Warren On Busing in 1975

COMMENTS
Busing-Supreme Court Restricts Equity Power of District Courts to

Order Interschool Busing
I. INTRODUCTION
Brown v. Board of Education (Brown I)' marked the beginning of
what has become the lengthy task of desegregating the public schools. 2
To implement the constitutional mandate of Brown I, Brown v. Board
of Education (Brown II)t charged the federal district courts with re-
sponsibility for devising and enforcing remedial desegregation de-
crees. 4 In the two decades since Brown I was decided, exercise of the
district court's equity powers in the context of adversary litigation has
been the primary means of enforcing compliance with the 1954 deci-
sion and of developing appropriate desegregation plans. 5 However, in
1. 347 U.S. 483 (1954).

2. See generally, Bickel, The Decade of School Desegregation: Progress and
Prospects, 64 COLUM. L. REV. 193 (1964) [hereinafter cited as Bickel]; Comment, Title
VI of the Civil Rights Act of 1964-Implementation and Impact, 36 GEo. WASH. L. REv.
824, 896 (1968) [hereinafter cited as Title VI]; Note, Schools, Busing and Desegrega-
tion: The Post-Swann Era, 46 N.Y.U.L REV. 1078, 1078-90 (1968) [hereinafter cited as
Post-Swann Era].
3. 349 U.S. 294 (1955). Brown I delayed decision on the question of relief so that
the parties could prepare briefs and present oral argument on the following questions:
4. Assuming it is decided that segregation in public schools violates the Four-
teenth Amendment
(a) would a decree necessarily follow providing that, within the limits set by
normal geographic school districting, Negro children should forthwith be admitted
to schools of their choice, or
(b) may this Court, in the exercise of its equity powers, permit an effective
gradual adjustment to be brought about from existing segregated systems to a system
not based on color distinctions?
5. On the assumption on which questions 4(a) and (b) are based, and as-
suming further that this Court will exercise its equity powers to the end described
in question 4(b).
(a) should this Court formulate detailed decrees in these cases;
(b) if so, what specific issues should the decrees reach;
(c) should this Court appoint a special master to hear evidence with a view
to recommending specific terms for such decrees;
(d) should this Court remand to the courts of first instance with directions
to frame decrees in these cases, and if so what general directions should the decrees
of this Court include and what procedures should the courts of first instance follow
in arriving at the specific terms of more detailed decrees?
Brown 1, 347 U.S. at 495-96 n.13.
4. See Brown I1, 349 U.S. at 299. See also note 31 and text surrounding notes 35-
37 infra.
5. On the assumption on which questions 4(a) and (b) are based, and assum-
425 (1967) [hereinafter cited as Kinoy].
1225
1226 RUTGERS LAW REVIEW [Vol. 28
Milliken v. Bradley,' the United States Supreme Court significantly
limited the scope of the district court's equity powers by restricting the
grant of an interschool district remedy for intradistrict segregation.
Ronald and Richard Bradley, students in a Detroit public school, in-
stituted a class action' in federal district court against the Detroit Board
of Education and officials of the State of Michigan.8 Alleging that de-
fendants' official policies and actions had maintained racial segregation
within the city's school system and that a state statute had unconstitu-
tionally suspended a voluntary plan for school desegregation adopted
by the Detroit Board,9 the complaint demanded implementation of a
desegregation remedy for the city's schools. 10
In a trial on the merits," the district court found that both the De-
The Civil Rights Act of 1964, 42 U.S.C. § 2000c et seq. (1970), added new
enforcement procedures and mechanisms for speeding school desegregation. The act
authorizes the Attorney General to institute federal suits on behalf of those who claim
injury but cannot bear the expense of litigation. Id. § 2000c-6. The Commissioner of
Education is authorized to provide technical assistance in developing and implementing
desegregation plans at the behest of state officials responsible for education. Id. §§ 2000c
to c-4. An additional enforcement mechanism inheres in the power of the Department of
Health, Education and Welfare (HEW) to cut off federal aid to school districts failing to
comply with desegregation standards. Id. § 2000d to d-6. The lack of clear guidelines
and standards for compliance has hindered the effectiveness of government agency
enforcement under the act. See U.S. COMM. ON CIVIL RIGHTS, 3 THE FEDERAL CIVIL
RIGHTS ENFORCEMENT EFFORT-1974, at 355-76 (1975).
6. 418 U.S. 717 (1974).
7. The suit was on behalf of "all school children of the City of Detroit and all
Detroit resident parents who have children of school age." Bradley v. Milliken, 338 F.
Supp. 582, 584 (E.D. Mich. 1971). The Detroit Branch of the National Association for
the Advancement of Colored People (NAACP) joined as party plaintiff. 418 U.S. at
722.
8. The complaint was filed against the Detroit Board, its members, and the then
superintendent of schools; the Governor and Attorney General of the State of Michigan;
the State Board of Education and the State Superintendent of Public Instruction. The
State of Michigan was not named as a defendant, but "state action" was implied in the
complaint's allegation that the challenged acts and policies were carried out by the state
acting through the various named defendants. See Bradley v. Milliken, 484 F.2d 215, 220
(6th Cir. 1973).
9. In April of 1970, the Detroit Board of Education adopted a plan which called
for changes in attendance zones involving about 12,000 of the 289,763 pupils then
enrolled in the city school system. 484 F.2d at 219; see 418 U.S. at 765 (White, J.,
dissenting). In 1970, 63.6 percent of the students in the city's schools were Negro and
34.8 percent were white. Id. The school board's plan, which was to be gradually effected
over a three-year period, was an attempt to correct the de facto segregative effects of
residential patterns. Apparently, implementation of the Board's plan to effect "racial
balance" would have resulted in each city school having approximately 64 percent Negro
enrollment. See id.; 484 F.2d at 219.
Three months after the Board's approval of the plan, the Michigan Legislature enacted
a law which suspended the plan. Law of July 10, 1970, No. 48, § 12, Mich. Pub. Acts
1970. A citizen-initiated recall election removed the school board members who had
supported the plan, and the newly constituted Board rescinded the plan. 484 F.2d at 219.
10. In the early proceedings, plaintiffs argued for implementation of the April 1970
plan. 338 F. Supp. at 584.
11. The trial was on the issue of segregation. In a prior appeal from the district
court's denial of plaintiffs' motion for a preliminary injunction against enforcement of
19751 CASE COMMENTS 1227
troit Board and the state had engaged in unconstitutional practices
which promoted segregation within the Detroit school system. 2 After
considering Detroit-only desegregation plans, the court concluded that
no effective plan could be created within the corporate geographic
limits of the city.' 3 Subsequently, with outlying school districts inter-
the Michigan statute, the court of appeals had held that Law of July 10, 1970, No. 48, §
12, Mich. Pub. Acts 1970, was an unconstitutional interference with rights guaranteed by
the fourteenth amendment. Bradley v. Milliken, 433 F.2d 897, 904 (6th Cir. 1970).
12. 338 F. Supp. at 592. The district court deferred decision on a motion to join
outlying districts as parties defendant on the ground that the motion was premature since
no specific desegregation plan had been presented to the court. Id.
As to its findings of constitutional violations, the district court concluded that the
Detroit Board of Education had committed de jure acts of segregation through such
practices as pupil assignment; transportation of black pupils past white schools with
available space; the creation of optional attendance areas which allowed white students
to transfer to predominantly white schools; and the gerrymandering of attendance zones.
See id. at 592-93.
Regarding attendance zones, the court stated:
There has never been a feeder pattern or zoning change which placed a predom-
inately white residential area into a predominantely black school zone or feeder pat-
tern. Every school which was 90% or more black in 1960, and which is still in
use today, remains 90% or more black.
Id. at 588.
As to the constitutional violations of the State of Michigan, the district court found
that under the Michigan constitution and statutory laws, school districts "are instrumen-
talities of the State and subordinate to [the] State Board of Education and legislature."
484 F.2d at 238. The court therefore imputed all acts of the Detroit Board to the state
for its finding of state de jure segregation. Id.
In addition, the court found the state primarily responsible for the segregative effects
of Detroit's school construction program, since Michigan law required approval of school
building construction plans by the State Board of Education and since in the past the
State Board had had statutory authority to supervise school site selection. Id. at 235-38.
Further, the court found that the state had denied the Detroit district any allocation for
pupil transportation, although such funds were generally available for rural Michigan
schools. Id. at 238. Relying upon judicial construction of Michigan law by the Michigan
courts to the effect that the state has "plenary power" to create and alter school districts,
the federal district court found that the state had "acted to reorganize the school districts
of the City of Detroit." 338 F. Supp. at 589. Finally, the court found that the state had
directly committed an act of de jure segregation by enactment of Law of July 10, 1970,
No. 48, § 12, Mich. Pub. Laws 1970, which suspended implementation of the Detroit
Board's voluntary desegregation plan. 484 F.2d at 239. See note 9 supra. The district
court therefore concluded that "[u]nder the Constitution of the United States and the
constitution and laws of the State of Michigan, the responsibility for providing education-
al opportunity to all children on constitutional terms is ultimately that of the state." 338
F. Supp. at 593.
Portions of the record supporting the district court's findings and conclusions of law
are set forth in Bradley v. Milliken, 484 F.2d 215, 222-41 (6th Cir. 1973).
13. Pursuant to the district court order, the Detroit Board submitted two plans and
the plaintiffs submitted a plan. The district court found that the first of defendant's two
plans was "neither a desegregation nor an integration plan." 484 F.2d at 243. The court
found that the second plan was "a token or part-time desegregation effort." Id. Regarding
plaintiffs' plan, the court issued findings, including the following: (1) that "the racial
composition of the [Detroit] student body is such that the plan's implementation would
clearly make the entire Detroit public school system racially identifiable as Black"; (2)
that the plan would require "the development of transportation on a vast scale . . . and
would require the acquisition of some 900 vehicles . . ."; (3) that there was "little
vening on the issue of the scope of a metropolitan remedy, 1 4 the district
court conducted hearings on a metropolitan plan. The court then is-
sued a ruling and order which established tentative boundaries of a
"desegregation area," including Detroit and 53 of the 85 outlying
school districts, and appointed a panel to develop plans for integration
of the Detroit district with the 5 3 metropolitan districts.' 5
Before a specific plan was proposed, an interlocutory appeal was
taken on the question of the propriety of a metropolitan remedy. The
court of appeals affirmed the district court on this question,' 6 and de-
fendants appealed this decision. The Supreme Court granted certio-
rari to review the district court's interlocutory ruling and order" and
in a five to four decision,18 reversed the lower courts. 19
assurance that [the school system] would not have to undergo another reorganization if
a metropolitan plan is adopted." Id.
14. The district court permitted the outlying school districts to intervene but limited
the scope of intervention to the details of a metropolitan plan. Intervenors were not
permitted to reargue issues which the district court had previously decided. Thus, the
court heard no evidence regarding the establishment of school district boundaries in the
outlying areas and no evidence as to whether the outlying school districts had committed
acts of de jure segregation. See 418 U.S. at 748-49; 484 F.2d at 221.
15. 345 F. Supp. 914 (E.D. Mich. 1972). The plan was to involve clustering of
Detroit and suburban schools in order to "achieve the greatest degree of actual desegre-
gation to the end that, upon implementation, no school, grade or classroom [would be]
substantially disproportionate to the overall pupil racial composition." Id. at 918.
About one month after its appointment, the panel recommended an interim inter-
district plan to go into effect in the 1972-73 school year, and the court ordered the
Detroit Board to purchase buses in preparation for carrying out the plan. The order
called for the purchase of "at least" 295 school buses. 418 U.S. at 734. This was
considerably less than the approximately 900 vehicles which the district court had found
the best of the proposed intracity plans would require. See note 14 supra.
16. 484 F.2d at 250. The court of appeals also held that all school districts to be
affected by the district court decree were "necessary parties" under Rule 19 of the
Federal Rules of Civil Procedure. The court, therefore, vacated in part and remanded to
allow the taking of additional evidence from such outlying districts. However, the court
ruled that no additional evidence could be taken on the issues of segregation and the
Detroit-only plan. As to these issues, the court held that the district court's findings and
conclusions "are not clearly erroneous . . . but to the contrary, are supported by
substantial evidence." Id. at 252.
Regarding the district court's power to order an interdistrict remedy, the court said:
[T]he record establishes . . . that the State controls the instrumentalities whose ac-
tion is necessary to remedy the harmful effects of the State acts. There can be
little doubt that a federal court has both the power and the duty to effect a feasible
desegregation plan. . . . In the instant case the only feasible desegregation plan
involves the crossing of the boundary line between the Detroit School District and
adjacent or nearby school districts . ...
There exists, however, an even more compelling basis for the District Court's
crossing artificial boundary lines to cure the State's constitutional violations. The
instant case calls up haunting memories of the now long overruled and discredited
"separate but equal doctrine" of Plessy v. Ferguson . . . . If we hold that school
district boundaries are absolute barriers to a Detroit school desegregation plan, we
would be opening a way to nullify Brown v. Board of Education which overruled
Plessy . ...
Id. at 249.
17. 414 U.S. 1038 (1973). See note 16 and accompanying text supra.
18. Chief Justice Burger wrote the opinion for the Court. Justice Stewart filed a
1975] CASE COMMENTS 1229
The Court reviewed the record and concluded that there was no evi-
dence of interdistrict constitutional violations or interdistrict segregative
effect and no evidence that district boundaries had been established
"for the purpose of creating, maintaining or perpetuating segregation
of the races."2 Concluding that the relief ordered by the district court
"was based upon an erroneous standard," 21 the Court held that "absent
an interdistrict violation there is no basis for an interdistrict remedy."2 2
The Court also held that, on a finding of a constitutional violation
within only one school district, "there is no constitutional power in the
courts to decree relief balancing the racial composition of the district's
schools with those of the surrounding districts."2 3
This Comment will analyze the logical structure of the Bradley opin-
ion and discuss the immediate and future import of the decision.
II. BACKGROUND
A. Equal EducationalOpportunity-The Right and the Remedy

