregative remedial action can beordered.


determine the size and grade categories with this sameobjective in mind. Where school authorities decide toundertake the transportation of students, this also mustbe with integrative opportunities in mind.

The foregoing prescription is not intended to be eitherdefinitive or all-inclusive, but rather an indication ofthe contour characteristics of an integrated school sys-tem in which all citizens and pupils may justifiably beconfident that racial discrimination is neither practicednor tolerated. An integrated school system does notmeanand indeed could not mean in view of the resi-dential patterns of most of our major metropolitanareasthat every school must in fact be an integratedunit. A school which happens to be all or predominantlywhite or all or predominantly black is not a "segregated"school in an unconstitutional sense if the system itself isa genuinely integrated one.

Having school boards operate an integrated school sys-tem provides the best assurance of meeting the constitu-tional requirement that racial discrimination, subtle orotherwise, will find no place in the decisions of publicschool officials. Courts judging past school board actionswith a view to their general integrative effect will be bestable to assure an absence of such discrimination whileavoiding the murky, subjective judgments inherent inthe Court's search for "segregatory intent." Any testresting on so nebulous and elusive an element as aschool board's segregatory "intent" provides inadequateassurance that minority children will not be short-changed in the decisions of those entrusted with the non-discriminatory operation of our public schools.

Public schools are creatures of the State, and whetherthe segregation is state-created or state-assisted ormerely state-perpetuated should be irrelevant to consti-tutional principle. The school board exercises pervasiveand continuing responsibility over the long range plan-


ning as well as the daily operations of the public schoolsystem. It sets policies on attendance zones, facultyemployment and assignments, school construction, clos-ings and consolidations, and myriad other matters.School board decisions obviously are not the sole causeof segregated school conditions. But if, after such de-tailed and complete public supervision, substantial schoolsegregation still persists, the presumption is strong thatthe school board, by its acts or omissions, is in some partresponsible. Where state action and supervision are sopervasive and where, after years of such action, seg-regated schools continue to exist within the districtto a substantial degree, this Court is justified in find-ing a prima facie case of a constitutional violation.The burden then must fall on the school board to demon-strate it is operating an "integrated school system."

It makes little sense to find prima facie violations andthe consequent affirmative duty to desegregate solely inthose States with state-imposed segregation at the timeof the Brown decision. The history of state-imposedsegregation is more widespread in our country than thede jure/de facto distinction has traditionally cared torecognize.12 As one commentator has noted:

"the three court of appeals decisions denying a con-stitutional duty to abolish de facto segregation all

12 Indeed, if one goes back far enough, it is probable that all racialsegregation, wherever occurring and whether or not confined to theschools, has at some time been supported or maintained by govern-ment action. In Becket v. School Board, 308 F. Supp. 1274, 1311-1315 (ED Va. 1969), Judge Walter Hoffman compiled a summaryof past public segregatory action which included examples from agreat majority of States. He concluded that "only as to the statesof Maine, New Hampshire, Vermont, Washington, Nevada, andHawaii does it appear from this nonexhaustive research that no dis-criminatory laws appeared on the books at one time or another."Id., at 1315.


arose in citiesCincinnati, Gary and Kansas City,Kansaswhere racial segregation in schools wasformerly mandated by state or local law. [Deal v.Cincinnati Bd. of Educ., 369 F. 2d 55 (CA6 1966),cert. denied, 377 U. S. 924 (1964); Downs v. Boardof Educ., 336 F. 2d 988 (CA10 1964),-cert. de-nied, 380 U. S. 914, Bell v. School City, 324 F. 2d209 (CA7 1963), cert. denied, 377 U. S. 924.] Ohiodiscarded its statute in 1887, Indiana in 1949, andKansas City not until the advent of Brown. IfNegro and white parents in Mississippi are requiredto bus their children to distant schools on the theorythat the consequences of past de jure segregationcannot otherwise be dissipated, should not the samereasoning apply in Gary, Indiana, where no morethan five years before Brown the same practiceexisted with presumably the same effects." Good-man, De Facto School Segregation: A Constitutionaland Empirical Analysis, 60 Cal. L. Rev. 275, 297(1972).13

Not only does the de jure/de facto distinction operateinequitably on communities in different sections of the

13 The author continues:

"True, the earlier the policy of segregation was abandoned the lessdanger there is that it continues to operate covertly, is significantlyresponsible for present day patterns of residential segregation, or hascontributed materially to present community attitudes toward Negroschools. But there is no reason to suppose that 1954 is a universallyappropriate dividing line between de jure segregation that maysafely be assumed to have spent itself and that which may not.For many remedial purposes, adoption of an arbitrary but easilyadministrable cutoff point might not be objectionable. But in asituation such as school desegregation, where both the rights assertedand the remedial burdens imposed are of such magnitude, ana wherethe resulting sectional discrimination is passionately resented, it issurely questionable whether such arbitrariness is either politicallyor morally acceptable."


country: more importantly, it disadvantages minoritychildren as well. As the Fifth Circuit stated:

"The Negro children in Cleveland, Chicago, LosAngeles, Boston, New York, or zny other area of thenation which the opinion classifies under de factosegregfition, would receive little comfort from theassertion that the racial make-up of their school sys-tem does not violate their constitutional rights be-cause they were born into a de facto society, whilethe exact same racial make-up of the school systemin the 17 southern and border states violates theconstitutional rights of their counterparts, or eventheir blood brothers, because they were born intoa de jure societ:. All children everywhere in thenation are protected by the Constitution, and treat-ment which violates their constitutional rights inone area, also violates such constitutional rights inanother area." Cisneros v. Corpus Christi Independ-ent School District, 467 F. 2d 142, 148 (CA5 en banc,1972) quoting United States v. Jefferson CountyBoard of Educ., 380 F. 2d 385, 397 (CA5 en banc)Gewin, J., dissenting)."

The Court today does move for the first time towardbreaking down past sectional disparities, but it clingstenuously to its distinction. It searches for de jureaction in what the Denver School Board has done orfailed to do, and even here the Court does not rely uponthe results or effects of the Board's conduct but feels com-pelled to find segregatory intent:, 15

"We emphasize that the differentiating factor be-

14 See Bickel, supra, n. 7, at 119:"If a Negro child perceives his separation as discriminatory andinvidious, he is not, in a society a hundred years removed fromslavery, going to make fine distinctions about the source of a par-ticular separation."

15 The Court today does not require, however, a segregatory intentwith respect to the entire school system, and indeed holds that if such

KEYES. v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 15

tween de jure segregation and so-called de factosegregation to which we referred in Swann is pur-pose or intent to segregate." (Court Opinion, p. 18)(italics are the Court's).

The Court's insistence that the "differentiating fo..efor"between de jure and de facto segregation be "purposeor intent" is difficult to reconcile with the language in sorecent a case as Wright v. Council of the City of Emporia,407 U. S. 451 (7972). In holding there that "motiva-tion" is irrelevant, the Court said:,

"In addition, an inquiry into the 'dominant' motiva-tion of school authorities is as irrelevant as it is fruit-less. The mandate of Brown II was to desegregateschools, and we have said that 'Nile measure ofany desegregation plan is its effectiveness.' Davisv. School Commissioners of Mobile County, 402 U. S.33, 37."Thus, we have focused upon the effectnot thepurpose or motivationof a school board's actionin determining whether it is a permissible methodof dismantling a dual system.

