January 15, 1991

On writ of certiorari to the United States Court of Appeals for the Tenth Circuit

Chief Justice Rehnquist delivered the opinion of the Court.

Petitioner Board of Education of Oklahoma City sought dissolution of a decree entered by the District Court imposing a school desegregation plan. The District Court granted relief over the objection of respondents Robert L. Dowell, et al., black students and their parents. The Court of Appeals for the Tenth Circuit reversed, holding that the Board would be entitled to such relief only upon "[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions . . . ." We hold that the Court of Appeals' test is more stringent than is required either by our cases dealing with injunctions or by the Equal Protection Clause of the Fourteenth Amendment.

This school desegregation litigation began almost 30 years ago. In 1961, respondents, black students and their parents, sued petitioners, the Board of Education of Oklahoma City (Board), to end de jure segregation in the public schools. In 1963, the District Court found that Oklahoma City had intentionally segregated both schools and housing in the past, and that Oklahoma City was operating a "dual" school system -- one that was intentionally segregated by race. In 1965, the District Court found that the School Board's attempt to desegregate by using neighborhood zoning failed to remedy past segregation because residential segregation resulted in one-race schools. Residential segregation had once been state imposed, and it lingered due to discrimination by some realtors and financial institutions. The District Court found that school segregation had caused some housing segregation. In 1972, finding that previous efforts had not been successful at eliminating state imposed segregation, the District Court ordered the Board to adopt the "Finger Plan," under which kindergarteners would be assigned to neighborhood schools unless their parents opted otherwise; children in grades 1-4 would attend formerly all white schools, and thus black children would be bused to those schools; children in grade five would attend formerly all black schools, and thus white children would be bused to those schools; students in the upper grades would be bused to various areas in order to maintain integrated schools; and in integrated neighborhoods there would be stand-alone schools for all grades.

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In 1984, the School Board faced demographic changes that led to greater burdens on young black children. As more and more neighborhoods became integrated, more standalone schools were established, and young black students had to be bused further from their inner-city homes to outlying white areas. In an effort to alleviate this burden and to increase parental involvement, the Board adopted the Student Reassignment Plan (SRP), which relied on neighborhood assignments for students in grades K-4 beginning in the 1985-1986 school year. Busing continued for students in grades 5-12. Any student could transfer from a school where he or she was in the majority to a school where he or she would be in the minority. Faculty and staff integration was retained, and an "equity officer" was appointed. In 1985, respondents filed a "Motion to Reopen the Case," contending that the School District had not achieved "unitary" status and that the SRP was a return to segregation. Under the SRP, 11 of 64 elementary schools would be greater than 90% black, 22 would be greater than 90% white plus other minorities, and 31 would be racially mixed...

[T]he District Court found that demographic changes made the Finger Plan unworkable, that the Board had done nothing for 25 years to promote residential segregation, and that the school district had bused students for more than a decade in good-faith compliance with the court's orders. 677 F. Supp. 1503 (WD Okla. 1987). The District Court found that present residential segregation was the result of private decisionmaking and economics, and that it was too attenuated to be a vestige of former school segregation. It also found that the district had maintained its unitary status, and that the neighborhood assignment plan was not designed with discriminatory intent. The court concluded that the previous injunctive decree should be vacated and the school district returned to local control. The Court of Appeals reversed...

In Milliken v. Bradley (Milliken II), 433 U. S. 267 (1977), we said:

From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination. Brown considered the "complexities arising from the transition to a system of public education freed of racial discrimination" in holding that the implementation of desegregation was to proceed "with all deliberate speed." 349 U. S., at 299-301 (emphasis added). Green also spoke of the "transition to a unitary, nonracial system of public education." 391 U.S., at 436 (emphasis added).

...Local control over the education of children allows citizens to participate in decisionmaking, and allows innovation so that school programs can fit local needs. Milliken v. Bradley (Milliken I), 418 U. S. 717, 742 (1974); San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 50 (1973). The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by the local authorities. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that "necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination. See Milliken v. Bradley [Milliken II], 433 U. S. at 280-82." Spangler v. Pasadena City Bd. of Education, 611 F. 2d, at 1245, n. 5 (Kennedy, J., concurring).