1. Brown v. Board of Education
More than 20 years after Brown I,24 the full scope of this landmark
decision continues to be unclear.25 However, it was immediately ap-
concurring opinion; Justice Douglas filed a separate dissent; Justice White dissented in an
opinion joined by Justices Douglas, Brennan, and Marshall; and Justice Marshall wrote a
dissenting opinion in which Justices Douglas, Brennan, and White joined. 418 U.S. 717
(1974).
19. Id. at 753.
20. Id. at 745, 748. Justice Stewart, concurring, noted that the district court had
taken no evidence concerning the administration of schools outside Detroit, and, there-
fore, the district court's order of an interdistrict remedy "was . . . simply not responsive
to the factual record . I..."
Id. at 756. But see note 13 supra.
21. 418 U.S. at 752.
22. Id.
23. Id. at 749. Justice Stewart concurred in the result on the ground that the district
court's order was "an abuse of that court's equitable powers" since it had gone beyond
the factual record. Id. at 756. He stated, "In the present posture of the case . . . the
Court does not deal with questions of substantive constitutional law. The basic issue now
before the Court concerns, rather, the appropriate exercise of federal equity jurisdiction."
Id. at 753.
24. 347 U.S. 483 (1954).
25. See Kinoy, supra note 5, at 426-34; Developments in the Law-Equal
Protection, 82 HARV. L. REV. 1065, 1184-87 (1969) [hereinafter cited as Equal Protec-
tion]; Post-Swann Era, supra note 2, at 1078-90.
The ambiguity of Brown arises in part from the brevity of the opinion. One
commentator has noted that in order for the Court to speak with the unanimity which
the nature of the decision required, Chief Justice Warren, writing for the Court, took the
approach that the less said, the less opportunity for disagreement among the justices.
Bickel, The 9riginal Understandingand the Segregation Decision, 69 HARV. L. REV. 1, 2
(1955).
That the rationale of Brown relied upon contemporary social science rather than the
original intendment of the Civil War Amendments has been another cause for debate
regarding the import and effectiveness of the decision. Compare Gregor, The Law, Social
parent at the time of the decision that in granting black children the
right to "equal protection of the laws" the Court had, in effect, declared
unconstitutional laws of 21 states and the District of2 6 Columbia which
either required or permitted segregation in the schools.
27
Cognizant of the magnitude of the remedy implicit in its mandate,
Science, and School Segregation: An Assessment, 14 W. RES. L. REV. 621 (1963) with
Lewis, Parry and Riposte to Gregor's The Law, Social Science, and School Segregation:
An Assessment, 14 W. RES. L. REV. 637. See also Gregor, The Law and Social Science:
A Reply to O.C. Lewis, 15 W. RES. L. REV. 111 (1963); U.S. DEP'T OF HEW, OFFICE
OF EDUCATION, EQUALITY OF EDUCATIONAL OPPORTUNITY (1966) (Coleman Report).
The Brown decision was based, in part, on the important role of public education in
American life. See Brown 1, 347 U.S. at 493. In concluding that "[educational]
opportunity, where the state has undertaken to provide it, is a right which must be made
available to all on equal terms," id., the Court suggested that education is a "fundamen-
tal" constitutional right. This aspect of Brown has recently been limited by the Court in
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), which held
that although education is important, it is not a fundamental right guaranteed by the
constitution.
Any belief that Brown's holding was limited to public education was soon dispelled by
the Court's extension of Brown to other public functions. See, e.g., Johnson v. Virginia,
373 U.S. 61 (1963) (courtroom seating); Turner v. City of Memphis, 369 U.S. 350
(1962) (per curiam) (airport restaurant); New Orleans City Park Improv. Ass'n v.
Deitiege, 358 U.S. 54 (1958) (per curiam) (public parks and golf courses); Gayle v.
Browder, 352 U.S. 903 (1956) (per curiam) (public buses).
The focus of current debate concerning the Brown right is the issue of whether there is
an affirmative duty to integrate regardless of the cause of racial identifiability in schools.
Twenty years ago, in Briggs v. Elliot, 132 F. Supp. 776, 777 (E.D.S.C. 1955), a three-
judge district court said, "The Constitution . . . does not require integration. It merely
forbids discrimination." The tenor of Briggs was recently echoed in Keyes v. School
District No. 1, 413 U.S. 189, 254-65 (1974) (Rehnquist, J., dissenting).
Green v. County School Board, 391 U.S. 430 (1968), mooted the desegregation/inte-
gration distinction-at least where there has been a history of state-imposed de jure
segregation. Cf. notes 58-60 and accompanying text infra. Justice Powell, dissenting in
part in Keyes, cogently argued that the de jure/de facto distinction is no longer justified
on a principled basis. 413 U.S. at 224. He reasoned that Brown has been so transmuted
by Green that the states now have an affirmative duty to operate their school systems on
an integrated basis. His definition, however, of "integration" includes the possibility of
racially identifiable schools, thereby implying that he would not extend Brown-Green to
remedy racial imbalance in school systems as a result of de facto residential segregati6n.
See id. at 219-37.
The key issue in northern school desegregation is whether there is an affirmative duty
under the constitution and Brown to eradicate de facto segregation. See generally Hobson
v. Hansen, 269 F. Supp. 401 (D.D.C. 1967) (Wright, Skelly, J.); Wright, Public School
Desegregation:Legal Remedies for De Facto Segregation, 40 N.Y.U.L. REV, 285 (1965)
[hereinafter cited as Wright]. For discussion of the nature of the Brown right',and its
legal basis see generally Bickel, supra note 2; Carter, The Right to Equal Educational
Opportunity, in THE RIGHTS OF AMERICANS 3 (N. Dorsen ed. 1971) [hereinafter cited as
Carter]; Kinoy, supra note 5, at 426-34; Pollak, Racial Discrimination and Judicial
Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1 (1959); Wechsler,
Toward Neutral Principlesof ConstitutionalLaw, 73 HARV. L. REV. 1 (1959).
26. CIVIL RIGHTS AND THE AMERICAN NEGRO 453 (A. Blaustein & R. Zangrando eds.
1968) [hereinafter cited as CIVIL RIGHTS].
27. "[B]ecause of the wide applicability of this decision, and because of the great
variety of local conditions, the formulation of decrees in these cases presents problems of
considerable complexity." Brown 1, 347 U.S. at 495. The Court propounded a series of
questions and requested the parties to brief and reargue the question of relief. See note 3,
19751 CASE COMMENTS1 1231
the Court in Brown II took a position of accommodation regarding
compliance; rather than decree the immediate relief required by gen-
eral constitutional principles,2" the Court invoked the traditional power
of equity to grant gradual relief. 29 The task of exercising this power
was delegated to the district courts because, the Court reasoned, their
"proximity to local conditions" made them the appropriate forums in
which to develop specific desegregation plans.A0
While authorizing the district courts equity discretion, Brown I gave
few guidelines for its exercise. The Court ruled that the school au-
thorities would have "primary responsibility" for solving the "varied lo-
cal school problems" and devising a plan for desegregation."1 School
authorities, with the burden of proving their "good faith" regarding any
delay, were ordered to make a "prompt and reasonable start toward
full compliance ...... 32 In determining the "good faith" of at-
tempted compliance and the speed with which desegregation should
progress, the district courts were instructed to consider the public inter-
est and problems relating to administration of the remedial plan. a3
The Brown Court was equally vague in its articulation of the stand-
supra. The Court also invited the Attorneys General of the United States and all states
"requiring or permitting segregation in public education to present their views." Brown
11, 349 U.S. at 298-99.
28. See Note, Supreme Court Equity Discretion: The Decrees in the Segregation
Cases, 64 YALE L.J. 124, 125-27 (1954) [hereinafter cited as Equity Discretion].
29. Delayed relief has traditionally been granted for nuisance and antitrust viola-
tions, Equal Protection, supra note 25, at 1138.
In language that has since been quoted repeatedly, the Court said:
In fashioning and effectuating the decrees, the courts will be guided by equitable
principles. Traditionally, equity has been characterized by a practical flexibility in
shaping its remedies and by a facility for adjusting and reconciling public and pri-
vate needs. These cases call for the exercise of these traditional attributes of equity
power ...
Brown I1,349 U.S. at 300. Brown I invoked the "practical flexibility" of equity power in
the interest of delay in ordering compliance. The above language, however, has been
cited as support for the proposition that broad relief may be granted in the interest of
hastening desegregation. See, e.g., Milliken v. Bradley, 418 U.S. 717, 772-73 (1974)
(White, J., dissenting).
30. 349 U.S. at 299. The district court's immediate task was to determine the
"gradualness" with which full compliance might take place. See generally, Carter, The
Warren Court and Desegregation, 67 MICH. L. REV. 237 (1968) [hereinafter cited as
Warren Court]; Lusky, The Stereotype: Hard Core of Racism, 13 BUFFALO L. REV. 450
(1963); Equity Discretion, supra note 28.
31. 349 U.S. at 299.
32. Id. at 300. The Court recognized that "additional time [may be] necessary to
carry out the ruling in an effective manner." Id.
33. Id. The Court specifically mentioned problems of administering desegregation
which could arise from "the physical condition of the school plant, school transportation
system, personnel, revision of school districts and attendance areas into compact units to
achieve a system of determining admission to the public schools on a nonracial basis
." Id. at 300-01.
For a discussion of the elusive standards of "good faith" and "in the public interest,"
see Carter, Equal Educational Opportunity for Negroes-Abstraction or Reality, 1968 U.
ILL. L.F. 160, 177-80.
1232 RUTGERS LAW REVIEW ,[V/ol. 28
ard the district courts were to apply in evaluting compliance. The

Court stated that the lower courts must consider "the adequacy" of the
desegregation plans but offered no guidelines on the question of what
would be adequate compliance.3 4 The Court also implied that the ulti-
mate goal of its mandate was "a transition to a racially nondiscrimina-
tory school system, '31 a goal which could suggest a merely neutral pro-
vision for pupil admittance or something more.
Finally, the Court indicated that no less than full compliance with
its mandate would ultimately be required: constitutional principles
could not be compromised "simply because of disagreement with
them. '36 In concluding with the well-known "all deliberate speed"
formula, Brown II, however, indicated that the Court contemplated dis-
trict court supervision for an undetermined period of delay in order to
implement the mandate of "equal protection of the laws"-a mandate
7
which itself required further definition.
2. State Action and the De Jure/De Facto Dichotomy
In predicating the right to nondiscriminatory education upon the
fourteenth amendment's guarantee of equal protection of the laws,
Brown implicitly required plaintiffs in a school desegregation case to
make a showing of "state action" to establish that this right had been
violated.8" Judicial activity initially focused on the South, where state
action was most obvious because segregation had been mandated or
permitted by state legislation. In the northern states, however, a show-
ing of state action was more difficult.3 9
The Supreme Court has treated state action as an elastic concept.4
34. See 349 U.S. at 301.