"Though the purpose of the new school district wasfound to be discriminatory in many of these cases, the

an intent is found with respect to some schools in a system,. the bur-dennormally on the plaintiffsshifts to the defendant school au-thorities to prove a negative: namely, that their purposes werebenign, ante, pp. 17-18.

The Court has come a long way since Brown I. Starting fromthe unassailable de jure ground of the discriminatory constitutionaland statutory provisions of some States, the new formulation - -stillprofessing fidelity to the de jure doctrineis that desegregation willbe ordered despite the absence of any segregatory laws if: (i) segre-gate I schools in fact exist, (ii) a court finds that they result fromsome action taken with segregatory intent by the school board;(iii) such action relates to any "meaningful segment" of the schoolsystem; and (iv) the school board cannot prove that its intentionswith respect to the remainder of the system were nonsegregatory.


courts' holdings rested not on motivation or pur-poses but on the effect of the action upon the dis-mantling of the dual school system involved. Thatwas the focus of the District Court in this case, andwe hold that its approach was proper." 407 U. S.,at 462.

I can discern no basis in law or logic for holding thatthe motivation of school board action is irrelevant inVirginia and controlling in Colorado. It may be argued,of course, that in Emporia a prior constitutional viola-tion had already been proven and that this justifies thedistinction. The net result of the Court's language, how-ever, is the application of an effect test to the actions ofsouthern school districts and an intent test to those inother sections, at least until an initial de jure finding forthose districts can be made. Rather than straining toperpetuate any such dual standard, we should hold forth-rightly that significant segregated school conditions inwhatever section of the country are a prima facie viola-tion of constitutional rights. As the Court has notedelsewhere:,

"Circumstances or chance may well dictate that nopersons in a certain class will serve on a particularjury or during some particular period. But it taxesour credulity to say that mere chance resulted inthere being no members of this class among the oversix thousand jurors called in the past 25 years. Theresult bespeaks discrimnation, whether or not it wasa conscious decision on the part of any individual jurycommissioner," Hernandez v. Texas, 347 U. S. 475,482 (1954). (Emphasis added.)

B

There is thus no reason as a matter of constitutionalprinciple to adhere to the de jure/de facto distinction inschool desegregation cases. In addition, there are rea-


sons of policy and prudent judicial administration whichpoint strongly toward the adoption of a uniform nationalrule. The litigation heretofore centered in the Southalready is surfacing in other regions. The decision ofthe Court today, emphasizing as it does the elusiveelement of segregatory intent, will invite numerous deseg-regation suits in which there can be little hope of uni-formity of result.

The issue in these cases will not be whether segregatededucation exists. This will be conceded in most of them.The litigation will focus as a consequence of the Court'sdecision on whether segregation has resulted in any"meaningful or significant" portion of a school systemfrom a school board's "segregatory intent." The intrac-table problems involved in litigating this issue are obviousto any lawyer. The results of litigationoften arrivedat subjectively by a court endeavoring to ascertain thesubjective intent of school authorities with respect toaztion taken or not taken over many yearswill befortuitous, unpredictable and even capricious.

The Denver situation is illustrative of the problem.The courts below found evidence of de jure violationswith respect to the Park Hill schools and an absence ofsuch violations with respect to the core city schools,despite the fact that actions taken by the school boardwith regard to those two sections were not dissimilar.It is, for example, quite possible to contend that boththe construction of Manual High School in the core cityarea and Barrett Elementary School in the Park Hill areaoperated to serve their surrounding Negro communitiesand, in effect, to merge school attendance zones withsegregated residential patterns. See Petitioner's Brief,pp. 80-83. Yet findings even on such similar acts will,under the de jure/de facto distinction, continue to differ,especially since the Court has never made clear whatsuffices to establish the requisite "segregatory intent" for


an initial constitutional violation. Even if it were pos-sible to clarify this question, wide and unpredictabledifferences of opinion among judges would be inevitablewhen dealing with an issue as slippery as "intent" or"purpose," especially when related to hundreds ofdecisions made by school authorities under varying con-ditions over many years.

This Court has recognized repeatedly that it is "ex-tremely difficult for a court to ascertain the motivation,or collection of different motivations, that lie behind alegislative enactment," Palmer v. Thompson, 403 U. S.214, 224 (1971) ; McGinnis v. Royster, U. S. ,(1973) ; United States v. O'Brien, 391 U. S. 367, 381(1968). Whatever difficulties exist with regard to a sin-gle statute will be compounded in a judicial review ofyears of administration of a large and complex schoolsystem." Every act of a school board and school ad-ministration, and indeed every failure to act where affirm-ative action is indicated, must now be subject to scrutiny.

16 As one commentator has expressed it:"If the courts are indeed prepared to inquire into motive, thorny

questions will arise even if one assumes that racial motivation iscapable of being proven at trial. What of the case in which one ormore members of a school board, but less than a majority, are foundto have acted on racial grounds? What if it appears that the schoolboard's action was prompted by a mixture of motives, including con-stitutionally innocent ones that alone would have prompted the boardto act? What if the members of the school board were not them-selves racially inspired but wished to please their constituents, manyof whom they knew to be- so? If such cases are classified as un-constitutional de jure segregation, there is little point in preservingthe de jure-de facto distinction at all. And it may well be that thedifference between any of these situations and one in which racialmotivation is altogether lacking is too insignificant, from the s:and-point of both the moral culpability of the state officials and theimpact upon the children involved, to support a difference in con-stitutional treatment." Goodman, supra, n. 11, at 284-285.


The most routine decisions with respect to the operationof schools, made almost daily, can affect in varying de-grees the extent to which schools are initially segregated,remain in that condition, are desegregated, orfor thelong term futureare likely to be one or the other. Thesedecisions include action or nonaction with respect toschool building construction and location; the timing ofbuilding new schools and their size; the closing and con-solidation of schools; the drawing or gerrymandering ofstudent attendance zones; the extent to which a neigh-borhood policy is enforced ; the recruitment, promotionand assignment of faculty rid supervisory personnel;policies with respect to transfers from one school toanother; whether, and to what extent, special schools willbe provided, where they will be located, and who willqualify to attend them; the determination of curriculum,including whether there will be "tracks" that lead pri-marily to college or to vocational training, and the rout-ing of students into these tracks; and even decisions asto social, recreational and athletic policies.

In Swann the Court did not have to probe into segre-gatory intent and proximate cause with respect to eachof these "endless" factors. The basis for its de jure find-ing there was rooted primarily in the prior history of thedesegregation suit. 402 U. S., at 5-6. But in a case ofthe present type, where no such history exists, a judicialexamination of these factors will be required under to-day's decision. This will lead inevitably to uneven andunpredictable results, to protracted and inconclusive liti-gation, to added burdens on the federal courts, and toserious disruption of individual school systems. In theabsence of national and objective standards, school boardsand administrators will remain in a state of uncertaintyand disarray, speculating as to what is required and whenlitigation will strike.