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A district court need not accept at face value the profession of a school board which has intentionally discriminated that it will cease to do so in the future. But in deciding whether to modify or dissolve a desegregation decree, a school board's compliance with previous court orders is obviously relevant. In this case the original finding of de jure segregation was entered in 1961, the injunctive decree from which the Board seeks relief was entered in 1972, and the Board complied with the decree in good faith until 1985. Not only do the personnel of school boards change over time, but the same passage of time enables the District Court to observe the good faith of the school board in complying with the decree. The test espoused by the Court of Appeals would condemn a school district, once governed by a board which intentionally discriminated, to judicial tutelage for the indefinite future. Neither the principles governing the entry and dissolution of in junctive decrees, nor the commands of the Equal Protection Clause of the Fourteenth Amendment, require any such Draconian result.

Petitioners urge that we reinstate the decision of the District Court terminating the injunction, but we think that the preferable course is to remand the case to that court so that it may decide, in accordance with this opinion, whether the Board made a sufficient showing of constitutional compliance as of 1985, when the SRP was adopted, to allow the injunction to be dissolved. The District Court should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable.

In considering whether the vestiges of de jure segregation had been eliminated as far as practicable, the District Court should look not only at student assignments, but "to every facet of school operations -- faculty, staff, transportation, extra-curricular activities and facilities." Green, 391 U. S., at 435. See also Swann, 402 U. S., at 18 ("[E]xisting policy and practice with regard to faculty, staff, transportation, extra-curricular activities, and facilities" are "among the most important indicia of a segregated system").

After the District Court decides whether the Board was entitled to have the decree terminated, it should proceed to decide respondent's challenge to the SRP. A school district which has been released from an injunction imposing a desegregation plan no longer requires court authorization for the promulgation of policies and rules regulating matters such as assignment of students and the like, but it of course remains subject to the mandate of the Equal Protection Clause of the Fourteenth Amendment. If the Board was entitled to have the decree terminated as of 1985, the District Court should then evaluate the Board's decision to implement the SRP under appropriate equal protection principles. See Washington v. Davis, 426 U. S. 229 (1976); Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 (1977).

The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter took no part in the consideration or decision of this case.

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

Oklahoma gained statehood in 1907. For the next 65 years, the Oklahoma City School Board maintained segregated schools -- initially relying on laws requiring dual school systems; thereafter, by exploiting residential segregation that had been created by legally enforced restrictive covenants. In 1972 -- 18 years after this Court first found segregated schools unconstitutional -- a federal court finally interrupted this cycle, enjoining the Oklahoma City School Board to implement a specific plan for achieving actual desegregation of its schools.

The practical question now before us is whether, 13 years after that injunction was imposed, the same School Board should have been allowed to return many of its elementary schools to their former one-race status. The majority today suggests that 13 years of desegregation was enough. The Court remands the case for further evaluation of whether the purposes of the injunctive decree were achieved sufficient to justify the decree's dissolution. However, the inquiry it commends to the District Court fails to recognize explicitly the threatened reemergence of one-race schools as a relevant "vestige" of de jure segregation.

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

I believe a desegregation decree cannot be lifted so long as conditions likely to inflict the stigmatic injury condemned in Brown I persist and there remain feasible methods of eliminating such conditions. Because the record here shows, and the Court of Appeals found, that feasible steps could be taken to avoid one-race schools, it is clear that the purposes of the decree have not yet been achieved and the Court of Appeals' reinstatement of the decree should be affirmed. I therefore dissent.

In order to assess the full consequence of lifting the decree at issue in this case, it is necessary to explore more fully than does the majority the history of racial segregation in the Oklahoma City schools. This history reveals nearly unflagging resistance by the Board to judicial efforts to dismantle the City's dual education system.