35. Id.
36. Id. at 300.
37. Cf. id. at 301.
38. The Civil Rights Cases, 109 U.S. 3 (1883), construed the fourteenth amendment
as a prohibition of state action: "It is state action of a particular character that is
prohibited. Individual invasion of individual rights is not the subject-matter of the
amendment. ... Id. at 11. See also Kinoy, supra note 5; Van Alstyne & Karst, State
Action, 14 STAN. L. REV. 3 (1961); Note, State Action: Theories for Applying
Constitutional Restrictions to Private Activity, 74 COLUM. L. REV. 656 (1974).
39. A distinction was soon drawn between "de jure" segregation, which was imposed
by state law or acts of state officials, and "de facto" segregation which resulted from
personal racial preferences, residential patterns, and other nongovernmental causes. See
Bell v. School City, 213 F. Supp. 819 (N.D. Ind.), alf'd, 324 F.2d 209 (7th Cir. 1963),
cert. denied, 377 U.S. 924 (1964). But see Hobson v. Hansen, 269 F. Supp. 401 (D.C.C.
1967), a!I'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969). It has been
argued, however, that segregation in the North differs from segregation in the South
merely in degree. Carter, supra note 25, at 15-16.
40. See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961); Shelley v.
Kraemer, 334 U.S. 1 (1948); accord, Gomperts v. Chase, 404 U.S. 1237 (1971) (circuit
opinion, Douglas, J.).
For the argument that all residential and educational segregation is rooted in state
Where de facto school segregation has resulted from prior de jure

segregation, the Court has imposed an affirmative duty upon school
boards, as agents of the state, to eradicate the effects of prior state ac-
tion. 4 Even where there was no history of de jure segregation, a
showing of state action could still be made if plaintiffs proved that state
officials acted to promote racially distinct schools. 2 Whether there is
"state action" in the state's failure to act in order to remedy de facto
segregation remains an unsettled question.4 3 Nevertheless, plaintiffs
action see Post-Swann Era, supra note 2, at 1119-20 & n.271. Wright, supra note 25,
argues that compulsory education is itself sufficient to satisfy the state action concept.
41. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Alexan-
der v. Holmes County Bd. of Educ., 396 U.S. 19 (1969); Green v. County School
Bd., 391 U.S. 430 (1968). See also notes 53-57 and accompanying text infra.
42. The concept of agency has been the basis for finding state action in a number of
public school desegregation cases. See, e.g., Green v. County School Bd., 391 U.S. 430,
435 (1968); Cooper v. Aaron, 358 U.S. 1, 16 (1958). The focus in the cases has been
the issue of which activities of the school board can be construed as acts of de jure
segregation.
In Green, the Court noted that school board policies and practices regarding faculty,
staff, student transportation, extracurricular activities and facilities could be indicia of a
de jure segregated school system. 391 U.S. at 435. In Swann v. Charlotte-Mecklenburg
Bd. of Educ., 402 U.S. 1, 18 (1971), the Court added that being able to identify "white"
or "black" schools by reference to the racial composition of students, teachers, and staff
presents a prima facie case of state-imposed segregation. The Court also indicated that
the construction of new schools and the closing of old ones, "two of the most important
functions of local school authorities," could be a predicate for finding state action and de
jure segregation. See id. at 20-21. See also Gomperts v. Chase, 404 U.S. 1237, 1239
(1971) (circuit opinion, Douglas, J.) (suggesting that state action is not limited to
school board acts and state laws but may extend to any public function which has a
segregative effect).
The outer limit of the state action concept in the context of school segregation is,
arguably, segregation in private schools. The issue of what constitutes state action in
privately controlled education has frequently been litigated, especially where such schools
have been supported indirectly by state funding. See, e.g., Griffin v. State Bd. of Educ.,
239 F. Supp. 560 (E.D. Va. 1965). See generally Note, 79 HARv. L. REV. 841 (1966); 11
LOYOLA L. REV. 92 (1961). In Guillory v. Administrators of Tulane Univ., 203 F. Supp.
855, 858-59 (E.D. La. 1962), the court suggested that no institute of learning can be
entirely private, because all perform a public function.
For treatment of the state action concept in areas other than school segregation see
Miller, The Constitutional Law of the "Security State," 10 STAN. L. REv. 620 (1958);
Parker, Evans v. Newton and the Racially Restricted Charitable Trust, 13 How. L.J.
223 (1967); St. Antoine, Color Blindness But Not Myopias: A New Look at State
Action, Equal Protection, and "Private" Racial Discrimination, 59 MicH. L. REV. 993
(1961).
43. The Supreme Court has never directly ruled on this question. In Keyes v. School
District No. 1, 413 U.S. 189 (1973), the Court considered a school desegregation suit
involving the school system of Denver, Colorado. The Denver system had never operated
under statutorily imposed racial segregation, and plaintiffs conceded that they, therefore,
were required to prove not only the existence of segregated schools, but also that this
segregation was intentionally brought about or maintained by state action. Assuming that
de jure segregation is a predicate for finding a constitutional violation, the Court held
that proof of de jure "segregative school board actions in a meaningful portion of a
school system" creates a rebuttable presumption of intentional segregation throughout the
system. Id. at 208. Justice Powell concurred in the result, id. at 217, but dissented on the
ground that the de facto/de jure distinction should be abandoned altogether. See note 25
supra.
have generally been required to show affirmative acts on the part of
state officials. 4 4 Where official action is ambiguous or facially neutral,
proof of discriminatory purpose or motive is usually required. 45
B. The Development of JudicialStandards

1. Affirmative Obligation and the Effectiveness Standard
Brown's judicially authorized delay and lack of specificity with re-
gard to desegregation standards and goals contributed to the slow pace
of desegregation in the decade following the decision. 6 Four years
after Brown, in Cooper v. Aaron,41 the Court made clear that officially
encouraged obstruction and defiance was not a justifiable cause of de-
lay. As open defiance gave way to more subtle forms of evasion,4 8
judicial inquiry necessarily became more complex. Moreover, al-
though Brown 11 had charged the district courts with the duty of con-
sidering the adequacy of any proposed desegregation plan, 49 district
courts employing the "good faith test" were reluctant to disregard a
school board's plan solely because it was inadequate to achieve deseg-
regation.5" As both the Supreme Court5 1 and Congress 52 became im-
44. See, e.g., Deal v. Cincinnati Bd. of Educ., 244 F. Supp. 572 (S.D. Ohio 1965),
aff'd in part, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847 (1967); Bell v.
School City, 213 F, Supp. 819 (N.D. Ind.), af 'd, 324 F.2d 209 (7th Cir. 1963), cert.
denied, 377 U.S. 924 (1964). But see Hobson v. Hansen, 269 F. Supp. 401 (D.D.C.
1967), af 'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969).
45. "We emphasize that the differentiating factor between de jure segregation and
so-called de facto segregation . . . is purpose or intent to segregate. ... Keyes v.
School Dist. No. 1, 413 U.S. 189, 208 (1973).
46. See Bickel, supra note 2; Post-Swann Era, supra note 2, at 1082.
47. 358 U.S. 1 (1958). For an account of the events of "the Little Rock Crisis" see
CIVIL RIGHTS, supra note 26, at 453-58.
48. Among the techniques of avoidance and delay employed by the states and local
school boards were the following: school closings coupled with state financial support of
private, all-white schools; "free transfer" and "freedom-of-choice" plans, which effective-
ly allowed white pupils to choose a "white" school rather than a "black" school; linking
of grade schools with junior and senior high schools of similar racial composition in a
"feeder" pattern; "grade-per-year" plans; and gerrymandering of attendance zones. Bick-
el, supra note 2, at 203-18; Post-Swann Era, supra note 2, at 1083-88.
For discussion of the "freedom-of-choice" and other apparently racially neutral plans
see 1965 Statement of Policies for School Desegregation Plans, in UNITED STATES
COMMISSION ON CIVIL RIGHTS, SURVEY OF SCHOOL DESEGREGATION IN THE SOUTHERN
AND BORDER STATES 1965-66, at 29-61 [hereinafter cited as SURVEY OF SCHOOL DESEGRE-
GATION]; Title VI, supra note 2, at 899-900.
49. See text accompanying notes 31-36 supra.
50. See Note, Integration of Higher Education in the South, 69 COLUM. L. REV. 112,
113 (1969); cf., e.g., Downs v. Board of Educ., 336 F.2d 988 (10th Cir. 1964), cert.
denied, 380 U.S. 914 (1965).
Racially. neutral plans, such as the so-called "freedom-of-choice" plan, were upheld
without inquiry into their effectiveness. See Stell v. Savannah-Chatham County Bd. of
Educ., 318 F.2d 425 (5th Cir. 1963), cert. denied, 376 U.S. 908 (1964).
51. See Bradley v. School Bd., 382 U.S. 103, 105 (1965) ("[d]elays . . . are no
longer tolerable."); Griffin v. County School Bd., 377 U.S. 218, 234 (1964) ("The time
for mere 'deliberate speed' has run out . . ").
52. Congress responded to the slow pace of school desegregation by enactment of
patient with token desegregation, the necessity for a new mandate be-
came evident.
In 1968, in Green v. County School Board,53 the Supreme Court
firmly ordered immediate action toward compliance with the Brown de-
cisions.54 Holding that the "freedom-of-choice" plan of New Kent
County, Virginia, was unconstitutional because it failed effectively to
convert the formerly state-imposed dual system to "a unitary, nonracial
system,"5 5 the Court emphasized that the district courts had a duty to
consider the effectiveness of proposed plans in achieving desegrega-
tion.516 In addition, the Court imposed an affirmative obligation upon
school authorities which had operated under de jure segregation at the
time of Brown "to take whatever steps might be necessary to convert
to a unitary system
57
in which racial discrimination would be eliminated
root and branch.
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (1970). See note 5
supra. See generally Title VI, supra note 2.
53. 391 U.S. 430 (1968).
54. Id. at 438, citing Griffin v. County School Bd., 377 U.S. 218 (1964). The Court
stated: "The burden on a school board today is to come forward with a plan that
promises realistically to work, and promises realistically to work now." 391 U.S. at 439.
55. Id. at 439-41. The Court did not hold freedom-of-choice plans unconstitutional
per se. See id. at 439.
56. The Court described the district court's duty as follows:
It is incumbent upon the district court to weigh [the school board's] claim [that
its proposed plan promises meaningful and immediate progress toward disestablish-
ing state-imposed segregation] in light of the facts at hand and in light of any al-
ternatives which may be shown as feasible and more promising in their effective-
ness. 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 the least it places a heavy burden upon the
board to explain its preference for an apparently less effective method ...
Id.
United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966),
was the first case to use an effectiveness standard. See also Kemp v. Beasley, 389 F.2d
178 (8th Cir. 1968); Bowman v. County School Bd., 382 F.2d 326, 333 (4th Cir. 1967).
Following Green, the courts applied the effectivepiess standard in an effort to acceler-
ate desegregation. E.g., Brewer v. School Bd., 434 F.2d 408 (4th Cir.), cert. denied, 399
U.S. 929 (1970); Youngblood v. Board of Pub. Instruction, 430 F.2d 625 (5th Cir.
1970), cert. denied, 402 U.S. 943 (1971); Clark v. Board of Educ., 426 F.2d 1035 (8th
Cir. 1970), ceit. denied, 402 U.S. 952 (1971). In addition to the Green standard, the
Commission on Civil Rights issued some guidelines for determining the adequacy of
desegregation plans. SURVEY OF SCHOOL DESEGRATION, supra note 48, at 19-22.
One criterion indicating an ineffective plan was the tendency of the plan to perpetuate
rather than eliminate "racially identifiable" schools. See Henry v. Clarksdale Mun.
Separate School Dist., 409 F.2d 682 (5th Cir.), cert. denied, 396 U.S. 940 (1969) (plan
maintaining "racial identity of the schools" prohibited), United States v. Greenwood
Mun. Separate School Dist., 406 F.2d 1086 (5th Cir.), cert. denied, 395 U.S. 907 (1969)
(racially identifiable schools impermissible following a desegregation remedy).
For the historical development of the effectiveness test see Warren Court, supra note
30.
57. 391 U.S. at 437-38. For discussion of the affirmative obligation, see Gozansky,
Gignilliat & Horowitz, School Desegregation in the Fifth Circuit, 5 HOUSTON L. REV.
Three years later, in Swann v. Charlotte-Mecklenburg Board of

