Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Following Swann v. Charlotte-Mecklenburg Board of Education, the Court addressed other legal challenges to district court desegregation orders, and continued to affirm the broad authority of federal courts to order remedial actions1 while also modifying or reversing court orders that it found were unwarranted or excessive given the evidence at issue.2 In Milliken v. Bradley,3 for example, the Court set aside a court-ordered desegregation plan spanning the city of Detroit and fifty-three adjacent suburban school districts. The Court held that such a broad remedy could only be implemented to cure an interdistrict constitutional violation if state officials and officials in those suburban school districts were responsible, at least in part, for the segregation between the districts, through either discriminatory actions affecting the larger Detroit area or constitutional violations within one of the school districts that had produced a substantial segregative effect in another district.4 The Court in Milliken found the evidence insufficient to support an interdistrict remedy in that case.5 The Court stated: “[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy” .6

Especially during the 1970s, courts and Congress grappled with the appropriateness of various remedies for de jure, or state-sanctioned, racial separation in public schools across the country. Among these remedial methods, busing created a great amount of controversy, though the Court in Charlotte-Mecklenburg sanctioned it as a permissible desegregation tool.7 Around that time, Congress enacted several provisions, either permanent statutes or annual appropriations limits, attempting to restrict the power of federal courts and administrative agencies to order or to require busing, but these proved largely ineffectual.8 Stronger proposals, for statutes or for constitutional amendments, were introduced in Congress, but none were enacted.9

With many desegregation decrees in operation across the country, the Court also considered how a school district must comply to free itself of continuing court supervision. In a 1991 case involving Oklahoma City public schools, the Court in Oklahoma City Board of Education v. Dowell10 stated that a desegregation decree may be lifted upon a showing that the purposes of the litigation have been “fully achieved” —that is, that the school district has been operating “in compliance with the commands of the Equal Protection Clause” “for a reasonable period of time,” and that it is “unlikely” to return to its former violations.11 The Court instructed that a lower court assessing whether to lift a desegregation order “should look not only at student assignments, but ‘to every facet of school operations—faculty, staff, transportation, extra-curricular activities and facilities.’” 12 On remand, the trial court was directed to determine “whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past [de jure] discrimination had been eliminated to the extent practicable.” 13

The Court also held that a federal court may incrementally withdraw its supervision over a school district upon a showing of compliance in particular areas of the system, such as student assignment and physical facilities, while retaining jurisdiction over other areas in which the system had not demonstrated full compliance. In its 1992 decision Freeman v. Pitts,14 the Court stated that a federal court “has the discretion to order an incremental or partial withdrawal of its supervision and control,” 15 and may “relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations.” 16

Footnotes

1

402 U.S. 1 (1971). Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) ( “Once a constitutional violation is found, a federal court is required to tailor ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation.’” ); Milliken v. Bradley, 418 U.S. 717, 744 (1974) ( “The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation.” ). See also Hills v. Gautreaux, 425 U.S. 284, 294 n.11 (1976) ( “[T]he Court’s decision in Milliken was premised on a controlling principle governing the permissible scope of federal judicial power.” ).

2

See, e.g., Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434–36 (1976) (holding that the district court had exceeded its authority when it required local authorities to readjust, indefinitely, its student attendance zones every year to avoid the creation of a majority of any minority in any public school in the city, “though subsequent changes in the racial mix in the Pasadena schools might be caused by factors for which the defendants could not be considered responsible” and the local authorities had already instituted a race-neutral student assignment plan). In Hills, the Court wrote that it had rejected the metropolitan order because of “fundamental limitations on the remedial powers of the federal courts to restructure the operation of local and state governmental entities.” 425 U.S. at 293. In other places, the Court stressed the absence of interdistrict violations and in still others paired the two reasons. Id. at 294, 296. In Spallone v. United States, the Court held that a district court had abused its discretion in imposing contempt sanctions directly on members of a city council for refusing to vote to implement a consent decree designed to remedy housing discrimination. 493 U.S. 265 (1990). Instead, the court should have proceeded first against the city alone, and should have proceeded against individual council members only if the sanctions against the city failed to produce compliance.

3

418 U.S. 717 (1974).

4

Id. at 745.

5

Id. While the Court found the evidence insufficient to support an interdistrict remedy, the four dissenters contended, among other things, that pervasive state involvement warranted an interdistrict order; that only an interdistrict order would fulfill the State’s obligation to establish a unitary system; and that the Court’s decision “cripple[d] the ability of the judiciary” to effectively desegregate large metropolitan areas. Id. at 762–81 (White, Douglas, Brennan, and Marshall, JJ., dissenting).

6

Id. at 745. More generally, in a series of cases, the Court disallowed disparate impact analysis in constitutional interpretation and adopted an apparently strengthened intent requirement. Washington v. Davis, 426 U.S. 229 (1976); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977), superseded by statute, Voting Rights Act of 1965 § 2, 42 U.S.C. § 1973; Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979). This principle applies in the school context. Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419 (1977).

7

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30–31 (1971).

8

E.g., Civil Rights Act of 1964 § 407(a), 78 Stat. 248 (codified at 42 U.S.C. § 2000c-6), construed to cover only de facto segregation in Charlotte-Mecklenburg, 402 U.S. at 17–18; Education Amendments of 1972, § 803, 86 Stat. 372 (codified at 20 U.S.C. § 1653) (expired), interpreted in Drummond v. Acree, 409 U.S. 1228 (1972) (Powell, J., in chambers), and the Equal Educational Opportunities and Transportation of Students Act of 1974, 88 Stat. 514 (codified at 20 U.S.C. §§ 1701–1758); see especially id. at § 1714, interpreted in Morgan v. Kerrigan, 530 F.2d 401, 411–15 (1st Cir.), cert. denied, 426 U.S. 935 (1976), and United States v. Tex. Educ. Agency, 532 F.2d 380, 394 n.18 (5th Cir. 1976), vacated on other grounds sub nom. Austin Indep. Sch. Dist. v. United States, 429 U.S. 990 (1976); and a series of annual appropriations riders, first passed as riders to the 1976 and 1977 Labor-HEW bills, § 208, 90 Stat. 1434 (1976), and § 101, 91 Stat. 1460 (codified at 42 U.S.C. § 2000d), upheld against facial attack in Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980).

9

See, e.g., 14th Amendment and School Busing: Hearings Before the Subcomm. on the Const. of the S. Comm. on the Judiciary, 97th Cong. (1982); and School Desegregation: Hearings Before the Subcomm. on Civ. and Const. Rts. of the H. Comm. on the Judiciary, 97th Cong. (1982).

10

498 U.S. 237 (1991).

11

Id. at 247–48 (stating that “a finding by the District Court that [a school district] was being operated in compliance with the commands of the Equal Protection Clause of the Fourteenth Amendment, and that it was unlikely that the school board would return to its former ways, would be a finding that the purposes of the desegregation litigation had been fully achieved” ; also referring to a school board’s compliance with a desegregation order “for a reasonable period of time” before dissolving the desegregation order). See also id. at 248.

12

Id. at 250 (quoting Green v. Cnty. Sch. Bd., 391 U.S. 439, 435 (1968)).

13

Dowell, 498 U.S. at 249–50.

14

503 U.S. 467 (1992).

15

Id. at 489.

16

Id. at 490–91.