LC W. I 2?/31 RP,L_ #' 37” M2554 87-425 A CRS REPORT FOR CONGRESS Government Publications Unit / I / AUG 17 1994 _ A Washington University Libraries / I St. Louis. MO 63130 / JUDICIAL AUTHORITY RELEVANT TO DEPARTMENT T7 OF EDUCATION REVIEW OF DESEGREGATION PLANS BY STATE SYSTEMS OF HIGHER EDUCATION R§Ty . _ 1 £3 E ‘“* w % e I ‘yfiwm Riigggggj I’ RR} R“? ‘t . I €)iD!Rd A i I . _w 4“ IJRSJ kg lj I ' - 0:.‘ ‘ oils-—-j—o1,d—‘.'!. ll ' III- Aa‘ mmJzmm%—£i 4-. ‘_I I 1.0:. By Charles Dale % Legislative Attorney RAmerican Law Division May 1, 1987 uxllnmiiiyfiflfiglnjwmiflWmma The Congressional Research Service works exclusively for gongress, conducting research, analyzing legislation, and ding information at the request of committees, Mem- W ' ers, and their staffs. W‘ " ‘ e Service makes such research available, without parti- _ bias, in many forms including studies, reports, compila- ins, digests, and background briefings. Upon request, CRS assists committees in analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Service’s senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise. JUDICIAL AUTHORITY RELEVANT TO DEPARTMENT OF EDUCATION REVIEW OF DESEGREGATION PLANS BY STATE SYSTEMS OF HIGHER EDUCATION The Office of Civil Rights (OCR) in the Department of Education is v reportedly considering whether the higher educational systems of 10 states, ordered by U.S. District Judge John H. Pratt to desegregate as a result of the longstanding "édamsf litigation, are in compliance with the federal civil rights laws.1 Briefly, suit was first filed in 1970 charging that the former Department of Health, Education and Welfare was derelict in its enforcement of Title VI of the 1964 Civil Rights Act by continuing to grant federal financial assistance to a number of southern states that operated segregated systems of higher education.2 Ultimately, under order by Judge Pratt,3 the ten original "Adams" states, and others added later, submitted desegregation plans to integrate students, faculty and administrators at white and black institutions. The plans for ten of these states -- Virginia, North Carolina, Arkansas, Florida, Oklahoma, Georgia, West Virginia, South Carolina, Missouri, and Delaware -- expired in 1985 and 1986. OCR must now determine the compliance status of these public systems of higher education under the civil rights laws and the Agam§_orders. By way of comparison, this report will review the standards that courts have applied to assess whether a school district's compliance with its constitutional obligation to operate a "unitary" 1 Washington Post, p. A-10 (April 24, 1987). 2 Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973). 3 Adams v. Califano, 430 F.Supp. 118 (D.D.C. 1977). CRS-2 school system is adequate to justify termination of a federal desegregation order. SCOPE OF THE CONSTITUTIONAL DUTY TO DESECREGATE Several of the earliest judicial challenges to "separate but equal" education for blacks and whites involved state systems of higher education.4 While these cases established the general principle that a state must provide "substantially equal" educational opportunities for all its residents, neither they nor later precedent directly address the question of when a higher educational system has satisfied its constitutional obligations and may be freed of further federal intervention. The same issue, however, has with increasing frequency been considered by the courts within the context of elementary and secondary school desegregation, and these cases may be relevant here as well. In Brown I, the Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment forbade state statutes that required or permitted, by local option, separate schools for black and white students.5 The condition that offended the Constitution was not the mere fact of segregation but the policy of assigning students to the public schools on the basis of race. Brown I19 established for remedial framework to enforce Brown I. The Court there remanded the cases to the federal district courts, who were to be "guided by 4 See, e.g., Sweatt v. Painter, 339 U.S. 629 (1950); Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Board of Regents, 332 U.S. 631 (1948). 5 Brown v. Board of Education, 347 U.S. 483 (1954). 6 Brown v. Board of Education, 349 U.S. 294 (1955). CRS-3 equitable principles" and sensitive to the need for "practical flexibility" in framing appropriate relief. Full implementation of these constitutional principles may require solution of varied local problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, the lower federal courts were directed to enter orders "as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."8 For the next two decades, all desegregation cases to reach the Supreme Court involved "dual school systems,’ mainly in the South, with a long history of racial separation pursuant to explicit governmental policy or statute. During the same period, the nature of the obligation imposed on school officials evolved from the mere cessation of overt racial assignments, the target of EEQEE, to elimination of the "vestiges" of the dual school system. A number of lower courts had in the aftermath of grgwn approved so-called "freedom of choice" plans which purported to allow students to attend the school of their choice. These plans were frequently challenged on the ground that they did not lead to a substantial degree of racial desegregation because they placed the entire burden on black students willing to transfer schools in 7 33., at 299. 