Education,58 the Court set forth more detailed guidelines for imple-
menting the Green mandate.5 9 Chief Justice Burger, writing for the
Court, began by addressing the scope of the district court's remedial
powers. Emphasizing that judicial powers may be exercised "only on
the basis of a constitutional violation," he stated that judicial authority
to decree a remedy would arise only when school authorities defaulted
in fulfilling their affirmative duty to desegregate.6 0 Having so defined
the point at which judicial power interposes, the Court then turned to
the task of defining more precisely what would constitute a constitu-
tional violation or school-board default.
First, the Court held that where a school is racially identifiable, "a
prima facie case" of constitutional violation is presented., 1 Second, the
Court suggested that the construction of new schools and the closing
of old ones might be an indicium of a constitutional violation if it were
shown that the effect of the school board's construction policy was to
perpetuate or reestablish a dual school system.6 2 Third, in cautious
946 (1968); Post-Swann Era, supra note 2, at 1091-1106; Title VI, supra note 2, at 906-
09. See also Note, Integration of Higher Education in the South, 69 COLUM. L. REV. 112
(1969); Note, The Affirmative Duty to Integrate in Higher Education, 79 YALE L.J. 666
(1970).
58. 402 U.S." 1 (1971), discussed in Fiss, The Charlotte-Mecklenburg Case-Its
Significance for Northern School Desegregation, 38 U. Cm. L. REV. 1697 (1971).
59. Green's failure to define the concept of "unitary school system," the goal of an
"effective" desegregation plan, was a salient defect hindering development of clear
guidelines for determining when the Green mandate had been satisfied. Several courts
applying the Green standard determined that the tendency to promote a "racially
identifiable" school was indicative of a plan's failure to achieve a unitary system. See
Henry v. Clarksdale Mun. Separate School Dist., 409 F.2d 682 (5th Cir.), cert. denied,
396 U.S. 940 (1969); United States v. Greenwood Mun. Separate School Dist., 406 F.2d
1086 (5th Cir.), cert. denied, 395 U.S. 907 (1969). But Chief Justice Burger has defined
a "unitary system" as "one within which no person is to be effectively excluded from any
school because of race or color." Northcross v. Board of Educ., 397 U.S. 232, 236-37
(1970) (concurring opinion), quoting Alexander v. Holmes County Bd. of Educ., 396
U.S. 19, 20 (1969). Underlying this formulation of the constitutional goal was the
integration/desegregation distinction first articulated in Briggs v. Elliott, 132 F. Supp.
776, 777 (E.D.S.C. 1955). See note 25 supra.
60. 402 U.S. at 16. Chief Justice Burger noted that the process of eliminating state-
enforced segregation had been complicated by demographic shifts and "other changes
• . . [which] sometimes neutraliz[ed] or negat[ed] remedial action before it was fully
implemented." Id. at 14. His concern to treat a violation as analytically distinct from the
mere infringement of a rght appeared motivated by a desire to maintain the de jure/de
facto distinction. Thus he stated:
Once a right and a violation have been shown, the scope of a district court's
equitable powers to remedy past wrongs is broad...
.... The task is to correct, by a balancing of the individual and collective inter-
ests, the condition that offends the Constitution.
Id. at 14-15. According to Chief Justice Burger's analysis, if no violation can be shown
then infringement of a constitutional right must be without a remedy.
61. Id. at 18. Racial composition of teachers and staff, the quality of school
facilities, and the organization of sports activities were the three indicia mentioned.
62. Id. at 21.
language, the Court held that, while it would disapprove of ordering

a particular degree of racial balance as a matter of constitutional right,63
"a very limited use . . . of mathematical ratios . . . (a starting point
in shaping a remedy)" was not beyond the district court's equitable
remedial discretion.64 Fourth, as a holding of the case, the Court
stated that pairing and grouping of noncontiguous school zones was a
"permissible" desegregation tool. 65 And last, Swann affirmed the prin-
ciple of using bus transportation as a desegregation tool provided that
the time and distance of travel were not unduly burdensome for the
children and the educational process.6 6 Although the opinion con-
tained language implying that the Court would not become involved
with de facto segregation produced by shifts in population and residen-
tial segregation, 67 the thrust of Swann's list of permissible desegrega-
tion tools was a reaffirmation of Green's effectiveness standard.
2. School District Boundaries

Since Swann had involved a single school district, the Court had no
occasion to consider what effect school district boundaries would have
on the district court's remedial powers. This issue arose in Wright v.
Council of the City of Emporia.6 8
In Wright, the city of Emporia, Virginia, and the surrounding county
had operated a single school system which the district court found to
be practicing de jure racial segregation. 69 Two weeks after the district
court ordered a plan implemented whereby all children of a particular
63. "The constitutional command to desegregate schools does not mean that every
school in every community must always reflect the racial composition of the school
system as a whole." Id. at 24.
64. Id. at 25. Earlier in the opinion, Chief Justice Burger had suggested that a school
authority might voluntarily prescribe a proportional ratio for each school as a matter of
educational policy in order to prepare students to live in a pluralistic society. But he
stated that "absent a finding of a constitutional violation, . that would not be within
the authority of a federal court." Id. at 16.
Without clarifying the Swann "starting-point" standard, a companion case, McDaniel
v. Barresi, 402 U.S. 38, 41 (1971), held that race should be taken into account in
ordering relief for de jure dual school systems.
For discussion of the use of "color consciousness" as a desegregation tool see
McAuliffe, School Desegregation: The Problem of Compensatory Discrimination, 57 VA.
L. REV. 65 (1971); Note, Demise of the Neighborhood School Plan, 55 CORNELL L.
REV. 594 (1970). See also note 69 and accompanying text infra.
65. 402 U.S. at 28.
66. Id. at 30-31.
67. E.g., id. at 28.
68. 407 U.S. 451 (1972).
69. In 1965, when the lawsuit was first instituted, Emporia's elementary and high
schools served all white children in the county, while black children were assigned to
schools which, with the exception of one elementary school, were located outside
Emporia. Under a court-approved freedom-of-choice plan, in effect from 1966 to 1969,
no white children ever enrolled in the county's black schools and in the 1968-69 school
year, only 98 of the county's 2,510 black students attended white schools. Id. at 455.
grade were assigned to the same school in order to eliminate racial dis-
crimination in pupil assignment, Emporia sought to withdraw from the
school system and to establish itself as a separate school system. The
city justified its action by appeal to its authority under state law to
operate an independent school district 70 and by its lack of discrimina-
tory motivation in withdrawing from the county school system. 71
Nevertheless, the district court enjoined the separation and the Su-
preme Court affirmed the district court's injunction.
Although it was undisputed that the city would have operated a uni-
tary school system, 72 the Court reasoned that the city and county had
together operated a de jure segregated system and "were properly
treated as one unit for the purpose of dismantling that system. '7 3
Therefore, no finding of an independent constitutional violation was re-
quired to enjoin Emporia's action.74 Moreover, although the disparity
in racial composition between the Emporia splinter system and the
county would not be great, 75 the Court accepted the district court's con-
clusion that the projected effect of Emporia's withdrawal would be a
"substantial increase in the proportion of whites in the schools attended
76
by city residents, and a concomitant decrease in the county schools.
Regarding the purpose of Emporia's action as a predicate for finding
a constitutional violation, the Court stated: "[W]e have focused upon
70. Under Virginia law, a city such as Emporia was a politically independent entity
and entitled to provide free public schools for children living within its borders. Emporia
argued that, given its separate political jurisdiction, its withdrawal could be enjoined only
upon a finding that either the state law under which it acted was invalid, or the city
boundaries were gerrymandered to exclude black children, or the disparity in racial
balance between city and county schools violated the Constitution. The district court
made no findings regarding any of these contentions. Id. at 459.
71. Emporia had been dissatisfied with the county's level of school funding and its
own lack of control over school administration. See id. at 454, 480. If permitted to
separate, Emporia proposed to operate unitary schools, with all children enrolled in a
particular grade attending the same school. Id. at 457-58.
72. Id. at 457-58. See note 71 supra.
73. 407 U.S. at 460.
74. Id. at 459.
75. The record showed that the county-city system had a racial composition of 34
percent white and 66 percent black children. With Emporia operating a separate system,
the city's schools would have had a 48 percent white and .52 percent black racial
composition; and the county's schools would have been 28 percent white and 72 percent
black. Id. at 464. Chief Justice Burger, dissenting, interpreted the "six-percent increase"
of black children in county schools, shown by these statistics, as effective a difference
of only "one or two children per class .... ." Id. at 473.
76. Id. at 463. The Court expressly disclaimed racial balancing as the sole basis of
its holding. Id. at 464. The Court stressed that it was the presence of three additional
factors in the findings of the district court which were dispositive: (1) that whites in
county schools might withdraw from the public system and register in private schools or
return to city schools from private schools in which they were previously enrolled; (2)
Emporia's schools were superior in quality and physical equipment to the county schools;
(3) the timing of Emporia's action would have "the same adverse psychological effect
[generating feelings of inferiority]" condemned in Brown 1. Id. at 464-66.
the effect-not the purpose or motivation-of a school board's action

in determining whether it is a permissible method of dismantling a dual
system. The existence of a permissible purpose cannot sustain an ac-
tion that has an impermissible effect. '7 7 Accordingly, the Court held
that "a new school district may not be created where its effect would
be to impede the process of dismantling a dual system. 7 8
Wright signaled the first major split of the Court in school desegre-
gation cases. 79 Nevertheless, in reaffirming Green's effectiveness
standard in the context of splinter-district suits, 0 Wright suggested that
political boundaries are not sacrosanct where their effect is to hinder
77. Id. at 462.