When Oklahoma was admitted to the Union in 1907, its Constitution mandated separation of Afro-American children from all other races in the public school system. In addition to laws enforcing segregation in the schools, racially restrictive covenants, supported by state and local law, established a segregated residential pattern in Oklahoma City. Petitioner Board of Education of Oklahoma City (Board) exploited this residential segregation to enforce school segregation, locating "all-Negro" schools in the heart of the City's northeast quadrant, in which the majority of the City's Afro-American citizens resided.

Matters did not change in Oklahoma City after this Court's decision in [Brown v. Board of Education]. Although new school boundaries were established at that time, the Board also adopted a resolution allowing children to continue in the schools in which they were placed or to submit transfer requests that would be considered on a case-by-case basis. Because it allowed thousands of white children each year to transfer to schools in which their race was the majority, this transfer policy undermined any potential desegregation.

Parents of Afro-American children relegated to schools in the northeast quadrant filed suit against the Board in 1961. Finding that the Board's special transfer policy was "designed to perpetuate and encourage segregation," the District Court struck down the policy as a violation of the Equal Protection Clause. Undeterred, the Board proceeded to adopt another special transfer policy which, as the District Court found in 1965, had virtually the same effect as the prior policy -- "perpetuat[ion] [of] a seg regated system."

The District Court also noted that, by failing to adopt an affirmative policy of desegregation, the Board had reversed the desegregation process in certain respects. For example, eight of the nine new schools planned or under construction in 1965 were located to serve all-white or virtually allwhite school zones. Rather than promote integration through new school locations, the District Court found that the Board destroyed some integrated neighborhoods and schools by adopting inflexible neighborhood school attendance zones that encouraged whites to migrate to all-white areas. Because the Board's pupil assignments coincided with residential segregation initiated by law in Oklahoma City, the Board also preserved and augmented existing residential segregation. Ibid.

Thus, by 1972, 11 years after the plaintiffs had filed suit and 18 years after our decision in Brown, the School Board continued to resist integration and in some respects the Board had worsened the situation... The District Court concluded: "This litigation has been frustratingly interminable, not because of insuperable difficulties of implementation of the commands of the Supreme Court . . . and the Constitution . . . but because of the unpardonable recalcitrance of the . . . Board." Consequently, the District Court ordered the Board to implement the only available plan that exhibited the promise of achieving actual desegregation -- the "Finger Plan" offered by the plaintiffs.

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The Board continued to operate under the Finger Plan until 1985, when it implemented the Student Reassignment Plan (SRP). The SRP superimposed attendance zones over some residentially segregated areas. As a result, considerable racial imbalance reemerged in 33 of 64 elementary schools in the Oklahoma City system with student bodies either greater than 90% Afro-American or greater than 90% non-Afro-American. More specifically, 11 of the schools ranged from 96.9% to 99.7% Afro-American, and approximately 44% of all Afro-American children in grades K-4 were assigned to these virtually allAfro-American schools.

In response to the SRP, the plaintiffs moved to reopen the case. Ultimately, the District Court dissolved the desegregation decree, finding that the school district had been "unitary" since 1977 and that the racial imbalances under the SRP were the consequence of residential segregation arising from "personal preferences." The Court of Appeals reversed, finding that the Board had not met its burden to establish that "the condition the [decree] sought to alleviate, a constitutional violation, has been eradicated."

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

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

In the decisions leading up to Brown I, the Court had attempted to curtail the ugly legacy of Plessy v. Ferguson, by insisting on a searching inquiry into whether "separate" Afro-American schools were genuinely "equal" to white schools in terms of physical facilities, curricula, quality of the faculty and certain "intangible" considerations. In Brown I, the Court finally liberated the Equal Protection Clause from the doctrinal tethers of Plessy, declaring that "in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal."

The Court based this conclusion on its recognition of the particular social harm that racially segregated schools inflict on Afro-American children:

Remedying and avoiding the recurrence of this stigmatizing injury have been the guiding objectives of this Court's desegregation jurisprudence ever since.

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

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

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