8 Ed., at 301. CRS-4 the face of opposition from a recalcitrant white community. It was such a plan that came before the Supreme Court in green v. County School Board.9 In §£ggE_the Court dealt both with the constitutionality of "freedom of choice" plans and with the glacial progress of actual desegregation in Southern school districts. The success of desegregation, said the Court, was to be measured by its "effectiveness,' and the "burden" was on local officials "to come forward with a plan that promises realistically to work, and promises realistically to work n2w."1O This burden stemmed from an "affirmative duty," derived by the Court from §£gEE, "to take whatever steps might be necessary to convert [a dual school system] to a unitary system in which racial discrimination would be eliminated root and branch."11 The opinion in Green continued: The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation.... The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state imposed segregation.... Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system "at the earliest practicable date," then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court 9 391 u.s. 430 (1968). 10 £13, at 439. 11 £g,, at 437-38. CRS-5 should retain jurisdiction until it is clear that state im osed segregation has been completely removed. Against this backdrop, the Court vacated the lower court's approval of a freedom of choice plan. Justice Brennan, writing for the Court, observed that the school district was not residentially segregated and that adoption of what amounted to a neighborhood school plan promised effectively to desegregate the district's schools. While freedom of choice plans were not held unconstitutional per se, the district court was obliged to consider whether the relatively simple remedial alternatives, such as assignment to the closest school to a student's home, promised greater effectiveness than the freedom of choice plan advocated by the district. In a companion case to Green, Raney v. Board of Education,13 the Court reversed a lower court order that had dismissed a complaint challenging the adequacy of freedom of choice as a remedy for a dual system. In addition to its discussion of the merits of the plan, the Raney Court also considered when dismissal of an action is proper in a school desegregation case. in so doing, the Court stated that in the circumstances of this case, the District Court's dismissal of the complaint was an improper exercise of discretion. Dismissal will ordinarily be inconsistent with the responsibility imposed on district courts by Brown II [citation omitted]. In light of the complexities inhering in the disestablishment of state-established segregated school systems, Brown II contemplated that the better course would be to retain jurisdiction until it is clear that disestablishment has been achieved. We agree ... that the district courts "should retain jurisdiction in school desegregation cases to 12 39,, at 439. 13 391 u.s. 443 (1968). CRS-6 insure (1) that a constitutionally acceptable plan is adopted, and (2) that it is operated inia constitutionally permissible fashion so that the goal of a desegregated, non—racially operated school system is rapidly and finally achieved." [citations omitted] 4 C .Swann v. Board of Education reaffirmed Green that local school officials have an "affirmative duty" to abolish the "last vestiges" of a dual school system, including all "racially identifiable" schools.15 §£ee2_had "pointed out that existing policy and practice with regard to faculty, staff, transportation, extracurricular activities and facilities were among the most important indicia of a segregated system."16 While there is no duty to make schools identical in all respects, the gwann Court ruled that there is a presumption against schools that diverge markedly from the norm defined by these criteria. In the Court's words, "Independent of student assignment, where it is possible to identify a ‘white school‘ or a ‘Negro school‘ simply by reference to the racial composition of teachers and staff, the quality of buildings and equipment, or the organization of sports activities, a prima. £agie_case of violation of substantive constitutional rights under the Equal Protection Clause is shown."17 In §w3nn, the Court also identified some of the remedial measures available to a district court in exercising its equitable discretion to desegregate a state-imposed dual school system. While the Constitution was held not to require any particular degree of racial mixing in the public 14 11,, at 449. 15 402 u.s. 1 (1971). 