78. Id. at 470. The Court indicated that, once the effects of de jure segregation had
been eliminated, Emporia would be permitted to establish an independent system. The
Court, however, did not expand upon the showing that would be required to prove a
completely "unitary system." Presumably, the operation of unitary schools would have to
effect a change in residential patterns before Emporia could withdraw "without ... an
adverse effect upon the students remaining in the county ...." See id.
79. Justice Stewart wrote the opinion of the Court, in which Justices White,
Douglas, Brennan, and Marshall joined. Chief Justice Burger wrote the dissenting
opinion and was joined by Justices Blackmun, Powell, and Rehnquist. This division is
discussed in Note, Constitutional Law, The Supreme Court, 1971 Term, 86 HARV. L.
REv. 62, 62-64, 67 n.29 (1972).
Chief Justice Burger took a narrower view both of the district court's equitable
remedial discretion and of what was constitutionally required to eradicate state-imposed
segregation. Relying on the undisputed fact that "education would be conducted on a
completely desegregated basis within the separate systems," he appeared willing to allow
the creation of separate districts which might be predominately uniracial so long as each
district was operated as a non-discriminating unit. He also rejected "racial balance" as a
goal of desegregation, stating that "the elimination of discriminatory systems . . . is all
the Constitution commands." 407 U.S. at 477. See also Briggs v. Elliott, 132 F. Supp.
776, 777 (E.D.S.C. 1955); note 25 supra.
Regarding the district court's equity discretion, Chief Justice Burger argued that the
district court must 'accept a plan of school authorities that "will effectively eliminate
segregation in the schools . . . unless there are strong reasons why a different plan is to
be preferred." Id. at 477. As a second limitation, he pointed to the fact that Emporia and
the county were "totally separate political entities." The rights and powers of such
political entities, he asserted, cannot be nullified by district courts seeking to dismantle a
dual system in a particular way. Id. at 478. He thus appeared to take a decisive retreat
from the "to take whatever steps might be necessary" language of Green's affirmative
duty to eliminate de jure segregation "root and branch." See notes 53-57 and accompany-
ing text supra.
The Wright dissenters concurred, however, in United States v. Scotland Neck City
Board, 407 U.S. 484 (1972), a companion case invalidating the formation of a splinter
district which would have left the remaining district's schools 89 percent black. Scotland
Neck makes clear that the Court will not permit new school districts to be created from a
joint system when the effect is so palpably to allow resegregation.
80. The Emporia majority opinion endorsed the approach taken by lower federal
courts in the following splinter-district suits, where separate districts were disallowed.
Lee v. Macon County Bd. of Educ., 448 F.2d 746 (5th Cir. 1971); Stout v. Jefferson
County Bd. of Educ., 448 F.2d 403 (5th Cir.), cert. denied, 411 U.S. 930 (1973); Haney
v. County Bd. of Educ., 410 F.2d 920 (8th Cir. 1969); Aytch v. Mitchell, 320 F. Supp.
1372 (E.D. Ark. 1971); Burleson v. County Bd. of Election Comm'rs, 308 F. Supp. 352
(E.D. Ark.), af 'd per curiam, 432 F.2d 1356 (8th Cir.. 1970).
desegregation.8 1 Moreover, together with Swann's approval of the
pairing of noncontiguous school zones and bus transportation as per-
missible desegregation tools, 2 as well as Swann's emphasis on elimi-
nating "racially identifiable" schools," Wright was, arguably, authority
for ordering consolidation of separate school districts to remedy urban
segregation. 4 In contexts other than school desegregation, the Court
had made clear that intrastate p6litical boundaries are not immune from
federal scrutiny when constitutional rights are involved.85 However,
district courts were split on the issue of whether consolidation of sepa-
rate school districts could be ordered as part of a remedial plan.
Consolidation had been ordered where school boundaries were the
8 But where no
result of racially discriminatory gerrymandering.
81. In Keyes v. School District No. 1, 413 U.S. 189 (1973), the Court, in dictum,
indicated that boundaries might be respected even though they "have the effect of
dividing the [school] district into separate, identifiable and unrelated units." Id. at 203.
The boundaries expressly mentioned by the Court were "geographical . . . or ...
natural boundaries." Id. There was no indication in the opinion that political boundaries
would be an insurmountable obstacle in granting remedial relief. Rather, the decisive
factor for the Court was whether the acting units were so interrelated that it would be
reasonable to infer a unity of interest and segregative intent.
82. See text accompanying notes 65, 66 supra. Swann approved a district court
decree providing for one-way trips averaging seven miles and taking no more than 35
minutes. 402 U.S. at 30.
83. Cf. text accompanying notes 61-64 supra.
84. The importance of a metropolitan consolidation approach for urban segregation
is discussed in Post-Swann Era, supra note 2, at 1117 n.259.
Consolidation of districts in New Jersey was ordered under the mandate of the state
constitution and accompanying enabling legislation. Jenkins v. Township of Morris
School Dist., 58 N.J. 483, 279 A.2d 619 (1971). The New Jersey Supreme Court held
that the school commissioner must have the power to cross district lines in formulating
desegregation plans pursuant to an affirmative obligation to desegregate arising from the
state constitution. Id. at 506, 279 A.2d at 631-32. The case may be limited in application,
however, since in Jenkins the two districts had previously operated a combined high
school and the court specifically found that the two districts formed a single community
without visible or factually significant internal boundary separation. Id. at 486-87, 279
A.2d at 620-21. The state-wide implications of the decision are discussed in 3 SETON
HALL L. REv. 259 (1971). For an analysis of the lower court decision and the legal
background of the case see Note, Racial Imbalance and Municipal Boundaries-Educa-
tional Crisis in Morristown, 24 RUTGERS L. REV. 354 (1970). For a discussion of earlier
cross-boundary remedies in the state see 1 RACE REL. L. REP. 255 (1956).
85. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) (voting districts); Gomillion v.
Lightfoot, 364 U.S. 339 (1960) (gerrymandered city limits).
In Reynolds the Court noted that counties and municipalities have never been
considered sovereign entities but are, instead, instrumentalities of the state. 377 U.S. at
575. And in Gomillion, the Court declared that although municipalities are creatures of
the state, their control by the legislature is subject to constitutional review. 364 U.S. at
344-45.
For a discussion comparing voting rights and the right to equal educational opportuni-
ty see 6 IND. L. REV. 147, 164-67 (1972). For judicial treatment of intrastate boundaries
see 13 U.C.L.A. L. REV. 1345 (1966).
86. United States v. Board of School Comm'rs, 474 F.2d 81 (7th Cir.), cert. denied,
413 U.S. 920 (1973); United States v. Missouri, 363 F. Supp. 739 (E.D. Mo. 1973);
United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970), alf'd, 447 F.2d 441 (5th
Cir. 1971), cert. denied sub nom. Edgar v. United States, 404 U.S. 1016 (1972); cf.
showing of de jure segregation had been made, the courts refused to
order redistricting as a remedy for racial imbalance produced by popu-
lation shifts after a dual system had been eliminated. 7 In Bradley v.
School Board,8" a Virginia federal district court ordered three counties
to consolidate as a single metropolitan system after plans offered by
school authorities had proved ineffective. 9 But this decision was re-
versed by the Fourth Circuit, which held tat once state-imposed seg-
regation has been removed within a district, "further intervention by
the district court [is] neither necessary nor justifiable." 0 This re-
versal was subsequently affirmed, without opinion, by an equally di-
vided Supreme Court." Thus, in summarily affirming the court of ap-
peals, the Supreme Court had provided no conclusive answer to the
pressing problem of remedial relief for urban segregation: whether a
district court may order metropolitan consolidation and, if so, under
what circumstances.
III. ANALYSIS: THE SYLLOGISM
The basic premise of the Bradley opinion is the proposition, ex-
Hoots v. Commonwealth, 359 F. Supp. 807 (W.D. Pa. 1973); Clark v. Bd. of Educ., 350
F. Supp. 149 (E.D. Ky. 1972).
In Wanner v. County School Board, 357 F.2d 452 (4th Cir. 1966), the court approved
the drawing of district lines on the basis of race consciousness where the purpose was
remedial. See note 64 supra.
87. Deal v. Cincinnati Rd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert. denied, 389
U.S. 847 (1967); Bell v. School Rd. of Gary, 324 F.2d 209 (7th Cir. 1963), cert. denied,
377 U.S. 924 (1964); Calhoun v. Cook, 332 F. Supp. 804 (N.D. Ga.), modified, 451
F.2d 583 (5th Cir. 1971).
Bell v. School Board, supra, enunciated the proposition that absent de jure segregation,
a cross-district plan cannot be judicially ordered solely to make the schools more racially
balanced.
88. 338 F. Supp. 67 (E.D. Va.), rev'd, 462 F.2d 1058 (4th Cir. 1972), aff'd mem.
by an equally divided court, 412 U.S. 92 (1973).
89. The court reasoned that political boundaries served no legitimate state or local
interest and perpetuated existing residential segregation which had been fostered by
earlier school-board policies and actions. It therefore concluded that it had a duty to take
"whatever steps [were] necessary" including redistricting, to eliminate "racially identifia-
ble schools." 338 F. Supp. at 79-80. The court relied upon Davis v. Board of School
Commissioners, 402 U.S. 33,137 (1971), a companion case to Swann. 338 F. Supp. at
83.
Consolidation of suburban schools was ordered in Kelly v. Metropolitan County Board
of Education, 463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001 (1972), as the only
effective means of eliminating the racial identifiability of the schools. The court ruled
that earlier findings of good faith were insufficient when, in fact, following the plan,
white students were able to move, with the result that the schools remained segregated.
See also Harrington v. Colquitt County Rd. of Educ., 460 F.2d 193 (5th Cir.), cert.
denied, 409 U.S. 915 (1972).
For discussion of the problem of "white flight" see Post-Swann Era, supra note 2, at
1100-02. For discussion of the problem of white withdrawal to segregated private schools
in the South see Segregation Academies and State Action, 82 YALE L.J. 1436 (1973).
90. 462 F.2d at 1069. Despite its sympathy for creating racial balance, the Fourth
Circuit felt that racial quotas could not be mandated. Id. at 1063-64.
91. 412 U.S. 92 (1973). The votes of the individual justices were not recorded,
except to say that Justice Powell did not participate.
1242 RUTGERS LAW REVIEW .[Vol. 28
tracted by the Court from Swann, that "the scope of the remedy is
determined by the nature and extent of the violation."9 2 Once Chief
Justice Burger, speaking for the Court, had defined the terms of the
proposition and had reviewed the record to determine that there were
"de lure segregated conditions only in the Detroit [school system],"93
the conclusion that "the remedy must be limited to that system"9 4
inevitably followed.
A. The Major Premise: ControllingPrinciplesof Law-the Right,

the Violation, and the Remedy
Chief Justice Burger's treatment of the constitutional violations in
the case is best understood by first considering his definition of the
Brown right, the precondition of the violation. Reviewing the history
of school desegregation law, he began with the "standard" of Brown
I that "[s]eparate educational facilities are inherently unequal."95 He
immediately made clear, however, that he construed this standard as
a narrow "rule of law" which required only the elimination of "state-
mandated or deliberately maintained dual school systems." 96 Critical
of the lower courts for what he viewed as their attempt to effect pro-
portional racial balance throughout the metropolitan area, 9 7 he stressed
92. 418 U.S. at 744, citing 402 U.S. at 16.

93. 418 U.S. at 745.
94. Id. at 746.
95. Id. at 737.
96. Id. For debate concerning the rival jurisprudential theories of law as a set of
"rules" and law as principle see Dworkin, The Model of Rules, 35 U. CHI. L. REV. 14
(1967); Dworkin, Social Rules and Legal Theory, 81 YALE L.J. 855 (1972); Wright,
Professor Bickel, The Scholarly Tradition, and the Supreme Court, 84 :HARv. L. REV.
769, 778-79 (1971). Contra, Raz, Legal Principles and the Limits of Law, 81 YALE L.J.
823 (1972). See also B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921);
Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
Justice Marshall, dissenting, viewed the meaning of Brown differently. For him Brown
was the beginning of a process of undoing decades of public school segregation. See 418
U.S. at 781-82 (dissenting opinion). See also note 25 supra.
97. Justice Burger interpreted the district court's rejection of the Detroit-only plans
as based on a misconception of what constitutes "actual desegregation." See 418 U.S. at
739-41. In a footnote, he suggested that the district court had mistakenly equated "racial
imbalance with a constitutional violation calling for a remedy." Id. at 741 n.19.
The dissenters demonstrated that this was an inaccurate characterization of the district
court's analysis. Tracing the procedural history of the case, they showed that the lower
court had in considering racial balance followed established precedent (1) only when the
court had first found de jure violations; (2) only after the school board had defaulted in
its affirmative duty to devise an effective plan; and (3) only as part of its duty "to
achieve the greatest possible degree of actual desegregation." See id. at 765-69, 774-75,
citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971). Considera-
tions of racial composition, Justice Marshall pointed out, came only in the district court's
rejection of the Detroit-only plans because they "would accentuate the racial identifiabili-
ty of the district as a Black school system, and would not accomplish desegregation." 418
U.S. at 787 (dissenting opinion). Moreover, he noted that use of racial ratios as a
that there is no substantive constitutional right to "any particular racial

balance in each 'school, grade or classroom.' "98 Moreover, in what
appeared to be a balancing of the state's interest in preserving school
district boundaries as a means of assuring local control over school
operations against the values inhering in the constitutional right to at-
tend a "unitary" school system,"9 he concluded that, absent a constitu-
tional violation calling for interdistrict relief, "[t]he constitutional right
of the Negro respondents residing in Detroit is to attend a unitary
school system in that district."'10 0 Thus he imported a limitation of polit-
ical boundaries into the concept of the Brown right, which, notwith-
standing his assertion that "prior holdings had been confined to viola-
tions and remedies within a single school district,"'' had never been
explicitly required. 02
Concerning "the nature of the violation" which would call for inter-
district relief, Chief Justice Burger stated that a showing of "a constitu-
tional violation within one district that produces a significant segrega-
tive effect in another district" would be required. 0 3 He gave as ex-
amples of such a violation, first, racial discrimination in one district
"starting point in the process of shaping a remedy" had been expressly approved in
Swann. Id. at 788 n.1. See notes 63, 64 and accompanying text supra.
Justice White's dissent stressed that an interdistrict remedy was within the district
court's equity powers "if . . .necessary or more effective to accomplish [a] constitution-
ally mandated task." 418 U.S. at 772. He relied on precedent for the proposition that
"[a] district court may and should consider the use of all available techniques including
restructuring of attendance zones and both contiguous and noncontiguous attendance
zones." Id. at 775, citing Davis v. Board of School Comm'rs, 402 U.S. 33, 37 (1971).
Moreover, he cited Swann as approving the goal of "the greatest possible degrees of
actual desegregation." 418 U.S. at 775. In addition, he noted that Swann had approved
judicial concern "with the elimination of one-race schools." Id.
98. 418 U.S. at 740-41.
99. Justice Burger stated:
No single tradition in public education is more deeply rooted than local control
over the operation of schools; local autonomy has long been thought essential both
to the maintenance of community concern and support for public schools and to
the quality of the educational process.
Id. at 741-42. Noting that the problems of operating the schools under a metropolitan
plan had not yet been addressed by the district court, he nevertheless viewed the
inevitable consequence of a metropolitan remedy as a major interference with an
alteration of the Michigan public school system. See id. at 742-44. See also text
accompanying notes 128-31 infra.
100. 418 U.S. at 746 (emphasis added).
101. Id. at 744. He rcasoned that since Brown and its progeny had "each addressed
the issue of constitutional wrong in terms of an established geographic and administrative
school system," it therefore followed that the legal terms of art, such as "unitary" and
"racially identifiable schools," must be defined within that context. Id. at 746.
102. One of the questions which the Brown I Court directed to be considdred on
rearguments assumed that a decree would be "within the limits set by normal geographic
school districting ...." 347 U.S. at 495-96 n.13; see note 3 supra. Brown 11, however,
expiessly stated that the district courts could consider "revision of school districts and
attendance areas" in order to effect "admission to the public schools on a nonracial basis
*" 418 U.S. at 773 (White, J., dissenting), citing 349 U.S. at 300-01.
103. 418 U.S. at 475.
which is "a substantial cause" of segregation "in an adjacent 04district"

