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High Court Eases Federal Guidelines For Desegregation

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WASHINGTON--The U.S. Supreme Court last week made it easier for school districts to be relieved from some federal court supervision of their desegregation programs, even when they have not implemented all aspects of their programs or when racial imbalances persist because of population shifts beyond their control.

Ruling in a closely watched case from DeKalb County, Ga., the High Court held that federal judges may relinquish control of desegregation plans in stages, such as by ending supervision of student assignments while maintaining oversight of faculty allocation or other factors.

In addition, a brittle coalition of five justices held that school systems once segregated by law need not remedy racial imbalances caused by demographic shifts and other factors not under their control.

"Racial balance is not to be achieved for its own sake,'' wrote Associate Justice Anthony M. Kennedy for the majority in Freeman v. Pitts (Case No. 89-1290). "Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies.''

The Court's March 31 decision reversed a federal appellate court's ruling that in order to win freedom from court control, the suburban Atlanta school system must maintain racial parity for several years simultaneously in six categories--student assignment, faculty, staff, transportation, physical facilities, and extracurricular activities.

A panel of the U.S. Court of Appeals for the 11th Circuit had ruled in 1989 that the DeKalb district, which has a large number of racially identifiable schools, could not evade responsibility for student racial imbalances by blaming them on demographic changes. The appellate court had also said that the district might have to use busing and other measures to correct the imbalances.

The High Court set aside that ruling and returned the case to the 11th Circuit Court.

Opinions Abound

By issuing four separate opinions, the Justices failed to provide school officials and minority-rights advocates with the unambiguous guidance they had hoped to get on the steps districts must take to be declared unitary, or fully desegregated.

"I mostly think it's a confusing ruling,'' said Christopher A. Hansen, a lawyer for the American Civil Liberties Union, who represented black students and parents in the DeKalb case.

Justice Kennedy's majority opinion was joined by Chief Justice William H. Rehnquist and Associate Justices Antonin Scalia, David H. Souter, and Byron R. White.

Justices Scalia and Souter, however, each wrote a concurring opinion, with Justice Scalia apparently positioning himself to the right of the majority and Justice Souter seeming to stake out ground to its left.

Associate Justices Sandra Day O'Connor and John Paul Stevens joined with Justice Harry A. Blackmun in an opinion that concurred in the majority's judgment but nevertheless had many characteristics of a dissent.

Although the three justices agreed that the DeKalb district can be declared unitary in stages, they questioned whether the district bears no responsibility for the population shifts that have made some schools virtually all-white or all-black.

Associate Justice Clarence Thomas did not vote in the case, which was argued before he was confirmed.

'Incremental Stages'

Justice Kennedy declared that federal judges "have the authority to relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations.''

He said a judge must consider at least three factors before giving up control over an area such as student assignment: whether the district has complied fully with orders governing the category; whether maintaining judicial control over the category in question is necessary to bring about desegregation in other categories; and whether the district has demonstrated its "good-faith commitment'' to the entire desegregation program.

Justice Kennedy was less precise in addressing the role of demographic changes in causing racial imbalances, which was a central issue in the case.

In 1969, when the DeKalb district was first ordered to desegregate, blacks accounted for only 5.6 percent of the system's 70,000 students.

By 1986, when the school system asked the federal court to dismiss the case, nearly half the student population was black, and nearly half of all black students attended schools that were more than 90 percent black.

The shift during the 1970's was due mainly to two factors: migration of blacks from Atlanta into the southern part of the county, and "white flight'' from the south to the north or out of the county altogether.

U.S. District Judge William C. O'Kelley ruled in 1988 that the district had eliminated segregation in several categories of school operations, including student assignments. He said resegregation of some schools was not the result of board action, but was due to the rapid demographic changes that overtook the county.

The judge, however, declined to declare the district fully unitary and kept supervision over teacher assignment, resource allocation, and the overall quality of education in the county.

Judge O'Kelley's order was overturned by the 11th Circuit Court the following year, prompting the school district to appeal to the Supreme Court.

Mobile Society

In analyzing the demographic issue, Justice Kennedy noted that mobility is a "distinct characteristic of our society,'' citing evidence from the lower-court proceedings that "racially stable neighborhoods are not likely to emerge because whites prefer a racial mix of 80 percent white and 20 percent black, while blacks prefer a 50 percent-50 percent mix.''

Justice Kennedy asserted that "it is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts.''

Justice Souter appeared to part company with the majority in his concurring opinion, in which he suggested that the once-segregated system may itself bear responsibility for population shifts because of the "patterns of thinking that segregation creates.''

Federal judges should look closely for evidence of a relationship between the segregated system and demographic shifts before relinquishing control of student assignments in a desegregation plan, he said.

Even after a judge relinquishes control over student assignment, parents may still "identify'' a school as "black'' or "white'' based on the racial composition of the faculty or quality of the facilities, Justice Souter noted. This may cause white parents to move to areas where they see "racially identifiable 'white' schools,'' he said.

A lower court should "reassert control over student assignments if it finds that this does happen,'' he said.

In contrast, Justice Scalia urged a quicker pace for reducing the role of federal judges in supervising school-desegregation efforts.

"At some time, we must acknowledge that it has become absurd to assume, without any further proof, that violations of the Constitution dating from the days when Lyndon Johnson was President, or earlier, continue to have an appreciable effect upon current operation of schools,'' he said. "We are close to that time.''

He added that while the majority's "narrow'' ruling will help resolve the DeKalb case, the Court must "soon'' resolve what to do about the vast majority of other districts where "democratic processes remain suspended, with no prospect of restoration.''

Blackmun's Opinion

In his concurring opinion, Justice Blackmun said that although a court can opt to end "supervision and control'' over subparts of a desegregation program, it must continue "to retain jurisdiction'' over the entire effort.

He strongly disagreed with the majority's view that the DeKalb district had made a good-faith effort to comply with desegregation orders.

In the 38 years since the Supreme Court declared segregated schools unconstitutional in Brown v. Board of Education, "the students in DeKalb County, Ga., never have attended a desegregated school system even for one day,'' he asserted.

Justice Blackmun also admonished district courts to look closely for connections between school-board actions and demographic trends.

"Many families are concerned about the racial composition of a prospective school and will make residential decisions accordingly,'' he said.

The district court in the DeKalb case, he noted, "failed to consider the many ways'' that the school system "may have contributed to the demographic shifts.''

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