Marshall's Dissenting Opinion

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Justice Marshall, with whom Justice Blackmun and Justice Stevens join, dissenting.

... The majority today suggests that 13 years of desegregation was enough. The Court remands the case for further evaluation of whether the purposes of the injunctive decree were achieved sufficient to justify the decree's dissolution. However, the inquiry it commends to the District Court fails to recognize explicitly the threatened re-emergence of one-race schools as a relevant "vestige" of de jure segregation.

In my view, the standard for dissolution of a school desegregation decree must reflect the central aim of our school desegregation precedents. In Brown v. Board of Education, (1954) (Brown I), a unanimous Court declared that racially "[s]eparate educational facilities are inherently unequal." This holding rested on the Court's recognition that state-sponsored segregation conveys a message of "inferiority as to th[e] status [of Afro-American schoolchildren] in the community that may affect their hearts and minds in a way unlikely ever to be undone." Remedying this evil and preventing its recurrence were the motivations animating our requirement that formerly de jure segregated school districts take all feasible steps to eliminate racially identifiable schools. See Green v. New Kent County School Bd. (1968); Swann v. Charlotte-Mecklenburg Bd. of Education (1971).

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 of4eliminating such conditions. Because the record here shows, and the Court of Appeals found, that feasible steps could be taken to avoid one-race schools, it is clear that the purposes of the decree have not yet been achieved and the Court of Appeals' reinstatement of the decree should be affirmed. I therefore dissent. ...


I agree with the majority that the proper standard for determining whether a school desegregation decree should be dissolved is whether the purposes of the desegregation litigation, as incorporated in the decree, have been fully achieved. I strongly disagree with the majority, however, on what must be shown to demonstrate that a decree's purposes have been fully realized. In my view, a standard for dissolution of a desegregation decree must take into account the unique harm associated with a system of racially identifiable schools and must expressly demand the elimination of such schools.


Our pointed focus in Brown I upon the stigmatic injury caused by segregated schools explains our unflagging insistence that formerly de jure segregated school districts extinguish all vestiges of school segregation. The concept of stigma also gives us guidance as to what conditions must be eliminated before a decree can be deemed to have served its purpose. ...

Just as it is central to the standard for evaluating the formation of a desegregation decree, so should the stigmatic injury associated with segre8gated schools be central to the standard for dissolving a decree. The Court has indicated that "the ultimate end to be brought about" by a desegregation remedy is "a unitary, nonracial system of public education." Green. We have suggested that this aim is realized once school officials have "eliminate[d] from the public schools all vestiges of state-imposed segregation," Swann (emphasis added), whether they inhere in the school's "faculty, staff, transportation, extracurricular activities and facilities," Green, or even in "the community and administration['s] attitudes toward [a] school," Keyes v. School Dist. No. 1 (1973). Although the Court has never explicitly defined what constitutes a "vestige" of state enforced segregation, the function that this concept has performed in our jurisprudence suggests that it extends to any condition that is likely to convey the message of inferiority implicit in a policy of segregation. So long as such conditions persist, the purposes of the decree cannot be deemed to have been achieved.


The majority suggests a more vague and, I fear, milder standard. Ignoring the harm identified in Brown I, the majority asserts that the District Court should find that the purposes of the decree have been achieved so long as "the Oklahoma City School District [is now] being operated in compliance with the commands of the Equal Protection Clause'' and "it [is] unlikely that the school board would return to its former ways." Insofar as the majority instructs the District Court, on remand, to "conside[r] whether the vestiges of de jure segregation ha[ve] been eliminated as far asel10lpracticable," the majority presumably views elimination of vestiges as part of "operat[ing] in compliance with the commands of the Equal Protection Clause." But as to the scope or meaning of "vestiges," the majority says very little.

By focusing heavily on present and future compliance with the Equal Protection Clause, the majority's standard ignores how the stigmatic harm identified in Brown I can persist even after the State ceases actively to enforce segregation. ... In sum, our school-desegregation jurisprudence establishes that the effects of past discrimination remain chargeable to the school district regardless of its lack of continued enforcement of segregation, and the remedial decree is required until those effects have been finally eliminated.


Applying the standard I have outlined, I would affirm the Court of Appeals' decision ordering the District Court to restore the desegregation decree. For it is clear on this record that removal of the decree will result in a significant number of racially identifiable schools that could be eliminated. ...

Against the background of former state sponsorship of one-race schools, the persistence of racially identifiable schools perpetuates the message of racial inferiority associated with segregation. Therefore, such schools must be eliminated whenever feasible. ...

The majority equivocates on the effect to be given to the re-emergence of racially identifiable schools. It instructs the District Court to consider whether those "'most important indicia of a segregated system"' have been eliminat4ed, reciting the facets of segregated school operations identified in Green--"'faculty, staff, transportation, extracurricular activities and facilities."' And, by rendering "res nova" the issue whether residential segregation in Oklahoma City is a vestige of former school segregation, the majority accepts at least as a theoretical possibility that vestiges may exist beyond those identified in Green. Nonetheless, the majority hints that the District Court could ignore the effect of residential segregation in perpetuating racially identifiable schools if the court finds residential segregation to be "the result of private decisionmaking and economics." Finally, the majority warns against the application of a standard that would subject formerly segregated school districts to the "Draconian" fate of "judicial tutelage for the indefinite future."