and, second, racially motivated gerrymandering of district lines.1
Without discussion of the traditional "state action" concept, 10 5 he
reasoned that even if the state is responsible for constitutional violations
within a school district, "it does not follow that an interdistrict remedy
is constitutionally justified or required." 10 6 He then implied that the
only instance where "state action" would be sufficient to give an inter-
district remedy broader than the particular district violation would be
where the state had drawn the district boundaries "for the purpose of
10 7 It
creating, maintaining or perpetuating segregation of the races."'
must be noted that Michigan had no history of legislative segrega-
tion. 08 There was no occasion, therefore, to consider whether de jure
segregation by legislative enactment in the past would be a sufficient
predicate for interdistrict relief in order to dismantle and eradicate the
effects of a formerly state-created dual system.
Justice Burger cited Brown II as "further refin[ed]" by Swann, as
the controlling law of the remedial process. 10 9 From Swann, he ex-
tracted the principles that federal remedial power may be interposed
only if there is a constitutional violation and that, when so interposed,
it is limited by the "nature of the violation." 10 By omitting Green in
104. Id.
105. See text accompanying notes 38-45 supra.
Justice Douglas said:
[T]here is so far as the school cases go no constitutional difference between de
facto and de jure segregation. Each school board performs state action for Four-
teenth Amendment purposes when it draws the line that confine it to a given area,
when it builds schools at particular sites, or when it allocates students. The crea-
tion of the school districts in Metropolitan Detroit either maintained existing segre-
gation or caused additional segregation....
418 U.S. at 761 (dissenting opinion). See also text accompanying note 121 infra.
106. 418 U.S. at 748.
107. Id. Given Justice Burger's view of "state action" as equivalent to "affirmative
action by the state's agent," in situations where particular districts are involved in
segregation and cross-district segregative effect is shown, the remedy would be limited to
the districts involved. According to Justice Burger's reasoning, only where district
boundaries are directly gerrymandered by state law would the state, rather than the
districts, be primarily responsible for the constitutional violation.
Justice Stewart, concurring, indicated two other instances where there would be state
responsibility: where state officials transfer school units between districts and where
there is "purposeful racially discriminatory use of state housing or zoning laws." Id. at
755.
108. Justice Burger noted that for more than a century the Michigan constitution and
laws had required unitary school systems. Id. at 749 & n.23. He also noted that the
Detroit school district boundaries were established "over a century ago by neutral
legislation" when the city was first incorporated. Id. at 748.
109. Id. at 737-38.
110. [T]he task is to correct, by a balancing of the individual and collective inter-
ests, "the condition that offends the Constitution." A federal remedial power may
be exercised "only on the basis of a constitutional violation," and, "[a]s with any
equity case, the nature of the violation determines the scope of the remedy."
Id. at 738, citing 402 U.S. at 16.
his discussion of these principles, he avoided reference to Green's affirm-

ative obligation and effectiveness standard."' However, given his ap-
proach to "the right," "the violation," and the remedial process, Chief
Justice Burger's definition of "the remedy" for this particular case was
necessarily determined.
The appropriate remedy for a constitutional violation circumscribed
by neutrally drawn political boundaries was, Justice Burger stated, one
designed "to restore the victims of discriminatory conduct to the posi-
tion they would have occupied in the absence of such conduct." ' 1 2 He
flatly rejected the approach of the dissenters that cross-district relief
"represents merely the devising of a suitably flexible remedy" for well-
established constitutional rights. Such an approach, he asserted, was
a "drastic expansion of the constitutional right itself . . .without any
support in either constitutional principle or precedent." 1 3 Moreover,
he also rejected the notion that "actual desegregation" means the elimi-
nation of raciallyidentifiable schools regardless of their cause.' 4
B. The Minor Premise: The Detroit Violation

Reviewing the record on a "clearly erroneous" standard, Chief Jus-
tice Burger accepted as correct the fact findings of the district court
as to de jure segregation by the Detroit defendants' 5 and did not dis-
pute the fact findings of the lower court regarding acts of de jure segre-
111. See notes 53-57 and accompanying text supra.

This omission is arguably explained by the fact that Green addressed the segregative
effects of a formerly de jure school system while Bradley, on the Court's reasoning, was
a Northern de facto segregation problem presenting a single-district de jure violation. See
text accompanying notes 120-35 infra. On the other hand, it may be argued that this
distinction is made possible by Chief Justice Burger's narrow definition of "state action."
See note 107 and accompanying text supra.
112. 418 U.S. at 746. But cf. id. at 779-80 (White, J., dissenting):
Surely the Court's remedy will not restore to the Negro community, stigmatized as
it was by the dual school system, what it would have enjoyed over all or most of
this period if the remedy is confined to present-day Detroit; for the maximum rem-
edy available within that area will leave many of the schools almost totally black,
and the system itself will be predominantly black and will become increasingly
so. . . . []t is unrealistic to suppose that the children who were victims of the
State's unconstitutional conduct could now be provided the benefits of which they
were wrongfully deprived. . . . The education of children of different races in a
desegregated environment has unhappily been lost, along with the social, economic,
and political advantages which accompany a desegregated school system . . . . It
is for these reasons that the Court has consistently followed the course of requiring
the effects of past official segregation to be eliminated "root and branch" by impos-
ing, in the present, the duty to provide a remedy which will achieve "the greatest
possible degree of actual desegregation, taking into account the practicalities of the
situation."
113. Id. at 747.
114. Id. at n.22. Citing Green, Wright, and United States v. Scotland Neck, 407 U.S.
484 (1972), he said that "[iln none of these cases was it even intimated that 'actual
desegregation' could not be accomplished so long as the number of Negro students was
greater than the number of white students."
115. See id. at 738 n.18, 745.
1246 RUTGERS LAW REVIEW i[Vol. 28
gation by the state in Detroit. Rather, the crux of his disagreement

with the lower courts concerned the validity of an interdistrict remedy
for segregation found to exist only within a single district.
Noting that the lawsuit was initiated by allegations of segregation
within Detroit and that plaintiffs had sought a remedy for the Detroit
schools, he stressed that no evidence had been taken regarding viola-
tions by the outlying districts aid, with one exception, no evidence was
taken of interdistrict violations or effects. 116 Given this procedural
history, he concluded that the district and appellate courts erred in con-
sidering a metropolitan plan which went beyond the pleadings and the
original theory of the case. 11 7 As for the one exception, a finding of
interdistrict violation and segregative effect resulting from a predomi-
nantly black suburban district having contracted to send its high school
students to a predominantly black school in Detroit, he accepted argu-
endo the lower courts' conclusion that the black students were bussed
past white schools to a more distant black school because white subur-
ban districts refused to accept the students.1 8 Applying a "substan-
tiality" test,' 19 however, he reasoned that "this isolated instance affect-
ing two . . . school districts" would not justify a metropolitan remedy
120
involving other outlying districts.
Concerning the findings and conclusions of law as to state de jure
violations, the thrust of Chief Justice Burger's approach was that "as-
suming arguendo" there was "state action," nevertheless, it was limited
to Detroit. First, he disapproved 12' of the court of appeal's conclusion
that the state's authority over school construction "fostered segregation
through the Detroit Metropolitan area."' 22 Since the district court had
taken evidence as to the effects of the state's school construction poli-
cies on districts outside Detroit, he refused to draw inferences that state
activities within Detroit had affected the racial composition of schools
116. Id. at 738, 745. See also notes 9, 10 and accompanying text supra.
117. 418 US. at 745.
118. Compare id. at 749-50 with 484 F.2d at 231-32. He found no support in the
record, however, for the court of appeals' inference that the arrangement had depended
on the "tacit or express" permission of the state board of education. 418 U.S. at 750. For
the basis of the court of appeals' inference see 484 F.2d at 238-39.
119. In setting forth the required showing for an interdistrict remedy in the context
of his discussion of district boundaries, Chief Justice Burger seemed to imply that the
degree of interdistrict effect would be a factor in deciding whether to grant cross-district
relief. He stated, "[I]tmust first be shown that . . . a constitutional violation within one
district .. .produces a significant segregative effect in another district. Specifically, it
must be shown that racially discriminatory acts of the state or local school districts ...
have been a substantial cause of interdistrict segregation." 418 U.S. at 744-45 (emphasis
added). He gave no indication, however, of where the line should be drawn between
"isolated instances" and "substantial" interdistrict involvement.
120. Id. at 750.
121. Id. at 751.
122. 484 F.2d at 241.
in the outlying districts or that state activities in outlying districts had

affected Detroit schools.' Thus, despite the district court's evidence
of state involvement in school site selection and construction, 12 4 he re-
versed the lower court's conclusions regarding the effect of such prac-
tices.
Chief Justice Burger also refused to draw any inferences of state re-
sponsibility for the racial character of schools in the metropolitan area,
despite the fact, proved at trial, that state financial aid permitted larger
per-pupil expenditures with less tax effort in suburban districts,' 25 a
fact which the district court found "perpetuated systematic educational
inequalities."' 2 6 As for the state legislation which rescinded Detroit's
voluntary desegregation plan, he concluded that this "state action," like
other instances in the record, affected only Detroit schools and "had
no casual connection with the distribution of pupils by race between
1 27
Detroit and [outlying] districts."'
Most crucial to his conclusion that state action was limited to Detroit
was his approach to Michigan's educational structure, an approach
which differed considerably from that taken by the lower courts. The
lower courts had noted that Michigan has "plenary authority" over the
school districts throughout the state and that school boards are "instru-
mentalities" of the state. 2 ' Chief Justice Burger, on the other hand,
concluded that Michigan provided "a large measure of local con-
trol." 29 While not disputing the general authority of Michigan over
123. 418 U.S. at 751.

124. 484 F.2d at 235-39, 241. Chief Justice Burger did not discuss the district court's
findings that the state, through its agent, the Detroit school board, purposefully used
such techniques as optional attendance zones, gerrymandering of attendance zones, and
feeder school patterns, techniques which preserved the racial identity of the schools. See
id. at 221, 222. Apparently, he subsumed these findings in his statement that "[tlhe
record before us .. . contains evidence of de lure segregated conditions only in the
Detroit schools ...." 418 U.S. at 745.
125. 418 U.S. at 751. He stated that application of San Antonio Independent School
District v. Rodriguez, 411 U.S. 1 (1973), to Michigan's school finance system was
"questionable."
Rodriguez upheld the constitutionality of the Texas system of funding public schools
by property taxation. Plaintiffs in Rodriguez had argued that the state's school finance
system promoted substantial interdistrict disparities in per pupil expenditures because of
the disparity in value of assessable property among the districts. Chief Justice Burger, in
Bradley, declined to consider whether Michigan's school finance system was in any way
distinguishable from that upheld in Rodriguez, because the lower courts had not directly
addressed this question.
Chief Justice Burger made no mention of evidence taken at trial that a state statutory
scheme directly discriminated against Detroit schools by not providing funds for pupil
transportation in Detroit while such funds were available to the outlying districts. See
484 F.2d at 240-41.
126. 484 F.2d at 239.
127. 418 U.S. at 750.
128. 484 F.2d at 238-39; see note 13 supra.
129. 418 U.S. at 742. He relied for this conclusion on provisions of the Michigan
School Code to the effect that local school districts are autonomous political entities
1248 RUTGERS LAW REVIEW ;[Vol. 28
the state's public schools, he deemed the local operating activities of

the school districts essential to encourage "educational excellence."'' 0
He did not respond to the district court's assertion that a state's delega-
tion of power over daily administration "does not dispel the [constitu-
tional] obligation of those who have broader control . . . [since] the
. . . obligation toward the individual school children is a shared
one."'' Instead, he placed great emphasis on the administrative diffi-
culties involved in a cross-district remedy.'
C. The Conclusion: A Detroit-Only Remedy
for a Detroit Violation
By a narrow reading of the record and by emphasizing certain por-
tions of the record to the exclusion of others, Chief Justice Burger
reached the conclusion that the segregatory practices which violated the
Constitution were confined to Detroit. Given the controlling principle
that "the scope of the remedy is determined by the nature and extent
of the constitutional violation," the appropriate disposition of the case
was readily deduced. With an exhortation for "prompt formulation of
. . . a remedy which has been delayed since 1970,"'Il the Court re-
manded the case for fashioning of a Detroit-only remedy.
operating through popularly elected school boards and responsible for such local operat-
ing procedures as hiring of personnel, choosing the curriculum, disciplining students, and
selecting textbooks. 418 U.S. at 742 n.20. But see 484 F.2d at 246-49. This conclusion
was a major cause of the division among the members of the Court. Justice Douglas, in
his dissent, cited the Michigan constitution and statutory law to the effect that Michi-
gan's education system was unitary and directly controlled by the legislature through the
State Board of Education. He listed as being under state control the formulation of
school district boundaries, school site selection, and approval of funding for school
construction by municipal bonds. He therefore concluded that "[e]ducation in Michigan
is a state project with very little completely local control .... " 418 U.S. at 758. See
also id. at 790-97 (Marshall, J., dissenting). Justices White and Marshall each argued
that the fourteenth amendment places the duty to provide effective desegregation upon
the states, not upon the local school boards. See id. at 771-73, 808.
130. 418 U.S. at 742, citing San Antonio Independent School Dist. v. Rodriguez, 411
U.S. 1, 50 (1973).
131. 338 F. Supp. 582, 593 (E.D. Mich. 1971).
132. See 418 U.S. at 743-44. He noted that the district court had not yet addressed
the operational problems of the school system under a metropolitan plan. Justice White,
in dissent, argued that a metropolitan plan was not only more effective in eliminating
desegregation, but also that it was administratively more feasible than Detroit-only plans.
Id. at 767-68.
Given Swann's rejection of administrative burdens and inconvenience as a reason for
compromising a desegregation decree, 402 U.S. at 28, the Bradley majority's emphasis on
the administrative difficulty of a metropolitan remedy cannot be accepted as a satisfacto-
ry rationale. Since the district court had not yet considered a specific metropolitan plan
and had, moreover, found that a metropolitan plan would be less burdensome, more
efficient, and more effective than Detroit-only plans, 345 F. Supp. 914, 930 (E.D. Mich.
1972), the Court's discussion of administrative problems appears to have been a
makeweight argument.
133. 418 U.S. at 753.
IV. EVALUATION
A. From "State Action" to "NeighborhoodSchools":

