By Liz Schevtchuk Armstrong — January 23, 1991 7 min read
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Washington--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, a divided U.S. Supreme Court ruled last week.

By a vote of 5 to 3, the High Court held that a federal appeals court erred in ruling that the Oklahoma City public schools could not abandon a 13-year return to neighborhood schools.

Chief Justice William H. Rehnquist, writing for the majority, said that federal court supervision of school systems had always been “intended as a temporary measure to remedy past discrimination” and was never meant “to operate in perpetuity.”

Neither the U.S. Constitution nor legal precedents demand the “Draconian result” that such school systems be under judicial scrutiny for the indefinite future, he wrote in Board of Education of Oklahoma City v. Dowell (Case No. 89-1080).

The High Court told a federal district court to determine whether the Oklahoma City school board “had complied in good faith with the desegregation decree” issued by a federal district court in 1972 “and whether the vestiges of past discrimination had been eliminated to the extent practicable.”

To resolve such issues, the lower court “should look not only at student assignments, but to every facet of school operations--faculty, staff, transportation, extra-curricular activities, and facilities,” the Court ordered. Three dissenting Justices, led by Justice Thurgood Marshall, said that the ruling “suggests that 13 years of desegregation was enough” and that the court’s instruction to the lower court “fails to recognize explicitly the threatened re-emergence of one-race schools as a relevant ‘vestige’ of de jure segregation.”

The ruling also “risks subordination of the constitutional rights of Afro-American children to the interest of school-board autonomy,” the dissenters wrote.

The Dowell decision is the High Court’s first major desegregation ruling in nearly a decade, and will be closely read in coming weeks for guidance on what steps a district must take in order to be declared “unitary,” or fully integrated, and what desegregation obligations, if any, remain after it attains that status.

The case began in 1961, and in 1963 a federal district court held that Oklahoma City intentionally segregated its schools by race.

Determining in 1972 that integration efforts were lagging, a federal district court imposed a desegregation scheme that included mandatory busing. Five years later, the court concluded that the plan had worked and that the district could be declared unitary.

In 1985, the school board voted to end mandatory busing in grades 1 through 4 in favor of a system of neighborhood schools. 3

Black citizens later challenged that plan, arguing that the school system was not unitary and that implementing the plan would resegregate the schools.

Even though 11 elementary schools that had been integrated under the busing plan then became highly segregated, a district judge upheld the plan in 1987, saying that the board had not intended to discriminate. The new school segregation, he said, resulted from segrega tion in housing, over which the school district had no control.

In 1989, the U.S. Court of Appeals for the 10th Circuit overturned that ruling, saying that the district could take action that would lead to reseH gregation only if it could show “grievous wrong evoked by new and unforeseen conditions.”

In its opinion, the High Court held that “the test espoused by the court of appeals would condemn a school district, once governed by a board which intentionally discriminated, to judicial tutelage for the indefinite future.” Such a test is “more strin gent than is required,” Justice Rehnquist wrote for the majority.3

Joining in the opinion were Jus tices Byron R. White, Sandra Day O’Connor, Antonin J. Scalia, and Anthony M. Kennedy. Justices John Paul Stevens and Harry A. Blackmun joined Justice Marshall’s dissent. Justice David H. L4 Souter had not been confirmed when the Court heard arguments in October, and therefore did not participate in the ruling.3

The Justices declined to order that the injunction against the dis trict be lifted, and instead told the district court to ascertain “whether the board made a sufficient showing of constitutional compliance” to jus tify an end to the injunction. They likewise cautioned that anti-discrimination laws would still apply to school districts freed from court su pervision.

“A district court need not accept at face value the profession of a school board which has intentionally dis criminated that it will cease to do so in the future,” the High Court said.

Nevertheless, the Justices added, when lower courts ponder whether to dissolve a desegregation decree, “a school board’s compliance with previous court orders is obviously relevant.”

In the Oklahoma City case, they noted, “the board complied with the decree in good faith until 1985.”

“The legal justification for dis placement of local authority by an injunctive decree in a school-deseg regation case is a violation of the Constitution by the local authori ties,” the Supreme Court said.

Citing previous rulings, the court added that “dissolving a desegrega tion decree after the local authori ties have operated in compliance with it for a reasonable period of time properly recognizes that ‘neces sary concern”’ for local control of schools requires court control to “not extend beyond the time required to remedy the effects of past intention al discrimination.” If the lower court finds that the desegregation decree should be end ed, the judge should next reconsider whether the current housing patL terns are a lingering result of school segregation, the Court said in a foot note to its decision. The Justices pointed out that a district that has been released from a court-ordered desegregation plan no longer needs the court’s approval for changes in policy governing stu dent assignment and other issues, but it “of course remains subject to the mandate of the Equal Protection Clause of the 14th Amendment.” The 1985 plan would have resulted in 11 of 64 elementary schools being more than 90 percent black, 31 being racially mixed, and 22 being more than 90 percent white-plus-other-mi8orities, the High Court noted.

In his dissent, Justice Marshall recalled that in the Brown v. Board of Education I ruling, “a unanimous court declared that racially ‘sepaL rate educational facilities are inher ently unequal.”’

“I believe a desegregation decree cannot be lifted so long as conditions likely to inflict the stigmatic injury condemned in Brown I persist, and there remain feasible methods of eliminating such conditions,” he “In a district with a history of state- sponsored school segregation, racial separation, in my view, remains in herently unequal,” he added.

Also in dispute was whether citi zens could contest a 1987 district-H court order dissolving the injunction that imposed the desegregation de cree. The school district contended that the lower-court’s declaration of unitary status in 1977 precluded such a challenge.

“We disagree,” the Supreme Court said, “for the 1977 order did not dissolve the desegregation de cree and the district court’s unitariH ness finding was too ambiguous to bar” challenges of subsequent school-board actions.

Furthermore, the Justices wrote, lower courts have been inconsistent in their use of the term unitary, some using it “to identify a school district that has completely remedied all vestiges of past discrimination,” while others have used it to describe “any school district that has currently desegregated student assignments, whether or not that status is solely the result of a court-imposed desegregation plan.”

“We think it is a mistake to treat words such as ‘dual’ [segregated] and ‘unitary’ as if they were actually found in the Constitution,” the majority said. However, they added, “we are not sure how useful it is to define these terms more precisely.” They also observed that they found the lower court’s 1977 order “unclear with respect to what it meant by unitary and the necessary result of that finding."3

The Justices hence refused to overturn the appellate court’s conclusion that although the 1977 order was binding “as to the unitary character of the district, it did not finally terminate the Oklahoma City school litigation.”

A version of this article appeared in the January 23, 1991 edition of Education Week


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