15 £93, at 18, citing 391 U.S., at 435. .l7E_ CRS—7 schools, racial ratios of students and faculty were "likely to be a useful starting point in shaping a remedy to correct past constitutional violations."18 Moreover, the Court imposed on school officials a heavy burden of justification for the continued existence of "one-race" schools: No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden on school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part. Accordingly, one-race schools in a state segregated system have to be eliminated to the greatest degree possible and to do so a district court is authorized to consider both the alteration of attendance zones and student transfers to achieve greater racial balance.20 One case to reach the High Court, Pasadena Board of Education v. Spangler,21 considered the duration of a school district's affirmative duty to desegregate. A 1970 desegregation decree contained a provision that no school 18 Ed}, at 25. 19 £93, at 26. 20 lit, at 27. 21 427 u.s. 424 (1976). CRS-8 in the Pasadena School District was to enroll "a majority of any minority students," to remain in effect indefinitely. The order had been literally complied with during its first year, but normal demographic changes thereafter caused some of the schools to slip out of compliance. The district court denied the school board's motion to be relieved from the "no majority of any minority" requirement. The Supreme Court reversed, holding that federal equity power could not be used to remedy these changed conditions and restore the initial racial balance because "these shifts were not attributed to any segregative action on the part of the defendants.” Noting that the demographic trends in the city mirrored state-wide patterns, Justice Rehnquist quoted from Swann: It does not follow that the communities served by [unitary] systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutional required to make Year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination is eliminated from the system.22 tIn other words, once a school system carries out a plan of student desegregation, the district court has no authority to require subsequent modification in the student assignment process to remedy imbalances not attributable to actions of local officials. ’ As noted by E3351, the courts‘ jurisdiction in school desegregation cases is continuing, or as stated there, "the better course would be to retain jurisdiction until it is clear that disestablishment [of the dual school 22 lit, at 436, citing 402 U.S., at 31-32. CRS-9 system] has been achieved."23 Thus, rather than to relinquish jurisdiction entirely, the procedure most often followed by the lower federal courts is to release the school system from detailed regulatory supervision only after the system achieves a stable, unitary status for a period of several years. At precisely what point this "state of constitutional grace" is achieved will vary with the facts and circumstances, demographic or otherwise, confronting each individual school district. In testing whether the past has been eradicated so far as it remains in the power of school officials and courts to do so, we must keep in mind that each school district is unique. The constitutional mandate against racial discrimination is categoric, but the determination of remedies for its past violation turns on the conditions in a particular district [citations omitted]. In like fashion, the decision that public officials have satisfied the responsibility to eradicate segregation and its vestiges must be based on conditions in the district, the accomplishments to date, and the feasibility of further measures.... Constructing a unitary school system does not require a racial balance in all of the schools-Tcitations omitted]. What is required is that every reasonable effort be made to eradicate segregation and its insidious residue.24 Even then, a case may be transferred to inactive status without dissolving the original order, or the court may substitute a permanent injunction against future discrimination in student or faculty assignments, school construction or placement, and allowing majority to minority transfers. Then the matter may be 23 391 U.S. at 449. 24 Ross v. Houston Independent School District, 699 F.2d 218, 227-28 (5th Cir. 1983). CRS-10 reactivated on the application of any party or on the court's own motion, should it appear that further proceedings arenecessary.25 ANALYSIS While hard and fast rules are few, certain general principles emerge from the cases that have considered when a school district has achieved "unitary" status so as to no longer justify active judicial intervention. While racial balance in every school is not required, the cases state that the "vestiges" of the prior duality must be eliminated to the greatest possible extent. This means, according to one view, that the school district must be "fully integrated" with respect to the six criteria established by green and S3333, i.e., faculty, staff, transportation, extracurricular activities, facilities, and student body composition.26 But the existence of substantially one-race