This equivocation is completely unsatisfying. First, it is well established that school segregation "may have a profound reciprocal effect on the racial composition of residential neighborhoods." Keyes. The record in this case amply demonstrates this form of complicity in residential segregation on the part of the Board. ...

Second, there is no basis for the majority's apparent suggestion that the result should be different if residential segregation is now perpetuated by "private decisionmaking." The District Court's conclusion that the racial identity of the northeast quadrant now subsists because of "personal preference[s]" pays insufficient attention to the roles of the State, local officials, and the Board in creating what are now self-perpetuating patterns of residential segregation. Even more important, it fails to account for the unique role of the School Board in creating "all-Negro" schools clouded2by the stigma of segregation--schools to which white parents would not opt to send their children. That such negative "personal preferences" exist should not absolve a school district that played a role in creating such "preferences" from its obligation to desegregate the schools to the maximum extent possible.

I also reject the majority's suggestion that the length of federal judicial supervision is a valid factor in assessing a dissolution. The majority is correct that the Court has never contemplated perpetual judicial oversight of former de jure segregated school districts. Our jurisprudence requires, however, that the job of school desegregation be fully completed and maintained so that the stigmatic harm identified in Brown I will not recur upon lifting the decree. Any doubt on the issue whether the School Board has fulfilled its remedial obligations should be resolved in favor of the Afro-American children affected by this litigation.

In its concern to spare local school boards the "Draconian" fate of "indefinite" "judicial tutelage," the majority risks subordination of the constitutional rights of Afro-American children to the interest of school board autonomy. The courts must consider the value of local control, but that factor primarily relates to the feasibility of a remedial measure, not whether the constitutional violation has been remedied. ... In assessing whether the task is complete, the dispositive question is whether vestiges capable of inflicting stigmatic harm exist in the system and whether all that can practicably be done to eliminate those vestiges has been done. The Court of Appeals concluded that "on the basis of the record, it is clear that other measures that are feasible remain available to the Board [to avoid racially identifiable schools]." The School Board does not argue that further desegregation of the one-race schools in its system is unworkable and in light of the proven feasibility of the Finger Plan, I see no basis for doubting the Court of Appeals' finding.

We should keep in mind that the court's active supervision of the desegregation process ceased in 1977. Retaining the decree does not require a return to active supervision. It may be that a modification of the decree which will improve its effectiveness and give the school district more flexibility in minimizing busing is appropriate in this case. But retaining the decree seems a slight burden on the school district compared with the risk of not delivering a full remedy to the Afro-American children in the school system.


Consistent with the mandate of Brown I, our cases have imposed on school districts an unconditional duty to eliminate any condition that perpetuates the message of racial inferiority inherent in the policy of state-sponsored segregation. The racial identifiability of a district's schools is such a condition. Whether this "vestige" of state-sponsored segregation will persist cannot simply be ignored at the point where a district court is contemplating the dissolution of a desegregation decree. In a district with a history of state-sponsored school segregation, racial separation, in my view, remains inherently unequal.

I dissent.

I also strongly agree with the majority's conclusion that, prior to the dissolution of a school desegregation decree, plaintiffs are entitled to a precise statement from a district court. Because of the sheer importance of a desegregation decree's objectives, and because the dissolution of such a decree will mean that plaintiffs will have to mount a new constitutional challenge if they wish to contest the segregative effects of the school board's subsequent actions, the district court must give a detailed explanation of how the standards for dissolution have been met. ...

Faithful compliance with the decree admittedly is relevant to the standard for dissolution. The standard for dissolution should require that the school district have exhibited faithful compliance with the decree for a period sufficient to assure the District Court that the school district is committed to the ideal of an integrated system.

The majority also instructs the District Court to consider whether dissolution was appropriate "as of 1985," prior to the Board's adoption of the [student-reassignment plan]. However, the effect of the Board's re-adoption of neighborhood attendance zones cannot be ignored arbitrarily. A district court, in evaluating whether dissolution of a desegregation decree is warranted, must consider whether conditions exist that are capable of inflicting the stigmatic harms associated with the original violation. The S.R.P. demonstrates that lifting the decree would result in one-race schools which the decree was designed to eliminate. Even in cases lacking such tangible evidence of unremoved vestiges, a district court must anticipate what effect lifting a decree will have in order to assess dissolution.

... On the issue whether residential segregation is a vestige, the relevant inquiry is whether the record shows that the board's past actions were a "contributing cause" to residential segregation. Columbus Bd. of Education v. Penick (1979).

The majority does not discuss the burden of proof under its test for dissolution of a school desegregation decree. However, every presumption we have established in our school desegregation cases has been against the school district found to have engaged in de jure segregation. ...

That "judicial tutelage" over the Oklahoma City School Board subsists at this late date is largely due to the Board's failure to take advantage of opportunities it had at its disposal at the outset. ... A school district's failures in this regard, however, should not lead federal courts, charged with assuring that constitutional violations are fully remedied, to renounce supervision of unfinished tasks because of the lateness of the hour. ...

Research indicates that public schools with high concentrations of poor and minority students have less access to experienced, successful teachers and that the slow pace of instruction at such schools may be ''hinder[ing] students' academic progress, net of their own aptitude levels."

Vol. 10, Issue 18

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