Bradley Sounds the Retreat
The linchpin of the Bradley decision was the Swann thesis that "the
nature of the violation determines the scope of the remedy."' 13 4 But
in Swann, a unanimous Court had applied this rubric to uphold a de-
segregation plan that included grouping suburban and innercity schools
and transporting students accordingly. 3 5 While Swann is distinguish-
able from Bradley, since all the schools involved in Swann were within
the same municipality,"' the Bradley decision, for the first time, im-
posed a geographical limitation on the scope of the remedy.
By holding that a constitutional violation confined to a single school
district must be corrected only within the district, 3 7 the Supreme Court
diverged from its own previous analysis of fourteenth amendment viola-
tions in public school systems-an analysis which had been closely fol-
lowed by the district court.'3 8 Finding that unconstitutional segrega-
tion existed in Detroit schools and that defendant city and state officials
were under an affirmative obligation to correct it, the district court
characterized the Detroit-only plans as "legally insufficient"' 39 because
they would not result in significant desegregation. 4 ° The effective-
ness standard of Green' 4 ' therefore required the court to "look beyond
the limits of the Detroit school district for a solution to the problem
of segregation in the Detroit public schools."' 2
In affirming the district court, the court of appeals pointed out that
support for the interdistrict scope of the remedy was to be found in
the Supreme Court's holding in Wright'4 ' that a municipality may not
134. 402 U.S. at 16.

135. Id. at 27-30.
136. 402 U.S. 1 (1971 ). See notes 58-67 and accompanying text supra.
137. 418 U.S. at 745.
138. Much of the district court's reasoning is reported in the court of appeals'
opinion. Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973).
139. Id. at 244.
140. The district court found-and the Supreme Court did not dispute the finding-
that a Detroit-only plan would result, on the average, in a racial mix of 65 percent black
to 35 percent white, with many schools in the city having concentrations of blacks as
high as 75 percent to 90 percent. 418 U.S. at 801 (Marshall, J., dissenting). The lower
court also took into account a ten-year trend of "white flight" to the suburbs and
concluded that the likely effect of a Detroit-only plan would be "a single segregated
Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of
suburbs . . . overwhelmingly white .... " 484 F.2d at 249. The court of appeals held
that the Detroit-only plans could not correct the constitutional violations which the
district court had found in Detroit. Id. at 250.
141. 391 U.S. 430 (1968). Green, like Swann, involved a single school district. See
notes 53-57 and accompanying text supra.
142. 484 F.2d at 244.
143. 407 U.S. 451 (1972). See notes 68-85 and accompanying text supra.
withdraw from a county-wide school system when the result would be

to increase racial imbalance. To the Sixth Circuit, "[i]f school bound-
ary lines cannot be changed for an unconstitutional purpose, it follows
logically that existing boundary lines cannot be frozen for an unconsti-
tutional purpose." 1" By reversing the lower courts on the issue of a
metropolitan remedy, the Bradley Court thus vitiated the effectiveness
standard enunciated in Green and Wright.145
By failing to apply to an interdistrict situation the rationale of
Keyes v. School District No. 1,1" the Court has apparently retreated
from its earlier position that the responsibility for desegregating uncon-
stitutionally operated school rests with the state.' 47 In Keyes, the sin-
144. 484 F.2d at 250. The crossing of district boundary lines may be more acceptable
to the Court when the districts involved can be viewed as part of a larger community. In
Wright, since the city and county school districts were currently consolidated, there was
a demonstrable community of interest which made it reasonable to consider the effect of
the city's withdrawal on the entire system. But considerable evidence was presented that
metropolitan Detroit may also be regarded as a single community. In the tri-county area
of Detroit, several governmental functions are consolidated, including a metropolitan
transit system, the water and sewer systems, the park authority, and a joint government
council. The metropolitan area has been classified by the federal government as a
"Standard Metropolitan Statistical Area" with "economic and social integration." 418
U.S. at 804 (Marshall, J., dissenting).
145. Chief Justice Burger asserted that the lower courts had approved a metropolitan
remedy "only because of their conclusion that total desegregation of Detroit would not
produce the racial balance which they perceived as desirable." 418 U.S. at 740. But the
Bradley dissenters convincingly demonstrated the inaccuracy of his appraisal of the lower
courts' rulings. See note 97 supra. Apparently, however, the majority was persuaded by
the reasoning of Circuit Judge Weick's dissenting opinion inthe court of appeals. 484
F.2d at 259-74. Judge Weick maintained that Bradley was a case where the state had
never operated a dual school system and where racial concentration in the Detroit
schools was primarily caused by de facto residential segregation and population shifts.
Arguing that the Detroit condition involved "social considerations" beyond the scope of
permissible judicial intervention, he stated:
It is submitted that the courts are not called upon to integrate the school system,
using law as a lever. Nor should judges assume to act as legislators, for which they
are neither fitted nor qualified. It is enough for judges to perform their judicial
function and to abide by the separation of powers doctrine provided by our Consti-
tution.
Id.at 261.
146. 413 U.S. 189 (1973).
147. Since Brown I and II, the school desegregation decisions have been grounded on
the equal protection clause of the fourteenth amendment and thus have required a
showing of state action. See notes 38-45 and accompanying text supra. While inmost
instances the state has been perceived as acting through the local school boards, there
has been no question but that these school boards are state agencies. In the words of
Justice Douglas: "The school board is a state agency and the lines that it draws, the
locations it selects for school sites, the allocation it makes of students, the budgets it
prepares are state action for Fourteenth Amendment purposes." Keyes v. School Dist.
No. 1, 413 U.S. 189, 215 (1973) (concurring opinion).
This view was also expressed by the district court in Bradley: "That a state's form of
government may delegate the power of daily administration of public schools to officials
with less than state-wide jurisdiction does not dispel the obligation of those who have
broader control to use the authority they have consistently with the constitution." 484
F.2d at 239.
gle school district involved was coextensive with the entire City and
County of Denver. 4" The Court held that a showing of segregation
in one portion of the school system gave rise to a presumption of a
district-wide constitutional violation that must be corrected by a dis-
trict-wide remedy. 149 In Bradley, which was concerned with the
schools of metropolitan Detroit, the factual situation was remarkably
similar, except that the black core-city schools and the white suburban
schools were separated by school district lines.'"" In both cases, the
issue was whether segregation as to a part of a district will give rise
to a remedy as to the whole. In Keyes, a metropolitan remedy was
found to be constitutionally required, while in Bradley a comparable
remedy was struck down.' 51
To a great extent, then, the Bradley result rests on a policy of recog-
nizing local control of public education. 52 In Keyes, the Court had
expressly declined to decide whether a "neighborhood school policy"
would, alone, "justify racial or ethnic concentration" absent findings of
de jure segregation. 5 The Bradley Court's emphasis on preserving
local control, its willingness to accept, as satisfying constitutional stand-
ards, a remedy which will leave Detroit schools nearly uniracial, 5 and
its rejecton of "racial balance" as a constitutional goal, when taken to-
gether, strongly imply the Court's answer to the question raised but left
undecided in Keyes.15 5 Furthermore, Bradley follows shortly after San
Antonio Independent School District v. Rodriguez,' 56 in which the
Court upheld the state system of financing public schools by local prop-
erty taxation. Bradley and Rodriguez appear to signal a trend toward 57
"defederalizing" judicial involvement in the area of public education.'
148. 413 U.S. at 191.

149. Id. at 208.
150. 484 F.2d at 245.
151. Dictum in Keyes indicated that the presumption of district-wide segregation
would not apply if the acting units of the state were "separate, identifiable, and
unrelated." 413 U.S. at 203. However, the decisive factor for the Court appeared to be
whether there was sufficient relatedness among the acting units so that the inference of
unity of purpose was reasonable. See note 81 supra. Arguably, where school districts are
subordinate to a single state board of education, as in Michigan, there is sufficient
interrelationship and unity of interest to warrant the inference of singleness of purpose
and segregative intent. The Bradley opinion did not explain why school districts should
be treated as unrelated while schools within a district, after Keyes, are presumed to be
actingas a single unit.
152. See nutes 99-102, 128-32 and accompanying text supra.
153. 413 U.S. at 212.
154. See note 140 supra.
155. Bradley was a case where, as the Court agreed, there were clear acts of de jure
segregation in Detroit. 418 U.S. at 738 n.18. Further, Keyes specifically held that "the
mere assertion of . . . a [neighborhood school] policy is not dispositive where . . .
schco! authorities have been found to have practiced de jure segregation in a meaningful
portion of the school system. ... 413 U.S. at 212.
156. 411 U.S. 1 (1973).
157. Rodriguez held that education, while an important social value, is not a
Conclusions regarding such a trend are speculative at this time; this

hypothesis nevertheless helps to explain the Court's view of "state ac-
tion" as restricted to "where the state's agent acts."' 158 Consistent with
a "hands-off" policy, this view effectively localizes the constitutional
violation and, concomitantly, limits judicial interference in the state's
domain.
B. Implications of Bradley for Future Cross-DistrictRelief

The majority opinion did not entirely preclude metropolitan relief. 15 9
Justice Stewart, in a concurrence, maintained that the opinion had not
"fundamental interest" guaranteed by the federal constitution. See id. at 29-37. Justice
Powell, writing for the Court, reasoned that to consider education a fundamental right
would subject state legislation to "strict scrutiny" by the judiciary and thereby make the
Court a superlegislature. See id. at 31. In language indicating a strong policy favoring
deference to state and local control of education, he stated:
• . . In an era that has witnessed a consistent trend toward centralization of the
functions of government, local sharing of responsibility for public education has sur-
vived. . . . The persistence of attachment to government at the lowest level where
education is concerned reflects the depth of commitment of its supporters. In part,
local control means . . . the freedom to devote more money to the education of
one's children. Equally important, however, is the opportunity it offers for partici-
pation in the decision making process that determines how those local tax dollars
will be spent. Each locality is free to tailor local programs to local needs.
Pluralism also affords some opportunity for experimentation, innovation, and a
healthy competition for educational excellence ...
Id. at 49-50. It is noteworthy that deference to local authority in the Bradley context
means deferring to the very officials who may have engaged in segregation.
159. On April 22, 1975, the Court declined to review Sixth and Seventh Circuit
decisions which could lead to orders to consolidate school districts. Weaver, Justices Bar
Review of City-Suburban School Mergers, N.Y. Times, April 22, 1975, at 20, cols. 3-6
[hereinafter cited as Weaver]. This action has led one commentator to conclude that the
Court's application of Bradley is "not going to be inflexible." Id. at col. 3.
In United States v. Board of School Commissioners of Indianapolis, 332 F. Supp. 655
(S.D. In. 1971), afj'd, 474 F.2d 81 (7th Cir. 1973), the city and an adjacent county had
been merged by the state legislature in 1969. However, the school systems remained
separate. The district court concluded that a desegregation plan covering the "Uni-Gov"
area was not barred by Bradley. The Seventh Circuit agreed but remanded for a hearing
on whether discrimination in the county supported such a merger. Id. at cols. 5-6.
In the second case, the Kentucky State Board of Education had ordered Louisville and
the surrounding Jefferson County to remain separate while requesting other school
districts in the state to consolidate. Newburgh Area Coun., Inc. v. Board of Educ., 489
F.2d 925 (6th Cir. 1973), vacated, 418 U.S. 918 (1974). In December of 1973, the Sixth
Circuit found de jure segregation and ordered the city and county to consolidate. And, in
1974, after Bradley was decided, the circuit court, on rehearing, affirmed its earlier
decision. Civil Liberties, April 1975, at 3, col. 1. The court distinguished Bradley on the
ground that in the Louisville case both the city and county had practiced purposeful
desegregation. Weaver, supra, at cols. 4-5.
Three other cases are working their way through the lower federal court. In July 1974,
in Evans v. Buchanan, 379 F. Supp. 1218 (1974), a three-judge court held that the
school system of Wilmington, Delaware had never segregated. The court ordered the
defendant state school board to submit two plans, one for metropolitan desegregation.
Further decision is expected when the court hears the arguments of suburban districts.
Civil Liberties, April 1975, at 3, cols. 3-4.
In another case, a group of plaintiffs in Buffalo, New York, filed suit against the city
1975] CASE COMMENTS1 1253
dealt with "substantive questions of constitutional law."' 160 He added