schools, though usually, is not always an obstacle to a finding of unitary status. Where, for example, the student population of the school district is overwhelmingly one race or another, the persistence of some one-race schools has been to1erated.27 For example, the Fifth Circuit approved a finding that the Houston School system had achieved unitary status, notwithstanding the 25 See, Greve, Terminating School Desegregation Lawsuits, 7 Har. J. of Law and Public Policy 303, 305 (1984)?:The fact is that desegregation suits are never terminated. This phenomenon has only recently come to light. It now seems that endless litigation is the dominant pattern. In fact, there has almost never been a desegregation'case which has been conclusively settled, in which jurisdiction has been terminated.") 26 Singleton v. Jackson Municipal Separate School District, 541 F.Supp. 904 (S.D. Miss. 1981); see also, United States v. Lawrence County School District, 799 F.2d 1031 (5th Cir. 1986). 27 E.g., Calhoun v. Cook, 522 F.2d 717 (5th Cir.) reh'g denied 525 F.2d 1203 (5th Cir. 1975); Carr v. Montgomery Board of Education, 377 F.Supp. 1123 (M.D.Ala. 1974), aff'd 511 F.2d 1374 (5th Cir. 1975); Smiley v. Blevins, 514 F.Supp. 1248 (S.D. Tex. 1981). CRS-ll presence of a substantial number of racially imbalanced schools, because of findings that the remedial techniques approved in Swann for enhancing integration were not feasible. Conversely, adequate integration of students may not warrant finding unitary status in the face of persisting patterns of faculty and staff segregation.23 It does appear, however, that the watchword for ascertaining a school system's compliance with desegregation requirements is "effectiveness" and that, at least since green, the measure of any plan's success is whether it produces "actual" desegregation. Indeed, one court has even termed the issue of a school board's "good or bad faith" as "irrelevant" to its compliance status.29 Similarly, in another case the Fifth Circuit refused to confer unitary status to a school system that despite technical compliance with the terms of a court decree had failed to dismantle several one-race schools: With respect to the alleged violation in failing to decrease the number of one-race schools in the system, the parish board makes an argument that need not concern us here: that the current attendance zones were drawn up under court supervision and have been policed diligently and conscientiously by the board. ... How, the parish asks, can it be violating the Constitution in implementing a court-ordered plan of desegregation? We simply note that conscientious adherence to the command of Swann may require more of the board than simply 28 Keyes v. School District No. 1, Denver, Colo., 609 F.Supp. 1491, 1517 (D. Colo. l985)("In this case, it is this court's finding that there has not been an effective faculty assignment plan and, therefore, that omission by itself prevents the declaration that unitariness has been achieved.") 29 Keyes v. School District No. 1, Denver, Colo., 609 F.Supp. 1491, 1516 (D. Colo. 1985). CRS-12 rigorous adherence to the often narrow results of the ponderous litigation machinery.30 9 Thus, the prevailing judicial view appears to be that mere good faith implementation of a school desegregation plan or decree, without some showing, of substantial progress toward "actual desegregation," will not discharge a school system of its constitutional obligations. Concededly, there are references in both Brown II and §£gs2_to the "good faith" required of school officials in the formulation and implementation of desegregation remedies. Whether this could be read to substitute for actual compliance with the terms of a plan, or the tangible results flowing there- from, may be questionable, however. First, in both cases, the reference occurs in a discussion of a school board's obligation with respect to choice of desegregation options in the first instance, not to the determination of whether a plan or its implementation has led to a unitary system. Indeed, in the sentence after the reference to "good faith" in the §£egn_opinion, the Court goes on to state: "Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed."31 On the other hand, Justice Rehnquist's opinion for the Court in Spangler may suggest a theory of "instant unitariness,' so that once a court-approved plan has been adopted and implemented, regardless of duration, the school board has discharged its constitutional obligations, and the need for continuing judicial supervision is at an end. Generally, subsequent lower court decisions 30 Taylor v. Ouachita Parish School Board, 648 F.2d 959, 968 n. 10 (5th Cir. 1981). See also, United States v. Lawrence County School District, 799 F.2d 1031 (5th Cir. 1986). 