C

Rather than continue to prop up a distinction no longergrounded in principle, and contributing to the conse-quences indicated above, we should acknowledge thatwhenever public school segregation exists to a sub-stantial degree there is prima facie evidence of a con-stitutional violation by the responsible school board. Itis true, of course, that segregated schoolswhereverlocatedare not solely the product of the action orinaction of public school authorities. Indeed, as indi-cated earlier, there can be little doubt that principalcauses of the pervasive school segregation found in themajor urban areas of this country, whether in the North,West, or South, are the socio-economic influences whichhave concentrated our minority citizens in the inner citieswhile the more mobile white majority disperse to the sub-urbs. But it is also true that public school boards havecontinuing, detailed responsibility for the public schoolsystem within their district and, as Judge John MinorWisdom has noted, "where the figures [showing'egregation in the schools] speak so eloquently, aprima face case of discrimination is established."United States v. Texas Education Agency, 467 F. 2d 848,873 (CA5 en banc 1972). Moreover, as foreshadowed inSwann and as implicitly held today, school boards have aduty to minimize and ameliorate segregated conditionsby pursuing an affirmative policy of desegregation. It isthis policy which must be applied consistently on a na-tional basis without regard to a doctrinal distinctionwhich has outlived its time.

III

The preceding section addresses the constitutional ob-ligation of public authorities in the school districtsthroughout our country to operate integrated school sys-


terns. When the schools of a particular district arefound to be substantially segregated, there is a primafacie case that this obligation has not been met. Theburden then shifts to the school authorities to demon-strate that they have in fact operated an integratedsystem as this term is defined above, supra, p. 10. Ifthere is a failure successfully to rebut the prima faciecase, the question then becomes ,vhat reasonable affirma-tive desegregative steps district courts may require toplace the school system in compliance with the consti-tutional standard. In short, what specifically is thenature and scope of the remedy?

As the Court's opinion virtually compels the finding onremand that Denver has a "dual school system," that citywill then be under an "affirmative duty" to desegregateits entire system "root and branch." Green v. CountySchool Board, 391 U. S., at 438. Again, the critical ques-tion is what ought this constitutional duty to entail.

A

The controlling case is Swann, supra, and the questionwhich will confront and confound the District Court andDenver School Board is what indeed does Swann, require.Swann purported to enunciate no new principles, relyingheavily on Brown I and II and on Green. Yet it affirmeda district court order which had relied heavily on "racialratios" and sanctioned transportation of elementary aswell as secondary pupils. Lower federal courts have oftenread Swann as requiring far-reaching transportation de-crees." "to achieve the greatest possible degree of actual

" See, e. g., Thompson v. School Board of Newport News,F. 2d , (1972), where the CA4 en bane, upheld a district courtassignment plan where "travel time, varying from a minimum offorty minutes and a maximum of one hour, each way, would be re-quired for busing black students out of the old City and white stu-dents into the old City in order to achieve a racial balancl..6 of the


desegregation." 402 U. S., at 26. In the context of alarge urban area, with heavy residential concentrationsof white and black citizens in differentand widelyseparatedsections of the school district, extensive dis-persal and transportation of pupils is inevitable if Swannis read as expansively as many courts have been readingit to date.

To the extent that Swann may be thought to requirelarge-scale or long-distance transportation of students inour metropolitan school districts, I record my profoundmisgivings. Nothing in our Constitution commands orencourages any such court compelled disruption of publiceducation. It may be more accurate to view Swann ashaving laid down a broad rule of reason under whichdesegregation remedies must remain flexible and othervalues and interests be considered. Thus the Courtrecognized that school authorities, not the federal judi-ciary, must be charged in the first instance with the taskof desegregating local school systems. 402 U., S.. at 16.It noted that school boards in rural areas can adjustn readily to this task than those in metropolitan dis-district." This transportation was decreed for children from the thirdgrade up, involving children as young as eight years of age.

In Northcross v. Memphis Bd. of Educ., 466 F. 2d 890, 895(1972), the CA6 affirmed a district court assignment plan whichdaily transported 14,000 children with "the maximum time to bespent on the buses by any child [being.) 34 minutes. . . ," pre-sumably each way. But as Judge Weick noted in dissect the CA6instructed the district judge to implement yet further desegregationorders. Plans presently under consideration by that court call forthe busing of 39,085 and 61,530 children respectively, for undeter-mined lengths of time. Id., at 895-986.

Petitioners before this Court in Potts v. Flax. No. 72-288, cert.denied, U. S. (197), contended that the implementationof the CA5's directive in Flax v. Potts, 464 F. 2d 865 (1972), wouldrequire bus rides of up to two hours and 20 minutes each day anda round trip of up to 70 miles. Petition, at 14. While respondentscontend these figures represent an "astounding inflation," Response,at 7, transportation of a significant magnitude seems inevitable.

KUM v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 23

tricts "with dense and shifting population, numerousschools, conger .,d and complex traffic patterns." Id., at14. Although the use of pupil transportation was ap-proved as a remedial device, transportation orders aresuspect "when the time or distance of travel is so greatas to either risk the health of the children or significantlyimpinge on the education process." Id., at 31. Filially.the age of the pupils to be transported was recognizedby the Court in Swann as one important limitation onthe time of student travel. Ibid.

These factors were supposed to help guide district courtsin framing equitable remedies in school desegregationcases." And the Court further emphasized that equitabledecrees are inherently sensitive, not solely to the degreeof desegregation to be achieved, but to a variety of otherpublic and private interests:

. . . a school desegregation case does not differfundamentally from other cases involving the fram-ing of equitable remedies to repair the denial of aconstitutional right. The task is to correct, by abalancing of the individual P.,: '.est,,,the condition that offends the C ann,supra, at 15-16.

Those words echoed a similar expression ,, 4.fry . 11,349 U. S., at 229:

"In fashioning and effecting the decrees, the courtswill be guided by equitable principles. Tradition-ally, equity has been characterized by a practicalflexibility in shaping its remedies and by a facility

." See United States v. Texas Education Agency, 467 F. 2d 848, 883(CA5 1972) (Bell, J., concurring in an opinion in which seven otherjudges joined):

"In our view the remedy which the district court is required toformulate should be formulated within the entire context of theopinion in Swann v. Charlotte-Mecklenburg Board of Educa-tion. . . . [Emphasis added.]"

1

24 KEYES v. SCHOOL DISTRICT NO. I, DENVER, COLO.

for adjusting and reconciling public and privateneeds."

Thus in school desegregation cases, as elsewhere, equitycounsels reason, flexibility and balance. See, e. g , !demonv. Kurtzman, U. S. (1973). I am aware, ofcourse, that reasonablc..3ss in any area is a relative andsubjective concept. But with school desegregation, rea-sonableness would seem to embody a balanced evaluationof the obligation of public school boards to promote deseg-regation with other, equally important educational inter-ests which a k.ominunity may legitimately assert. Neglectof either the obligation or the interests destroys the even-handed spirit with which equitable remedies must beapproached." Overzealousness in pursuit of any singlegoal is untrue to the tradition of equity and to the "bal-ance" and "flexibility- whic., this Court has atwaysrespected.

