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Published in Print: February 27, 1991, as Court To Decide 'Unitary' Status Of District in Ga.

Court To Decide 'Unitary' Status Of District in Ga.

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Washington--Seizing a new opportunity to define the point at which a formerly segregated school system becomes "unitary" and may be freed from federal court supervision, the U.S. Supreme Court last week agreed to consider ending court-ordered desegregation in the DeKalb County, Ga., schools.

In agreeing to hear arguments in Freeman v. Pitts (Case No. 89-1290), the Court also signaled that it would consider what role housing patterns should play in determining whether a district has met its constitutional duty to desegregate.

The Court accepted the case, a 22-year-old dispute over court efforts to integrate the suburban Atlanta school district, without comment.

Also last week, the Court declined to review another desegregation case, School District No. 1 v. Keyes (No. 89-1698), in which Denver school officials are contesting a federal district judge's decision not to declare the district unitary.

A third desegregation case seeking to specify the conditions under which a district can be declared unitary, Board of Education of Topeka, Kan. v. Brown (No. 89-1681), is also pending before the Court.

Court authorities said arguments in the DeKalb County case are unlikely before the Court's fall session.

The Justices' decision to accept the case comes a month after the Court ruled that school districts that were once racially segregated by law may be freed from court-ordered desegregation plans if they have done their best to eradicate the vestiges of their discriminatory systems and met court orders.

Lawyers suggested last week that the Court accepted the case in an effort to clarify issues not settled by the January ruling in Board of Education of Oklahoma City v. Dowell (No. 89-1080) and to provide guidance to school officials.

Also, they said, the Court may be seeking input from Associate Justice David H. Souter on desegregation questions.

Joining the Court after it had heard arguments in October in the Oklahoma City case, Mr. Souter did not participate in those deliberations.

In its Oklahoma City decision, the Court ruled 5-to-3 that a federal appeals court erred in ruling that the district could not abandon a desegregation plan for lower grades and return to neighborhood schools. But the Court also did not end the desegregation action outright.

While they noted that courts have used the term "unitary" inconsistently in explaining what is meant by sufficient school desegregation, the Justices themselves did not define the term explicitly. They also mentioned, but did not lay to rest, questions of ties between housing patterns and school segregation. (See Education Week, Jan. 23, 1991.)

'Unresolved Issues'

"I think you can say that Oklahoma City left a lot of issues unresolved" but that the Court sees a need to deal with them, said David S. Tatel, a civil-rights lawyer.

DeKalb County school officials expressed satisfaction with the Court's decision to accept their case; officials in Denver had no comment on the Justices' decision not to hear arguments in theirs.

"We have felt all along that our case presents important issues which merit resolution at the highest judicial level, and we are looking forward to that resolution," said Robert R. Freeman, superintendent of the DeKalb County schools.

Supreme Court action "will eliminate much of the uncertainty which, in itself, is disruptive to the system," he added.

In petitioning for Supreme Court review, the district argued that it was forced "to remedy the segregative effects of massive demographic changes ... completely beyond the school district's control."

Marcia Borowski, a lawyer for citizens pursuing additional desegregation efforts by the district, said she was concerned that the Supreme Court accepted the case, instead of allowing lower-court rulings to stand.

Nonetheless, she said, the Oklahoma City ruling indicated that the High Court is "standing firmly behind school desegregation" and will continue to do so.

Still, she added, "I'd rather not have to go and prove it all over again."

Six Areas Cited

Enrolling some 80,000 students, the DeKalb County district is the largest school system in Georgia. According to district officials, the proportion of black students increased from 6 percent of the total enrollment in 1968 to 57 percent in 1989.

In 1987, the school board asked the U.S. District Court in Atlanta to declare the district unitary.

The court found that the system had met its desegregation obligations regarding student assignments, transportation, facilities, and extracurricular activities, but not with respect to faculty and staff assignments.

In October 1989, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled, however, that a district can be declared unitary only if it simultaneously maintains racial equality in all six areas for at least three years.

It said the school system needed to take more far-reaching steps, including busing, to further promote integration.

According to the appeals court, "after 20 years of court supervision," the school system "continues to operate racially identifiable schools ... has never achieved unitary status, and ... retains the duty to eliminate all vestiges of the dual school system."

In the Denver case, a federal district court ruled in 1987 that court supervision of the district's desegregation efforts could be relaxed but not entirely lifted and that the district was not yet unitary.

The U.S. Court of Appeals for the 10th Circuit agreed last year that "the district has not accomplished all desegregation possible and practical" and affirmed the lower court.

Lawyers for Denver citizens promoting greater district desegregation efforts applauded the Supreme Court's decision not to accept the case.

"It's a little bit strange" that the Justices took the DeKalb County case but not the Denver case, said E. Richard Larson, national legal director for the Mexican-American Legal Defense and Educational Fund.

But, he said, the discrepancy might be explained by the differences in the suits. While the federal district court in the DeKalb County case appeared sympathetic to the4district, Mr. Larson said, the opposite occurred in the Denver case.

A second difference, said Gordon G. Greiner, another lawyer for the citizens' group, is that the Colorado Constitution contains an anti-busing provision.

"Clearly, I think we need the protection" offered by court supervision to preclude problems with the anti-busing measure and to ensure further avenues for redress if necessary, Mr. Greiner said.

Sex-Discrimination Case

Also last week, the Supreme Court asked the U.S. Solicitor General to provide the government's views on a sex-discrimination case pending before the Court, Franklin v. Gwinnett County School District (No. 90-918).

The case, which centers on an alleged sexual relationship between a female high-school student and a male teacher, raises questions about financial compensation under Title8IX of the Education Amendments Act of 1972, which bars sex bias in federally funded education programs.

The plaintiff claims that Title IX allows payment of compensatory damages to "victims of intentional discrimination."

The district claims that "Title IX does not authorize compensatory damages to an individual."

A federal district court dismissed the case. The U.S. Court of Appeals for the 11th Circuit affirmed the lower court.

The Court also declined to review:

Castro v. New York City Board of Education (No. 90-6516). A discharged teacher complained his due-process rights were violated. A federal district court dismissed his suit; the court of appeals affirmed.

Massillon Board of Education v. Farber (Case No. 90-620). A teacher sued the Massillon, Ohio, schools over alleged sex and age bias. A federal district court awarded her some damages but ruled for the schools on her sex-discrimination claims. The appeals court reversed the sex-bias ruling.

Vol. 10, Issue 23, Page 1, 29

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