Court Hears Case To Declare Ga. District 'Unitary'

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WASHINGTON--The DeKalb County, Ga., school system became desegregated two decades ago and should not be held accountable for racial imbalances that arose in schools later as a result of new housing patterns, a lawyer for the district told the U.S. Supreme Court last week.

Asserting that the re-emergence of racially identifiable schools in the county "was not caused by an action" of the district school board, Rex E. Lee, the district's lawyer, said the system should be allowed to seek freedom from federal-court supervision.

But Christopher A. Hansen, a lawyer for the American Civil Liberties Union Foundation who is representing parents of black children in the district, countered that "[t]he DeKalb County school system has never been fully desegregated." He also said district decisions on school openings and closings had exacerbated racial imbalances.

"This court shouldn't reward a school system which has delayed desegregation for more than 20 years," Mr. Hansen, whose clients are seeking to keep the district under court supervision, told the Justices.

The DeKalb County case, Freeman v. Pitts (Case No. 89-1290), was the first to be heard by the High Court as it began its new term last week with one seat on the bench untilled.

The closely watched case centers on two principal issues: the conditions under which districts can be declared "unitary," or free of the vestiges of official segregation, and thus be relieved of court oversight; and whether districts can be required to correct racial imbalances in schools caused by demographic shifts that occur after a desegregation plan is adopted.

In a decision last January that many legal observers have described as unclear, the High Court held in Board of Education of Oklahoma City v. Dowell that a district may be freed from court supervision once it eliminates the vestiges of desegregation "to the extent practicable." (See Education Week, Jan. 23 and 30, 1991 .)

1969 Plan

Enrolling about 75,000 students in more than 90 schools, the DeKalb County school district in suburban Atlanta is the largest in Georgia. Due largely to an influx of middle and upper-class black families to the southern half of the county in the late 1970's, its proportion of students who are black has increased from about 5 percent in 1965 to more than 60 percent today, according to district officials. (See Education Week, Oct. 9, 1991.)

The district maintained dual attendance zones and separate schools for black and white students until the 1966-67 school year, when it established geographic attendance zones and instituted a "freedom of choice" plan allowing children to transfer to other schools. In 1968, the Supreme Court ruled in a Virginia case, Green v. County School Board of New Kent County, that a freedom-of-choice plan may be inadequate to bring about desegregation. The Court identified six distinct areas of school operations in which integration must take place.

Shortly after the Green decision was handed down, a desegregation class action was filed in federal district court on behalf of black students in DeKalb County.

Under orders from the district court, the DeKalb system in 1969 closed six remaining black schools and abolished its freedom-of-choice plan, thus preventing white students from transferring to heavily white schools and requiting them to attend schools in their neighborhoods.

In 1975, the plaintiffs returned to court to challenge the way in which the school system was assigning teachers under the court order, as well as changes in attendance zones surrounding a new school. The court found no fault with the attendance zone changes, but ordered the district to bring the racial balance of teaching staffs at individual schools more closely into line with the district-wide ratio.

School officials maintain that the system became desegregated shortly after the 1969 order, although the district did not ask the federal court to declare it unitary until 1986. The court denied the request for unitary status, ruling that the system had met its desegregation obligations in four areas outlined in the Green decision-student assignment, transportation, facilities, and extracurricular activities--but that it had failed to meet its obligations in two other areas, faculty and staff assignments and per-pupil expenditures.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled in 1989 that the school system could be declared unitary only after it had maintained racial equality in all six areas outlined in the Green decision for more than three years. The judges told the district to take additional steps to promote desegregation, including the use of mandatory busing of students.

Desegregation Achieved?

Much of the discussion during last week's arguments before the Supreme Court centered on whether the DeKalb County system had in fact been desegregated for a period of several years, beginning in 1969, before the county experienced a demographic shift in the 1970's.

Mr. Lee, the school district's lawyer and a former U.S. Solicitor General, told the Court that, because the black student population had been evenly distributed throughout the county in 1969, merely requiring students to attend their neighborhood schools had brought about integration. The racial imbalances now found in schools, he said, were the result of the later demographic changes.

"There was no question there was a racial balance ]following the 1969 order]?" Associate Justice Byron R. White asked Mr. Lee.

"We were in balance within a short time after the order," Mr. Lee replied.

Lawyers for the school district have maintained in a brief submitted to the Court that their opponents had conceded, beth at the district- and appellate-court levels, that the district had been desegregated for a period after 1969. The Court thus should reject the other parties' "13th-hour attack" on the lower courts' factual findings, the brief said.

But Mr. Hansen of the A.C.L.u. said his side had conceded only that the district had closed its black schools, and had never said that it had ceased other segregative actions. He said that some schools had remained disproportionately black after the 1969 order.

Mr. Hansen cited the district's failure to ask for unitary status until 1986 as evidence that segregation had persisted after the 1969 changes were made.

On the issue of the district's obligation to address demographic changes that occurred after the adoption of the 1969 plan, Mr. Lee told the Justices that the facts in the DeKalb County case were "remarkably similar"to those in the 1976 case Pasadena City Board of Education v. Spangler. In that case, the High Court held that the federal courts' authority over the increasingly black and racially unbalanced California district had ceased after the district had fulfilled its obligation to eradicate the vestiges of segregation.

Last January's 5-to-3 decision in the Oklahoma City desegregation case, Mr. Lee said, also pointed to the Court's view of federal-court supervision of districts as a "temporary measure" to remedy past discrimination, not the ongoing effects of demographic changes.

Associate Justice John Paul Stevens asked Mr. Lee whether the district should have anticipated demographic changes and acted to offset the increase in the number of identifiably black schools.

"There was little we could have done" to offset demographic changes, Mr. Lee responded.

Associate Justice Sandra Day O'Connor asked Mr. Lee if the existence of racially identifiable schools during the 1970's had contributed to further segregation. Mr. Lee said it had not.

Mr. Hansen, however, contended that, as black families moved into the southern part of the county, the school beard dosed schools near the center of the county that would have lessened segregation, and at the same time opened schools on its periphery that made the effects of segregation worse. Thus, he said, the district should be required to bring about complete racial balance in its schools.

DeKalb County's enrollments are disproportionately black to the south and white to the north.

Compliance With Key Factors

The arguments last week also addressed the question of whether the school system must show that it has simultaneously overcome and sustained desegregation in six key aspects of its operations, as the appellate court held.

Mr. Hansen argued that the six factors identified in the 1968 Green decision operate "in lockstep" and cannot be considered separately.

But Mr. Lee maintained that the courts should judge the school board's efforts to overcome the vestiges of segregation by evaluating the district's progress in individual areas of school operation.

Solicitor General Kenneth W. Start, who presented arguments supporting the school district on behalf of the Bush Administration, asserted that the district had made a "good faith" effort to integrate and should not be prevented from seeking umtary status because of "rather technical" non-compliance in the two areas cited by the appellate court.

With a successor to retired Associate Justice Thurgood Marshall not yet confirmed, only eight Justices heard the DeKalb County case.

Vol. 11, Issue 07, Pages 1, 22-23

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