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Blackmun's Concurrence

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JUSTICE BLACKMUN, with whom JUSTICE STEVENS and JUSTICE O'CONNER join, concurring in the judgment....

... I agree that in some circumstances the district court need not interfere with a particular portion of the school system, even while, in my view, it must retain jurisdiction over the entire system until all vestiges of state-imposed segregation have been eliminated. I also agree that whether the district court must order [the DeKalb County schools] to balance student assignments depends on whether the current imbalance is traceable to unlawful state policy and on whether such an order is necessary to fashion an effective remedy. Finally, I agree that the good faith of the school board is relevant to these inquiries.

I write separately for two purposes. First, I wish to be precise about my understanding of what it means for the district court in this case to retain jurisdiction while relinquishing "supervision and control'' over a subpart of a school system under a desegregation decree. Second, I write to elaborate on factors the district court should consider in determining whether racial imbalance is traceable to board actions and to indicate where, in my view, it failed to apply these standards.

... [T]his Court has recognized that when the local government has been running de jure segregated schools, it is the operation of a racially segregated school system that must be remedied, not discriminatory policy in some discrete subpart of that system. Consequently, the Court in the past has required and decides again today that even if the school system ceases to discriminate with respect to one of the Green-type factors, "the [district] court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed.'' ...

The obligations of a district court and a school district under its jurisdiction have been clearly articulated in the Court's many desegregation cases. Until the desegregation decree is dissolved under the standards set forth in Dowell, the school board continues to have "the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.'' The duty remains enforceable by the district court without any new proof of a constitutional violation, and the school district has the burden of proving that its actions are eradicating the effects of the former de jure regime.

Contrary to the court of appeals' conclusion, however, retaining jurisdiction does not obligate the district court in all circumstances to maintain active supervision and control, continually ordering reassignment of students. The "duty'' of the district court is to guarantee that the school district "eliminates the discriminatory effects of the past as well as to bar like discrimination in the future.'' This obligation requires the court to review school-board actions to ensure that each one "will further rather than delay conversion to a unitary, nonracial nondiscriminatory school system.'' But this obligation does not always require the district court to order new, affirmative action simply because of racial imbalance in student assignment.

Whether a district court must maintain active supervision over student assignment, and order new remedial actions depends on two factors. As the Court discusses, the district court must order changes in student assignment if it "is necessary or practicable to achieve compliance in other facets of the school system.'' The district court also must order affirmative action in school attendance if the school district's conduct was a "contributing cause'' of the racially identifiable schools. It is the application of this latter causation requirement that I now examine in more detail.

[The DeKalb County school district] claims that it need not remedy the segregation in DeKalb County schools because it was caused by demographic changes for which [the district] has no responsibility. It is not enough, however, for [the Dekalb County district] to establish that demographics exacerbated the problem; it must prove that its own policies did not contribute. Such contribution can occur in at least two ways: [The district] may have contributed to the demographic changes themselves, or it may have contributed directly to the racial imbalance in the schools.

To determine [the district's] possible role in encouraging the residential segregation, the court must examine the situation with special care.... Close examination is necessary because what might seem to be purely private preferences in housing may in fact have been created, in part, by actions of the school district.... This interactive effect between schools and housing choices may occur because many families are concerned about the racial composition of a prospective school and will make residential decisions accordingly. Thus, schools that are demonstrably black or white provide a signal to these families, perpetuating and intensifying the residential movement.

School systems can identify a school as "black'' or "white'' in a variety of ways; choosing to enroll a racially identifiable student population is only the most obvious. The Court has noted: "The use of mobile classrooms, the drafting of student-transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition.'' Because of the various methods for identifying schools by race, even if a school district manages to desegregate student assignments at one point, its failure to remedy the constitutional violation in its entirety may result in resegregation, as neighborhoods respond to the racially identifiable schools. Regardless of the particular way in which the school district has encouraged residential segregation, this Court's decisions require that the school district remedy the effect that such segregation has had on the school system.

In addition to exploring the school district's influence on residential segregation, the district court here should examine whether school-board actions might have contributed to school segregation. Actions taken by a school district can aggravate or eliminate school segregation independent of residential segregation. School-board policies concerning placement of new schools and closure of old schools and programs such as magnet classrooms and majority-to-minority transfer policies affect the racial composition of the schools. A school district's failure to adopt policies that effectively desegregate its schools continues the violation of the Fourteenth Amendment. The Court many times has noted that a school district is not responsible for all of society's ills, but it bears full responsibility for schools that have never been desegregated.

The district court's opinion suggests that it did not examine [the Dekalb County district's] actions in light of the foregoing principles. The court did note that the migration farther into the suburbs was accelerated by "white flight'' from black schools and the "blockbusting'' of former white neighborhoods. It did not examine, however, whether [the district] might have encouraged that flight by assigning faculty and principals so as to identify some schools as intended respectively for black students or white students. Nor did the court consider how the placement of schools, the attendance-zone boundaries, or the use of mobile classrooms might have affected residential movement. The court, in my view, failed to consider the many ways [the district] may have contributed to the demographic shifts.

Nor did the district court correctly analyze whether [the district's] past actions had contributed to the school segregation independent of residential segregation. The court did not require [the district] to bear the "heavy burden'' of showing that student-assignment policies--policies that continued the effects of the dual system--served important and legitimate ends. Indeed, the district court said flatly that it would "not dwell on what might have been,'' but would inquire only as to "what else should be done now.'' But this Court's decisions require the district court to "dwell on what might have been.'' In particular, they require the court to examine the past to determine whether the current racial imbalance in the schools is attributable in part to the former de jure segregated regime or any later actions by school officials....

The district court apparently has concluded that [the DeKalb County district] should be relieved of the responsibility to desegregate because such responsibility would be burdensome. To be sure, changes in demographic patterns aggravated the vestiges of segregation and made it more difficult for [the district] to desegregate. But an integrated school system is no less desirable because it is difficult to achieve, and it is no less a constitutional imperative because that imperative has gone unmet for 38 years....

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