B

Where school authorities have defaulted in their dutyto operate an integrated school system: district courtsmust insure that aflirmative desegregative steps ensue.Many of these can be taken effectively without dam-aging state and parental interests in having children at-tend schools within a reasonable vicinity of home.Where desegregative steps are possible within the frame-work of a system of "neighborhood education." schoolauthorities must pursue them. For example, bound-

19 The relevant inquiry is "whether the costs of achietng desegre-gation in an given situation outweigh the legal, moral and educa-tional considerations favoring it. . . . It is dear . . . that theConstitution should not be held to require any transportation ph.tithat keeps children Oa a bus for a substantial part of the day, con-sumes signifi,:ant portions of funds otherwise spendanie directly oneducation, or involves a genuine element of danger to the safety ofthe child." School Desegregation After Swann: A Theory of Gov-ernment Responsibility, 39 U. Chi. L. Re. 421, 422, 443 (1972).

dent body. Construction of new schools should be ofsuch a size and at such a location as to encourage thelikelihood of integration, Swann, at 21. Faculty integra-tion should be attained throughout the school system,Swann, at 19.; United States v. Montgomery CountyBoard of Education. 395 U. S. 225 (1969). An optionalmajority to minority transfer program, with the Stateproviding free transportation to desiring students, is alsoa helpful adjunct to a desegregated school system.Swann, at 26-27. It hardly need be repeated that alloca-tion of resources within the school district must be madewith scrupulous fairness among all schools.

The above examples are meant to be illustrative, notexhaustive. The point is that the over-all integrativeimpact of such school board decisions must be assessed bydistrict courts in deciding whether the duty to desegregatehas been met. For example, "neighborhood school plan:.are constitutionally suspect when attendance zones aresuperficially imposed upon racially defined neighborhoods,and when school construction preserves rather than elimi-nates the racial hegemony of given schools."' Keyesv. School District No. 1, Denver Colorado, F. 2d.United States v. Board of Education of Tulsa County,429 F. 2d , 1258-1259. This does not imply thatdecisions on faculty assignment, attendance zones, schoolcorstruction, closing and consolidation, must be madeto the detriment of all neutral, nonracial considerations.But these considerations can, with proper school boardinitiative, generally be met in a manner that will enhancethe degree of school desegregation.

20 A useful study of the historical uses and abuses of the neighbor-hood school concept is M. Weinberg, Race & Place (1967),


No. 71-507

Wilfred Keyes et al..Petitioners,

v.

School District No. 1, Denver,Co'). -ado. et al.


[June 21. 19731

MR. JUSTICE REHNQUIST, dissenting.

IThe Court notes at the outset of its opinion the dif-

ferences between the claims made by the plaintiffs inthis case and the classical "de jure" type of claims madeby plaintiffs in cases such as Brown v. Board of Educa-tion, 347 U. S. 483 (1954). and its progeny. I think the

verauiting school authorities would have, at a mini-mum, the obligation to take affirmative steps of the sortoutlined in the above section, School boards would, ofcourse, be free to develop and initiate further plans topromote school desegregation. In a pluralistic societysuch as ours, it is essential that no racial minority feeldemeaned or discriminated against and that students ofall races learn to play, work, and cooperate with oneanother in their common pursuits and endeavors. Nothing in this opinion is meant to discourage school boardsfrom exceeding minimal constitutional standards in pro-moting the values of an integrated school experience.

A constitutional requirement of extensive studenttransportation solely to achieve integration presents avastly more complex problem. It promises on the onehand a greater degree of actual desegregation, while it in-fringes on what may fairly be regarded as other importantcommunity aspirations and personal rights. Such a re-quirement is further likely to divert attention and re-sources from the foremost goal of any school systemthe best quality education for all pupils. The EqualProtection Clause does indeed command that racial dis-crimination not be tolerated in the decisions of publicschool authorities. But it does not require that schoolauthorities undertake widespread student transportationsolely for the sake of maximizing integration."

21 In fact, due to racially separate residential patterns that char-acterize our major urban areas it is quite unrealistic to think ofachieving in many cities substantial integration throughout theschool district without a degree of student transportation whichwould have the gravest economic and educational consequences.

As Professor Bickel notes:"In most f the larger urban areas, demographic conditions are suchthat no policy that a court can order, and a school board, a city or

2 KEYES v. SCHOOL DISTRICT NO. 1. DENVER, COLO

in making school assignments in such a way as to lessenthat mixing of races that would have resulted from aracially neutral policy of school assignment. If suchclaims are proven, those minority students who as a resultof such manipulative techniques are forced to attendschools other than those that they would have attendedhad attendance zones been neutrally drawn 're undoubt-edly deprived of their constitutional right to equal pro-tection of the laws just as surely as were the plaintiffsin Brown v. Board of Education by the statutorily re-quired segregation in that case. But the fact that invid-ious racial discrimination is prohibited by the Constitutionin the north as well as the south must not be allowed toobscure the equally important fact that the consequencesof manipulative drawing of attendance zones in a schooldistrict the size of Denver does not necessarily result indenial of equal protection to all minority students withinthat district. There are significant differences betweenthn ro ra-.1" uyhinh I/11111i C11,11r04 n n ; vn 011 /Si, (.0 111 elf


This obviously does not mean that bus transportationhas no place in public school systems or is not a per-missible means in the desegregative process. The trans-porting of school children is as old as public education,and in rural and some suburban settings it is as indis-pensable as the providing of books. It is presently esti-mated that approximately half of all American childrenride buses to school for reasons unrelated to integra-tion.' At the secondary level in particular, wherethe schools are larger and serve a wider, more dis-persed constituency than the elementary school, someform of public or privately financed transportation isoften necessary. There is a significant difference, how-ever, in transportation plans voluntarily initiated by localschool boar& for educational purposes and those im-posed by a federal court. The former usually represent anecessary or convenient means of access to the schoolnearest home; the latter often require lengthy trips for nopurpose other than to further integration." Yet the

even a state has the capability to put into effect, will in fact resultin the foreseeable future in racially balanced public schools. Onlya reordering of the environment involving economic and social policyon the broadest conceivable front might have an appreciable impact."Bickel, supra, n. 7, at 132.

22 Estimates vary. Swann, supra, at 29, noted that "eighteen mil-lion of the Nation's public school children, approximately 39%, weretransported to their schools by bus in 1969-1970 in all parts of thecountry." Senator Ribicoff (D.-Conn.) a thoughtful student of thisproblem, stated that "two-thirds of all American children today ridebuses to school for reasons unrelated to integration." 118 Cong. Rec.S2543, Feb. 24, 1972.

23 Historically, distant transportation was wrongly used to pro-mote segregation. "Negro children were generally considered cap-able of travelling longer distances to school and without the aid of anyvehicle. What was too far for a white child became reasonably nearfor a Negro child," Weinberg, supra, n. 20, at 87.

This deplorable history has led some to argue that integrative busrides are justified as atonement for past, segregatory trips and thatneighborhood education is now but a code-word for racial scgrcga-

l

28 KEYFS v. SCHOOL DISTRICT NO. 1, DENVER, COLO.

Court in Swann was unquestionably right in describingbus transportation as "one tool of school desegregation."402 U. S., at 30.24 The crucial issue is when, under whatcircumstances, and to what extent such transportationmay appropriately be ordered. The answer to thisturnsas it does so often in the lawupon a sound exer-cise of discretion under the circumstances.

Swann itself recognized limits to desegregative obliga-tions. It noted that a constitutional requirement of "anyparticular degree of racial balance or mixing . wouldbe disproved . . . ," and sanctioned district court useof mathematical ratios as "no more than a starting pointin the process of shaping a remedy. . . " 402 U. S., at24, 25. Thus particular schools may be all white orall black and still not infringe constitutional rightsif the system is genuinely integrated and school authori-ties are pursuing integrative steps short of extensive anddisruptive transportation. The refusal of the Court inSwann to require racial balance in schools throughout the

tIon. But misuse of transportation in the past does not imply neigh-borhood schooling has no valid nonsegregatory uses for the present.Nor would wrongful transportation in the past justify detrimentaltransportation for the children of today.