31 391 U.S., at 439. CRS—l3 have rejected such an interpretation,32 however, and other aspects of Spangler itself argue against this far-reaching result. First, the focus of Spangler was on the validity of the court's decree, as measured against Swann's disavowal of the need for annual adjustments to an otherwise constitutionally adequate plan, not judicial authority to retain jurisdiction to implement a properly conceived plan. Indeed, the Spangler Court refrained from ruling on the board's contention that the 1970 injunction be dissolved and the court's jurisdiction terminated, but remanded the case for further consideration of these issues. Secondly, this broad interpretation would seem at odds with previously announced Supreme Court views respecting retention of jurisdiction by lower courts to insure school board compliance with its constitutional obligations. Finally, the Pasadena school district had been under the 1970 plan for six years, during which there appears to have been substantial compliance with the student assignment portions of the decree. Accordingly, reduction to inactive status, or even termination of jurisdiction in that case, may not have been a radical departure from prevailing judicial policy. The concept of "unitariness, then, has not yet been fully defined by the Supreme Court, and it is perhaps not surprising that that circuit courts of appeals are somewhat divided on its meaning and consequences. For example, there currently is a split in authority between the Fourth and the Tenth Circuits with respect to the burden on plaintiffs who seek changes in the 32 Riddick by Riddick, v. School Board of City of Norfolk, 784 F.2d 521, 533 (4th Cir. 1966)("the mere implementation of a desegregation plan does not convert a dual system into a unitary one"); Vau hns v. Board of Education of Prince George's County, 758 F.2d 983, 989 (4th Cir. 1985)("Where racially neutral attendance patterns have not been completely achieved, Pasadena does not end the district court's remedial powers"); Dowell v. Board of Education of Oklahoma, 795 F.2d 1516, 1520 (10th Cir. 1986)("the purpose of court-ordered school integration is not only to achieve, but also to maintain, a unitary school system"). CRS-14 administration of a school system that has been declared unitary in the sense of being fully integrated. In Riddick by Riddick v. School Board of City of Norfolk,33 the Fourth Circuit ruled that plaintiffs must show that the school board's adoption of a voluntary freedom-of—choice plan was motivated by discriminatory intent after the district was found unitary in 1975 as the result of 15 years of judicially supervised desegregation. Conversely, the Tenth Circuit in Dowell v. Board of Education of Oklahoma,34 rejected the contention that unitary status alone terminates all judicial authority over school district affairs or relieves the board of education of the burden for securing judicial approval of changes in student assignment policies. Because of the potential consequences of a judicial declaration of unitariness, the Fifth Circuit has required a district court to follow certain procedures before declaring a school system unitary: The court must require school boards to submit reports to the court for three years. Before relinquishing jurisdiction, the court must give notice to the plaintiffs that it will hold a hearing to consider whether the school system should be declared unitary; at the hearing, plaintiffs have an opportunity to show cause why continued judicial supervision is necessary and the system should not be declared unitary. Finally, if no cause is shown at the hearing held for this purpose, the case may be dismissed, not merely declared inactive. In conclusion, while the foregoing analysis may not in all respects be apposite to the Department of Education's evaluation of desegregation plans submitted by the Adams states, it does suggest some generally relevant 33 784 F.2d 521 (4th Cir. 1986). 34 795 F.2d 1516 (10th Cir. 1986). 35 United States v. Lawrence County School District, 799 F.2d 1031, 1037- 1038 (5th Cir. 1986). CRS-15 standards. First, it would seem likely that a "good faith" test of compliance with desegregation goals would be no substitute for measurable desegregation progress under prevailing judicial standards. While a school board's good faith has been cited in a few instances, no cases appear to rely on that factor as sufficient pg£_§e_to release a school system from active judicial oversight. There is no apparent reason why the same standard should not apply to administrative oversight of higher educational systems, even though the nature of the goals and the methods for their attainment may be considerably different. As noted, however, that does not mean that all racially "identifiable" institutions within the system must be eliminated; it is sufficient that all practicable means of achieving substantial compliance with desegregation goals are used. In other words, the ultimate determination as to the compliance status of the 10 state systems with the §dams_criteria will probably depend on a state-by-state analysis of results achieved with means used, weighed against the practical likelihood of additional progress with further effort. _ I r » &?;.{.2_____, Charles Dale Legislative Attorney American Law Division May 1, 1987 A LIBRARY” H V4 OF WASH-INGTON UNIVERSITY ST. LOUIS - MO.