that in other factual situations an interdistrict remedy could be "proper,
or even necessary."'' Nevertheless, the immediate effect of Bradley
will be to increase the obstacles for plaintiffs seeking cross-district re-
lief.162 The holding ofthe case means that in order to obtain a metro-
politan remedy, at least one of the following must be shown: (1) all
of the districts involved practiced de jure segregation; (2) the state
practiced de jure segregation by purposefully gerrymandering school
district lines; or (3) the state or district practiced de jure segregation
which was a "substantial cause" of interdistrict segregative effects. 6 "
As to the first requirement, Bradley means that all of the districts
involved must be joined as parties defendant and that segregative acts
must be proved as to each district. Bradley itself, which involved only
one defendant school district, generated 41 days of trial, numerous rul-
ings and orders, and a six-volume record; and, after nearly five years,
there was still no desegregation plan in effect. 64 Where multiple de-
fendants are involved in a suit for a metropolitan remedy, it can be
expected that the litigation will be extremely complex, expensive, and
time-consuming.'6 5
In addition to the procedural difficulties inhering in the first required
showing, the second requirement set forth above poses a major substan-
tive problem of proof. The Court relied on the fact that Michigan's
school district boundaries were historically drawn by neutral legisla-
tion, 66 implying that the lines may be preserved even though they ef-
fectively cause segregation today. The Court gave no indication that
and surrounding suburban districts. Decision is expected in this case also. Id. at cols. 3-4.
And in Atlanta, Georgia, the American Civil Liberties Union (ACLU) has brought suit
on behalf of black parents who are seeking metropolitan integration. The ACLU
maintains it is entitled to a metropolitan remedy because there were decades of de jure
segregation in Atlanta and suburban counties had engaged in purposeful acts to preserve
segregation. See id. at col. 3.
160. 418 U.S. at 753.
161. Id. at 755. See also note 107 supra.
162. See Peterson, State School Aides Gloomy on Integration, N.Y. Times, Jan. 22,
1975, at 35, col. 1; Time, Feb. 17, 1975, at 77.
Analysis of the status of school desegregation in major metropolitan areas demon-
strates need for further remedial action. See U.S. BUREAU OF THE CENSUS, U.S. DEP'T OF
COMMERCE, SOCIAL AND ECONOMIC STATISTICS ADMINISTRATION, 1970 CENSUS OF
POPULATION, SUBJECr REPORTS: NEGRO POPULATION, pc(2)-lB [hereinafter cited as
1970 CENSUs].
164. See 418 U.S. at 721-24, 748.
165. The Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000c-6 (1970) (authorizes
the Attorney General to bring suits on behalf of victims of segregation who cannot
afford to take legal action). See also note 5 supra.
166. See notes 40-45 and accompanying text supra. In Keyes, Justice Powell, concur-
ring in part and dissenting in part, recommended abandoning the de jure/de facto
distinction. 413 U.S. 189, 219 (1973). See also 418 U.S. at 761 (Douglas, J., dissent-
ing).
1254 RUTGERS LAW REVIEW ,[Vol. 28
it would view a state's maintenance of existing boundaries despite their

segregative effect as "purposeful" segregation. In thus reaffirming the
de facto/de jure distinction in the context of school district boundaries,
the Court has effectively ruled that a line drawn in the past can be
maintained even if the same line could not be lawfully drawn today.
Further, since the segregative effect of school district lines arises today
as a result of 1demographic shifts and changing residential patterns, or
"white flight,"' 6 7 the historical intent with which the boundaries were
drawn is largely irrelevant to their effect on racial patterns. This sec-
ond possible basis of a cross-district remedy is probably relevant, there-
fore, in only the class of cases where at the time of Brown the state
promoted segregation by statutory law; it proffers little relief for North-
ern, urban segregation. Finally, the third requirement-a showing of
interdistrict segregative effects-will be difficult to prove given the un-
certainty of what the Court will consider an interdistrict effect and how
substantial an effect the Court will require. 8
Thus, the Bradley decision may be viewed as an attempt by the
Court to restrict judicial intervention in the problem of the increasing
racial isolation of minorities in urban centers throughout the nation.' 6 '
Presented with the specter of "reverse discrimination" and successive
judicial readjustments of school district lines and pupil assignments in
order to reverse the effects of demographic changes and population
shifts, 70 the Bradley majority declined to accept "racial balance" as a
constitutional goal. Moreover, in the context of challenges to metro-
politan segregation, the Court has reversed the clear trends of judicial
167. See U.S. COMM. ON CIVIL RIGHrs, Racial Isolation in the Public Schools, in
CIVIL RIGHTS, supra note 26, at 606-10 [hereinafter cited as Racial Isolation]; cf. 416
U.S. at 759 n.9 (Douglas, J., dissenting); id. at 801-02 (Marshall, J., dissenting).
168. In its treatment of the Carver School arrangement, in which a predominately
black suburban school district bussed its students past available space in white school
districts to a black Detroit high school, the Court indicated that there must be more than
an "isolated instance" to justify a metropolitan remedy. See notes 118-20 and accompa-
nying text supra.
169. See Racial Isolation, supra note 167, at 607-10; 1970 CENSUS, supra note 162.
The 1967 report of the Commission on Civil Rights listed multiple causative factors,
including location of low-income housing in the central city; racial discrimination in
private and government industry which, in turn, increases the social and economic
separation of the races; state systems of school finance which reinforce disparities of
wealth between cities and suburbs; and racial discrimination in the private sector. Racial
Isolation, supra note 167, at 608-09.
170. See the dissenting opinion of Judge Weick, 484 F.2d at 262, 263-66; Appendix
A, id. at 272-74. See also note 64 supra.
Only last term, in DeFunis v. Odegaard,416 U.S. 312 (1974), the Supreme Court held
moot a case which raised the issue of "reverse discrimination." It appeared that the Court
was unable to obtain a plurality of justices to agree on a decision. See generally
Hellerstein, The Benign Quota, Equal Protection and "The Rule in Shelley's Case", 17
RUTGERS L. REV. 531 (1963); Kaplan, Equal Justice in an Unequal World: Equality for
the Negro-The Problem of Special Treatment, 61 Nw. U.L. REV. 363 (1966); Equal
Protection, supra note 29, at 1119-20. See also note 64 supra.
doctrine by limiting the state action concept, silently reaffirming the

de jure/de facto dichotomy, 17 ' and limiting the traditionally broad dis-
cretion of the district court's equity power to decree an effective
remedy for segregated schools.
V. CONCLUSION
Whether or not Bradley is limited to the factual situation where there

has been no history of a state-imposed dual school system, 7 ' its long-
range effect is predictable. Where central-city school systems are pre-
dominantly uniracial, the substantive problems of proof for desegrega-
tion litigants will be extremely difficult; the schools will be racially
identifiable, yet "unitary." Unless there is clear proof of interdistrict
de jure violations, the remedy will be limited to the district which has
violated the Constitution. Moreover, where no de jure violations are
found, there will be no remedy. But even if the single-district rem-
edy is granted, the insurmountable dilemma arises: "[H]ow do you
desegregate a black city, or a black school system?"' 7 3
The increasing racial isolation of minorities in the nation's urban cen-
ters is coupled with a disproportionate concentration of poverty and a
shrinking tax base; those who can do so leave for the suburbs.' 74 This
fact, together with Rodriguez' approval of local property taxation as a
means to finance public education, will lead to central-city schools
which are inferior in facilities, student-teacher ratios, and other educa-
tional advantages because the funding is not commensurate with that
available for suburban schools. Although a state, such as Michigan,
has undisputed power to redraw school district lines, Bradley holds that
the federal district courts are limited in their discretion to compel the
states to use this power. The ultimate result of the decision could thus
be the "separate and unequal" schools' 75 condemned by both Brown
and Plessy v. Ferguson.7 '
Brown was a beginning. As a constitutional decision, its meaning
has expanded and changed to encompass a widening class of cases. If
Brown is to have meaning in today's' Northern urban segregation, then
it must stand for the proposition that effectively separate schools, even
if equal, and certainly if unequal, are condemned
17
by the Constitution,
regardless of the reason for the separation.
171. Cf. notes 25, 42 supra.

172. See note 108 and accompanying text supra.
173. 418 U.S. at 729 n.8.
174. See Racial Isolation, supra note 167, at 608-09. Cf. 418 U.S. at 759-61 (Douglas,
J., dissenting). See also id. at 759-60 nn.9-12.
175. 418 U.S. at 759-61 (Douglas, J., dissenting).
176. 163 U.S. 537 (1896).
177. Cf. Keyes, 413 U.S. at 219-36 (Powell, J., concurring).
In 1967, the Civil Rights Commission stated: "The responsibility for
corrective action rests with governments at all levels and with citizens
and organizations throughout the Nation. We must commit ourselves
as a Nation to the establishment of equal educational opportunity of
high quality for all children.' 17 However, since Brown, it has been
black parents, children, and organizations committed to desegregation
who have shouldered the major part of the burden. They have jumped
the substantive hurdles of "state action," "de jure segregation," and
"segregative intent." Now, after Bradley, if they are to achieve a
metropolitan remedy they must join all districts as defendants and
prove purposeful, substantial, de jure, interdistrict violations and ef-
fects. Clearly, the burden for enforcing the Brown right has been mis-
placed.
If the Court cannot or will not develop a judicial remedy for urban
school segregation, 1 9 then Congress must. Equal educational oppor-
tunity requires the combined efforts of the judiciary, the legislative
branch, and the administrative departments of the executive branch.
Bradley indicates that the judiciary will no longer forge the tools neces-
sary to desegregate the nation's schools.
178. Racial Isolation, supra note 167, at 209. The Civil Rights Commission recom-
mended new legislation "for the purpose of removing . . .racial imbalances from our
public schools .... " Id. The Commission also recommended, inter alia, that Congress
establish "a uniform standard providing for the elimination of racial isolation in the
schools"; that Congress "vest" the responsibility for meeting that standard in each of the
50 states; and that low and middle-income housing projects be located so as "to reduc[e]
residential racial concentrations and eliminat[e] racial isolation in the schools." Id. at
210-12.
179. In his dissenting opinion in Bradley, Justice White stated:
There are undoubted practical as well as legal limits to the remedial powers of
federal courts in school desegregation cases. The Court has made it clear that the
achievement of any particular degree of racial balance in the school system is not
required by the Constitution; nor may it be the primary focus of a court in devis-
ing an acceptable remedy for de jure segregation.
418 U.S. at 763-64. It thus appears that a clear majority of the Court does not see
racial imbalance as per se unconstitutional.

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COMMENTS

Busing-Supreme Court Restricts Equity Power of District Courts to

1. 347 U.S. 483 (1954).

A. Equal EducationalOpportunity-The Right and the Remedy

ard the district courts were to apply in evaluting compliance. The

34. See 349 U.S. at 301.

Where de facto school segregation has resulted from prior de jure

B. The Development of JudicialStandards

Three years later, in Swann v. Charlotte-Mecklenburg Board of

language, the Court held that, while it would disapprove of ordering

2. School District Boundaries

the effect-not the purpose or motivation-of a school board's action

77. Id. at 462.

A. The Major Premise: ControllingPrinciplesof Law-the Right,

92. 418 U.S. at 744, citing 402 U.S. at 16.

that there is no substantive constitutional right to "any particular racial

which is "a substantial cause" of segregation "in an adjacent 04district"

his discussion of these principles, he avoided reference to Green's affirm-

B. The Minor Premise: The Detroit Violation

111. See notes 53-57 and accompanying text supra.

gation by the state in Detroit. Rather, the crux of his disagreement

in the outlying districts or that state activities in outlying districts had

123. 418 U.S. at 751.

the state's public schools, he deemed the local operating activities of

A. From "State Action" to "NeighborhoodSchools":

134. 402 U.S. at 16.

withdraw from a county-wide school system when the result would be

148. 413 U.S. at 191.

Conclusions regarding such a trend are speculative at this time; this

B. Implications of Bradley for Future Cross-DistrictRelief

dealt with "substantive questions of constitutional law."' 160 He added

it would view a state's maintenance of existing boundaries despite their

doctrine by limiting the state action concept, silently reaffirming the

Whether or not Bradley is limited to the factual situation where there

171. Cf. notes 25, 42 supra.

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