24 Some communities had transportation plans in effect at the timeof court desegregation orders. See Swann, supra, at 29, n. 11; Davisv. School Comm'rs of Mobile County, 402 U. S. 33, 34-35 (1971).Courts have used the presence or absence of existing transportationin a district as one factor in framing and implementing desegregationdecrees. United States v. Watson Chapel School District, 446 F. 2d933, 937 (CA8 1971); Northcross v. Board of Educ., 444 F. 2d 1179,,1182-1183 (CA6 1971); Davis v. Board of Educ., 328 F. Supp. 1197,1203 (ED Ark. 1971). Where a school board is voluntarily engagedin transporting students, a district court is, of course, obligated toinsure that such transportation is not undertaken with segregatoryeffect. Where, also, voluntary transportation programs are alreadyin progress, there may be greater justification for court-ordered trans-portation of students for a comparable time and distance to achievegreater integration.


district or the arbitrary elimination of all "one-raceschools," 402 U. S., at 26,, is grounded in a recognition thatthe State, parents, and children all have at stake inschool desegregation decrees legitimate and recognizableinterests.

The personal interest might be characterized as thedesire that children attend community schools nearhome. Dr. James Coleman testified for petitioners attrial that "most school systems organize their schools inrelation to the residents by having fixed school districtsand some of these are very ethnically homogeneous."App. 1549a. In Deal v. Cincinnati Board of Education,396 F. 2d 55, 60 (1966), the Sixth Circuit summarizedthe advantages of such a neighborhood system ofschools:, 25

"Appellants, however, pose the question of whetherthe neighborhood system of pupil placement, fairlyadministered without, racial bias, comports with therequirements of equal opportunity if it neverthelessresults in the creation of schools with predominantlyor even exclusively Negro pupils. The neighbor-hood system is in wide use throughout the nationand has been for many years the basis of schooladministration. This is so because it is acknowl-edged to have several valuable aspects which are anaid to education, such as minimization of safety haz-

25 The term "neighborhood school" should not be supposed todenote solely a walk-in school or one which serves children only inthe surrounding blocks. The Court, has noted, in a different con-text,, that "the word 'neighborhood' is quite as susceptible of varia-tion as the word 'locality.' Both terms are elastic and, dependentupon circumstances, may be equally satisfied by areas measured byrods or by miles." Connally v. General Cowl. Co., 269 Ti. S. 385,395 (1926). In the school context, "neighborhood" refers to relativeproximity, to a preference for a school nearer, rather than moredistant from home.

..,


ards to children in reaching school, economy of costin reducing transportation needs, ease of pupilplacement and administration through the use ofneutral, easily determined standards, and betterhome-school communication."

The neighborhood school does provide greater ease ofparental and student access and convenience, as well asgreater economy of public administration. These areobvious and distinct advantages, but the legitimacy ofthe neighborhood concept rests on more basic grounds."

Neighborhod school systems, neutrally administered, re-flect the deeply felt desire of citizens for a sense of com-munity in their public education. Public schools havebeen a traditional source of strength to our Nation, andthat strength may derive in part from the identification ofmany schools with the personal features of the surround-ing neighborhood. Community support, interest anddedication to public schools may well run higher with aneighborhood attendance pattern: distance may encour-age disinterest. Many citizens sense today a decline inthe intimacy of our institutionshome, church, andschoolL-which has caused a concomitant decline in theunity and communal spirit of our people. I pass nojudgment on this viewpoint, but I do believe that thisCourt should be wary of compelling in the name of con-stitutional law what may seem to many a dissolution inthe traditionni, more personal fabric of their publicschools.

Closely related to the concept of a community andneighborhood education, are those rights and duties par-ents hava with respect to the education of their children.

26 I do not imply that the neighborhood concept must be embodiedin every school system. But where a school board has chosen it,federal judges should accord it respect in framing remedial decrees.


The law has long recognized the parental duty to nurture,support, and provide for the welfare of children, includ-ing their education, In Pierce v. Society of Sisters, 268U., S. 510, 534, 535, a unanimous Court held that:

"Under the doctrine of Meyer v. Nebrqska, 262U. S. 390, we think it entirely plain that the Actof 1922 unreasonably interferes with the liberty ofparents and guardians to direct the upbringing andeducation of children under their control. . . . Thechild is not the mere creature of the state; those whonurture him and direct his destiny have the right,.coupled with the high duty, to recognize and pre-pare him for additional obligations."

And in Griswold v. Connecticut, 381 U., S. 479, 482(1965), the Court noted that in Pierce, "the right to edu-cate one's children as one chooses is made applicable tothe States by the force of the First and FourteenthAmendments." I do not believe recognition of thisright can be confined solely to a parent's choice to senda child to public or private school. Most parents can-not afford the luxury of a private education for theirchildren, and the dual obligation of private tuitions andpublic taxes. Those who may for numerous reasonsseek public education for their children should not beforced to forfeit all interest or voice in the school theirchild attends. It would, of course, be itnpractical toallow the wishes of particular parents to be controlling.Yet the interest of the parent in the enhanced parent-school and parent-child communication allowed by theneighborhood unit ought not to be suprressed by forceof law.

In the commendable national concern for alleviatingpublic school segregation, courts may have overlookedthe fact that the rights and interests of children affectedby a desegregation program also are entitled to consid-


eration. Any child, white or black, who is compelled toleave his neighborhood and spend significant time eachday being transported to a distant school suffers an im-pairment of his liberty and his privacy. Not long ago,James B. Conant wrote that "[a] t the elementary schoollevel the issue seems clear. To send young children dayafter day to distant schools seems out of the question." 27A community may well conclude that the portion of achild's day spent on a bus might be used more creativelyin a classroom, playground, or some other extracurricularschool activity. Decisions such as these. affecting thequality of a child's daily life, should not lightly be heldconstitutionally errant.

To this point I have focused mainly on the personalinterests of parents and children which a community maybelieve to be best protected by a neighborhood systemof schools. But broader considerations lead me to ques-tion just as seriously any remedial requirement of exten-sive student transportation solely to further integration.Any such requirement is certain to fall disproportionatelyon the school districts of our country, depending ontheir degree of urbanization, financial resources, and theirracial composition. Some districts with little or no bi-racial pr )alation will experience little or no educationaldisruption, while others, notably in large. biracial metro-politan areas, must at considerable expense undertakeextensive transportation to achieve the type of integra-tion frequently being ordered by district courts." At atime when public education generally is suffering seriousfinancial malnutrition, the economic burdens of suchtransportation can be severe, requiring both initial capitaloutlays and annual operating costs in the millions of

27 Slums and Suburbs, 29 (1961).28 See n. 21, supra.

KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO., 33

dollars." And while constitutional requirements haveoften occasioned uneven burdens, never have they touchedso sensitive a matter as wide differences in the compulsorytransportation requirements for literally hundreds ofthousands of school children.

The argument for student transportation also overlooksthe fact that the remedy exceeds that which may benecessary to redress the constitutional evil. Let us useDenver as an example. The Denver School Board, byits action and nonaction, may be legally responsible forsome of the segregation u;iat exists. But if one assumesa maximum discharge of constitutional duty by theDenver Board over the past decades, the fundamentalproblem of residential segregation would persist " Itis indeed a novel application of equitable powernot tomention a dubious extension of constitutional doctrineto require so much greater a degree of forced school in-tegration than would have resulted from purely naturaland neutral nonstate causes.

The compulsory transportation of students carries afurther infirmity as a constitutional remedy. With mostconstitutional violations, the major burden of remedialaction falls oa offending state officials. Public officialswho act to infringe personal rights of speech, voting, or

-f' In Memphis, for example, which has no history of husing stu-dents, the minimum transportation plan ordered by the courts willrequire, in the School Board's estimate, an initial capital expenditureof $1,664,192 for buses plus an annual operating cost of $629,192.The Board estimates that a more extensive transportation programto be considered by the district court will require initial capital in-vestments of $3,924,000 and annual operating costs of $1,783,490.The most drastic transportation plan before the district court requiresestimated annual operating costs of from $2,354,220, $2,431,710, or$3,463,100 depending on the Board's transportation arrangements.Northcross v. Board of Education of Memphis City Srh., supra,n. 17,, at 898 (Weiek, J., dissenting).

3° See n. 9, supra.


religious exercise, for example, are obliged to cease theoffending act or practice and, where necessary, institutecorrective measures. It is they who bear the brunt ofremedial action, though other citizens will to varying de-grees feel its effects. School authorities responsible forsegregation must, at the very minimum, discontinue seg-regatory acts. But when the obligation further extendsto the transportation of students, the full burden of theaffirmative remedial action is borne by children and par-ents who did not participate in any constitutionalviolation.

Finally, courts in requiring so far-reaching a remedyas student transportation solely to maximize integration,risk setting in motion unpredictable and unmanageablesocial consequences. No one can estimate the extentto which dismantling neighborhood education will hastenan exodus to private schools, leaving public school sys-tems the preserve of the disadvantaged of both races.Or guess how much impetus such dismantlement givesthe movement from innercity to suburb, and the furthergeographical separation of the races. Nor do we knowto what degree this remedy may cause deterioration ofcommunity and parental support of public schools, ordivert attention from the paramount goal of quality ineducation to a perennially devisive debate over who isto be transported where.

The problem addressed in this opinion has perplexedcourts, school officials, other public authorities, and stu-dents of public education for nearly two decades. Theproblem, especially since it has focused on the "busingissue," has profoundly disquieted the public whereverextensive transportation has been ordered. I make nopretense of knowing the best answers. Yet, the issue inthis and like cases comes to this Court as one of con-stitutional law. As to this issue, I have no doubt what-ever. There is nothing in the Constitution, its history


oruntil recentlyin the jurisprudence of this ( ourtthat mandates the employment of forced transportationof young and teenage children to achieve a single interest,as important as this interest may be. We have strayed,quite far as I view it,, from the rationale of Brown Iand II, as reiterated in Swann, that courts in fashioningremedies must be "guided by equitable principles" whichinclude the "adjusting and reconciling [of] public andprivate needs," Brown II, 349 13. S., at 229.

I urge a return to this rationale. This would result,as emphasized above, in no prohibition on court-orderedstudent transportation in furtherance of desegregation.But it would also require that the legitimate communityinterests in neighborhood school systems be accorded fargreater respect. In the balancing of interests so appro-priate to a fair and just equitable decree, transporta-tion orders should be applied with special caution toany proposal as disruptive of family life and interestsand ultimately of education itselfas extensive transpor-tation of elementary age children solely for desegregationpurposes. As a minimum, this Court should not re-quire school boards to engage in the unnecessary trans-portation away from their neighborhoods of elementaryage children." It is at this age level that neighborhoodeducation performs its most vital educational role. Itis with respect to children of tender years that thegreatest concern exists for their physical and psycholog-

"There may well be advantages in commencing the integrativeexperiences at an early age, as young children may be less likelythan older children and adults to develop an inhibiting racial con-sciousness. These advantages should be considered as school boardsmake the various decisions with the view to achieving and preserv-ing an integrated school system. Supra, p. 10. But in the bal-ancing of all relevant interests, the ad antages of an early integra-tive experience must, and in all fairness should, be weighed againstother relevant advantages and disadvantages and in light of thedemographic characteristics of the particular community.


ical health. It is also here, at the elementary school,that the rights of parents and children are most sharplyimplicated."

IV

The existing state of law has failed to shed light andprovide guidance on the two issues addressed in this opin-ion: (i) whether a constitutional rule of uniform, na-tional application should be adopted with respect to ournational problem of school desegregation and (ii) if so,whether the ambiguibes of Swann, construed to datealmost uniformly in favor of extensive transportation,should be redefined to restore a more viable balanceamong the various interests which are involved. Witall deference, it seems to me that the Court today hasaddressed neither of these issues in a way that will affordadequate guidance to the courts below in this case or leadto a rational, coherent national policy.

The Court has chosen, rather, to adhere to the de facto/de jure distinction under circumstances, and upon arationale, which can only lead to increased and incon-clusive litigation, andespecially regrettableto defer-ment of a nationally consistent judicial position on thissubject. There is, of course, state action in everyschool district in the land. The public schools alwayshave been funded and operated by States and theirlocal subdivisions. It is true that segregated schools,even in the cities of the South, are in large part theproduct of social and economic factorsand the resultingresidential patterns. But there is also not a school dis-

32 While greater transportation of secondary school students mightbe permitted, even at this level the desire of a community for raciallyneutral neighborhood schools should command judicial respect. Itwould ultimately be wisest, where there is no absence of good faith,to permit affected communities to decide this delicate issue of studenttransportation on their own.

KF,YES v. SCHOOL DISTRICT NO. 1, DENVER. COLO. :7

trict in the United States, with any significant minorityschool population, in which the school authoritiesinone way or the otherhave not contributed in somemeasure to the degree of segregation which still prevails.Instead of recognizing the reality of similar, multiplesegregatory causes in school districts throughout thecountry, the Court persists in a distinction whose dualityoperates unfairly on local communities in one section ofthe country and on minority children in the others.

The second issue relates to the ambiguities of Swan nand the judicial disregard of legitimate community andindividual interests in framing equitable decrees. In theabsence of a more flexible and reasonable standard thanthat imposed by district courts after Swann, thedesegregation which will now be decreed in Denver andother major cities may well involve even more extensivetransportation than has been witnessed up to this time.

It is well to remember that the course we are runningis a long one and the goal sought in the endso oftenoverlookedis the best possible educational opportunityfor all children. Communities deserve the freeAom andthe incentive to turn their attention and energies to thisgoal of quality education, free from protracted anddebilitating battles over court-ordered student transpor-tation. The single most disruptive element in educa-tion today is the widespread use of compulsory trans-portation, especially at elementary grade levels. Thishas risked distracting and diverting attention from basiceducational ends, dividing and embittering communities,and exacerbating rather than ameliorating inter-racialfriction and misunderstanding. It is time to return toa more balanced evaluation of the recognized interestsof our society in achieving desegregation with other edu-cational and societal interests a community may legiti-ately assert. This will help assure that integrated


school systems will he established and maintained byrational action, will be better understood and supportedby parents and childreil of both races, and will promotethe enduring qualities of an integrated society so essen-tial to its genuine success.

i

J.


to arrange a nondiscriminatory school system,' Brown v.Board of Education, 349 U. S. 294, 301 (1955) (BrownII) . . . ."

That statemmt is of course correct in the Brown con-text, but in the Brown cases and later ones that havecome before the Court the situation which had invariablyobtained at one time was a "dual" school system man-dated by law, by a law which prohibited Negroes andwhites from attending the same schools. Since underBroom such a law deprived each Negro child of the equalprotection of the laws, there was no need to prove "theelements of de jure segregation as to each and everyschool," since the law itself had required just that sortof segregation.

But in a school district the size of Denver's, it is quiteconceivable that the school board might have engagedin the racial gerrymandering of the attendance boundarybetween two particular schools in order to keep onelargely Negro and Hispano, and the other largely Anglo,as the District Court found to have been the fact in thiscase. Such action would have deprived affected minoritystudents who were the victims of such gerrymandering oftheir constitutional right to equal protection of the law.But if the school board 112.d been evenhanded in its draw-ing of the attendance lines for other schools in the dis-trict, minority students required to attend other schoolswithin the district would have suffered no such depriva-tion. It certainly would not reflect normal English usageto describe the entire district as "segregated" on such astate of facts, and it would be a quite unprecedentedapplication of principles of equitable relief to determinethat if the gerrymandering of one attendance zone wereproven, particular racial mixtures could be required bya federal district court for every school in the district.

It is quite possible, of course, that a school districtpurporting to adopt racially neutral boundary zones


might with respect to every such zone individiously dis-criminate against minorities, so as to produce substan-tially the same result as was produced by the statutorilydecreed segregation involved in Brown. If that werethe case, the consequences would necessarily have to bethe same as were the consequences in Brown. But in theabsence of a statute requiring segregation. there mustnecessarily be the sort of factual inquiry whit was un-necessary in those jurisdictions where racial mixing in theschools was forbidden by law,

Underlying the Court's entire opinion is its apparentthesis that a district judge is at least permitted to findthat if a single attendance zone between two individualschools in the large metropolitan district is found byhim to have been "gerrymandered," the school districtis guilty of operating a "dual" school system, and is ap-parently a candidate for what is in practice a federalreceivership. Not only the language of the Court inthe opinion, but its reliance on the case of Green v.County School Board, 391 U. S. 430, 437-438 (1968),indicates that such would be the case. It would there-fore presumably be open to the District Court to require.inter alia, that pupils be transported great distancesthroughout the district to and from schools whose attend-

-ante zones have not been gerrymandered. Yet unlessthe Equal Protection Clause of the Fourteenth Amend-ment now be held to embody a principle of "taint," foundin some primitive legal systems but discarded centuriesago in ours, such a result can only be described as theproduct of judicial fiat.

Green, supra, represented a marked extension of theprinciples of Brown, v. Board of Education, supra. TheCourt in Green said:

"It is of course true that for the time immediatelyafter Brown II [349 U. S. 294] the concern waswith making an initial break in a long-established


pattern of excluding Negro children from schoolsattended by white children . . . . Under Brown IIthat immediate goal was only the first step, how-ever. The transition to a unitary, nonracial systemof public education was and is the ultimate end tobe brought about . , . ." 391 U. S., at 436.

"Brown II was a call for the dismantling of well-entrenched dual system tempered by an awarenessthat complex and multifaceted problems would arisewhich would require time and flexibility for asuccessful resolution. School boards such as the re-spondent then operating state-compelled dual sys-tems were nevertheless clearly charged with theaffirmative duty to take whatever steps might benecessary to convert to a unitary system in whichracial discrimination would be eliminated root andbranch." 391 U. S., at 437-438.

The drastic extension of Brown which Green repre-sented was barely, if at all, explicated in the latter opin-ion. To require that a genuinely "dual" system bedisestablished, in the sense that the assignment to achild of a particular school is not made to depend on hisrace, is one thing. To require that school boards affirm-atively undertake to achieve racial mixing in schoolswhere such mixing is not achieved in sufficient degree byneutrally drawn boundary lines is quite obviously some-thing else.

The Court's own language in Green makes it unmis-takably clear that this significant extension of Brown'sprohibition against discrimination, alid the conversion ofthat prohibition into an affirmative duty to integrate,was made in the context of a school system which hadfor a number of years rigidly excluded Negroes from at-tending the same schools as were attended by whites.Whatever may be the soundness of that decision in the


context of a genuinely "dual" school system, wheresegregation of the races had once been mandated by law,I can see no constitutional justification for it in a situa-tion such as that which the record shows to have ob-tained in Denver.

II

The Court's opinion gives lip service to the notionthat the inquiry as to whether or not the Denver schooldistrict was "segregated" is a factual one, though it refersin various critical language to the District Court's refusalto find that minority concentrations in the cm: areaschools was the result of discriminatory action on thepart of the school board. The District Court is said tohave "fractionated" the district, ante, p. 3, and to have"held that its finding of intentional segregation in ParkHill was not in any sense material to the question ofsegregatory intent in other areas of the city," ante, p. 3.It is difficult to !Liam what the Court means by the firstof these references, and even more difficult to justify thesecond in the light of the District Court's opinion,

If by "fractionating" the district, the Court meansthat the District Court treated together events that oc-curred during the same time period, and that it treatedthose events separately from events that occurred dur-ing another time span, this is undoubtedly correct. Thisis the approach followed by most experienced and carefulfinders of fact.

In commencing that part of its comprehensive opinionwhich dealt with the "core-area" schools, the DistrictCourt observed:

"The evidentiary as well as the legal approach tothe remaining schools is quite dh._ rent from thatwhich has been outlined above. For one thing, theconcentrations of minorities occurred at an earlierdate, and in some instances, prior to the Brown


decision by the Supreme Court. Community atti-tudes were different, including the attitudes of theschool board members. Furthermore, the transitionswere much more gradual and less perceptible thanthey were in the Park Hill School." (Emphasis sup-plied.) Appendix 57a.

The District Court noted, in its opinion of July 31,1969, the differentiation that the plaintiffs themselveshad made between the so-called "Park Hill" schools andthe "core-area" schools. The plaintiffs had sought apreliminary injunction prohibiting the school board fromrescinding three resolutions which had been adopted bya differently composed school board earlier in 1969 andwhich would have redrawn school boundary lines in thePark Hill area to achieve greater integration. In hisopinion granting that injunction, the D;strict Court said

"Attention at this hearing has focused primarilyon the schools in Northeast Denver, and particu-larly on the area which is commonly called ParkHill. The alleged segregated schools, elementaryand junior high schools ill this area, have acquiredtheir character as such during the past ten years.The primary reason for this is the migration of theNegro community eastward from a confined com-munity surrounding what is commonly called 'fivepoints.' Before 1950 the Negroes all lived in thecommunity bounded roughly by Twentieth Avenueon the south, Twentieth Street on the West, YorkStreet on the east, and Thirty-Eighth Avenue onthe north. The schools in this area were, and arenow, largely Negro schools. Howeve we are notpresently confronted with the validity of this con-dition. Dyeing this period the Negro populationwas relatively small, and this condition had devel-oped over a long period of time. However, by 1960


and, indeed, at the present time this population issizeable. As the population has expanded the movehas been to the east, first to Colorado Boulevard, anatural dividing line, and later beyond ColoradoBoulevard, but within a narrow corridormore orless fixed North-South boundaries. The migrationcaused these areas to become substantially Negroand segregated." Appendix 4a.

Further reference to the District Court's several opin-ions shows that the allegedly discriminatory acts of theschool board in the Park Hill area occu-red between1960 and 1969, in the context of a steadily expandingNegro school population in the Park Hill area andheightened sensitivity on the part of the community tothe problems raised by integration and segregation.

The allegedly discriminatory acts with respect to the"core-area" schoolsNew Manual High School, Cole Jun-ior High School, Morey Junior High School, and Boule-vard and Columbine Elementary Schoolstook place be-tween the years 1952 and 1961. They took place, asindicated by the references to the District Court's opin-ion noted above, not in a context of a rapidly expandingNegro population, but in a context of a relatively fixedarea of the city that had for an indefinite period of timebeen predominantly Negro.

Thus, quite contrary to the intimation of virtualarbitrariness contained in the Court's opinion, the Dis-trict Court's separate treatment of the claims respectingthese two separate areas was absolutely necessary if acareful factual determination, rather than a jumbledhash of unrelated events, was to emerge from the fact-finding process. The "intent" with which a public bodyperforms an offici..,i act is difficult enough to ascertainunder the most favorable circumstances. See Palmerv. Thompson, 403 U. S. 217 (1971) ; Royster v. McGinnis,

U. S. (1973). Far greater difficulty is encoun-


tered if we are to assess the intentions with which officialacts of a school board are performed ever a period ofyears. Not only does the board 'insist of a number ofmembers, but the membership customarily turns over asa result of frequent periodic elections. Indeed, it wasas a result of the 1969 e'.ection for membership on theDenver School Board teat the board's policy which hadpreviously favored the correction of racial imbalance byimplementation of resolutions was reversed by the elec-tion of new members to the board.

These difficulties obviously i'o not mean that the in-quiry must ly; abandoned, but they do suggest that thecare with which the District Court conducted it in thiscase is an a3solutely essential ingredient to its successfulconclusion.

The Ccrirt's bald statement that the District Court"held tha , its finding of additional segregation in ParkHill was not in any sense material to the question ofsegregatoiy intent in other areas of the city" is flatlybelied by , he following statement in the District Court'sopinion:

"Althoulh past discriminatory acts may not be asubstantial factor contributing to present segrega-tion, they may nevertheless be probative on the issueof the segril.ative purpose of other discriminatoryacts which an in fact a substantial factor in causinga present segrclated situation." Appendix 70a.

Thus, it is apparent that the District Court was fullyaware that it might taii, into consideration the intentionwith which it found the school board to have performedone act in assessing its intention in performing anotheract. This is the most thAt the references in the Court'sopinion to evidentiary t eatises such as Wigmore andMcCormick support. Aad it should be noted that thecases cited by the Court, and by the authors of thetreatises, almost 'nvEr.iably deal with the intention of a

1

10 KEYES v. SCHOOL DISTRICT NO, 1, DENVER, COLO.

particular individual or individuals, and not with the"intention" of a public body whose membership is con-stantly changing.

The Court's opinion totally confuses the concept of apermissible inference in such a situation, of which theDistrict Court indicated it was well aware, with whatthe Court calls a "presumption" and what it calls a"shifting of the burden of proof" and a "shifting of theburden of going forward with the evidence." No casefrom this Court has ever gone further in this area thanto suggest that a finding of intent in one factual situa-tion may support a finding of fact in another relatedfactual situation involving the same actor, a principlewith which, as indicated above, the District Court wasthoroughly familiar.

The District Court cases cited by the Court representalmost entirely the opinions of judges who were them-selves finders of fact, concluding as a part of the fact-finding process that intent with respect to one act maysupport a conclusion of a like intent with respect toanother, This is but a restatement of the principle ofwhich the Dis.rict Court showed it was aware. Andobviously opinions of courts of appeals upholding suchfindings of the District Court do not themselves sup-port any broader proposition than do the opinions ofthe District Court in question,

Chambers v. Hendersonville City Board of Education,364 F.. 2d 189 (CA4 1966), and North Carolina TeachersAssociation v, Asheboro City Board of Education, 393F., 2d 736 (CA4 1968), involved a background of segre-gation by a law in the State of North Carolina and "thefailure of the public school system to desegregate incompliance wit!' the mandates of Brown until forced todo so by litigation." The courts held that the declina-tion in the ranks of the Negro teachers while whiteteachers were unaffected, raised an inference of discrim-

KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. ]]

illation which cast upon the school board the burden ofjustifying such decimation. In each case, the schoolboard had offered virtually no evidence supporting anynondiscriminatory basis for the result reached. The casesare thus wholly different in their factual backgroundfrom the case now before the Court.

Also worthy of note is the fact that neither in Cham-bers nor in Asheboro did the Court of Appeals remandfor a further hearing, but in effect ordered judgments forthe appellant on the issue considered. This amountedto a determination that the factual finding of the DistrictCourt on that issue was "clearly erroneous," and thestatement as to presumption was a statement w to theappellate court's method of evaluating the factual finding.This Court is in quite a different position in review-ing this case, with the factual finding of the DistrictCourt having been affirmed by the Court of Appeals forthe Tenth Circuit, than was the Court of Appeals forthe Fourth Circuit in reviewing the factual findings ofthe District Courts that were before it in Chambers andin Asheboro. Indeed, it would be contrary to settledprinciples for this Court to upset a factual finding sus-tained by the Court of Appeals. "A seasoned and wiserule of this Court makes concurrent findings of twocourts final here in the absence of very exceptional show-ing of error." Comstock v. Group of Institutional In-vestors, 335 IT, S. 211, 214 (1948).

The Court, doubtless realizing the difficulty of justify-ing an outright reversal, instead remands for furtherfactual determination under newly enunciated standardsgoverning the evidentiary treatment of the finding as toPark Hill by the District Court. These standards arecalled in some parts of the opinion an inference, andin other parts a shifting of the burden of going forwardwith the evidence, and in other parts a prima facie case.Quite apart from my disagreement with the majority on


its constitutional law, I cannot believe it is a service toany of the parties to this litigation to require furtherfactual determination under such a vague and impr, _se

mandate. But more fundamentally, I believe that adistrict judge thoroughly sympathetic to the plaintiffs'claims gave them the full evidentiary hearing to whichthey were entitled and carefully considered all of theevidence before him. He showed full awareness of theevidentiary principle that he might infer from the "segre-gatory intent" with which he found the board to haveacted in the Park Hill area a like intent with respect tothe core area, but he deliberately declined to do so. Thiswas his prerogative as the finder of fact, and his con-clusion upon its affirmance by the Court of Appeals isbinding upon us.

III

The Court has taken a long leap in this area of con-stitutional law in equating the district-wide consequencesof gerrymandering individual attendance zones in a dis-trict where separation of the races was never requiredby law with statutes or ordinances in other jurisdictionswhich did so require. It then adds to this potpourri aconfusing enunciation of evidentiary rules in order tomake it more likely that the trial court will on remandreach the result which the Court apparently wants it toreach. Since I believe neither of these steps is justifiedby prior decisions of this Court, I dissent.

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