Missouri v. Jenkins and the de facto abandonment of court-enforced desegregation

Washington Law Review

Volumn 71, Issue 3, 1996, Pages 597-681

  Joondeph, Bradley W ^a  

^a NONE

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EID: 0347141503     PISSN: 00430617     EISSN: None     Source Type: Journal    
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References (476)

1. 115 S. Ct. 2038 (1995).
2. Three weeks after the Court's decision in Jenkins, the plaintiffs, the school district, and the State of Missouri reached a tentative agreement phasing out funding for desegregation remedies over the next three years. See Kevin Q. Murphy et al., State, District Reach Accord: Desegregation Funding to End by 1999 in KC School District, K.C. Star, July 8, 1995, at A1.
3. The parties have yet to agree on a final settlement of the litigation. See Donna McGuire et al., Scott, State Goes After School Funds: District Could Lose Tens of Millions in 1996-97 Year, K.C. Star, Oct. 27, 1995, at A1. On October 26, 1995, Missouri Attorney General Jay Nixon filed a motion seeking an end to all desegregation programs in the Kansas City, Missouri, School District (KCMSD) by June 1996, as well as asking the school district to repay the state $78 million for the state's share of previous salary assistance. Id.
4. Green v. County Sch. Bd., 391 U.S. 430, 437-38 (1968); see also United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 491 (1972) (stating that formerly segregated school systems must effectuate nothing less than "complete uprooting of the dual public school system").
5. See Keyes v. School Dist. No. 1, 413 U.S. 189, 208 (1973) (distinguishing de jure from de facto discrimination). More precisely, the Court has intentionally abandoned court-enforced desegregation, but implicitly and incrementally rather than candidly and definitively.
6. 498 U.S. 237 (1991).
7. 503 U.S. 467 (1992).
8. See id. at 487-89.
9. See Missouri v. Jenkins, 115 S. Ct. 2038, 2052 (1995).
10. 391 U.S. 430 (1968).
11. 347 U.S. 483 (1954) (Brown I).
12. See Missouri v. Jenkins, 115 S. Ct. at 2061-73 (Thomas, J., concurring); Freeman v. Pitts, 503 U.S. 467, 500-07 (1992) (Scalia, J., concurring).
13. Id. at 495.
14. See Geoffrey Stone et al., Constitutional Law 463-67 (2d ed. 1991);
15. J. Harvie Wilkinson III, From Brown to Bakke: The Supreme Court and School Integration: 1954-1978, at 29 (1979);
16. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1132-40 (1995);
17. Peter M. Shane, School Desegregation Remedies and the Fair Governance of Schools, 132 U. Pa. L. Rev. 1041, 1049 (1984);
18. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 946-51 (1989).
19. Brown I, 347 U.S. at 493.
20. Id. at 494; see also Drew S. Days, Vindicating the Promise of Brown - School Desegregation and the Civil Rights Act - Past, Present, and Future, 26 Pac. L.J. 772, 773 (1995) (noting "three faces" of Brown - one declaring separate but equal unconstitutional in principle, one discussing detrimental impact of segregation on black children, and one discussing provision of public education as most important function of state and local government).
21. Brown v. Board of Educ., 349 U.S. 294, 300-01 (1955) (Brown II).
22. Id. at 300.
23. Id. at 301.
24. See Numan V. Bartley, The Rise of Massive Resistance: Race and Politics in the South During the 1950's 67-81 (1969);
25. Albert P. Blaustein & Clarence Clyde Ferguson, Jr., Desegregation and the Law: The Meaning and Effect of the School Segregation Cases 240-71 (2d ed. 1962);
26. Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution 212-24 (1994); Stone et al., supra note 13, at 470-71;
27. Francis M. Wilhoit, The Politics of Massive Resistance 41-70 (1973); Wilkinson, supra note 13, at 24, 51-52, 61-127;
28. James S. Liebman, Desegregating Politics: "All-Out" School Desegregation Explained, 90 Colum. L. Rev. 1463, 1587 (1990); McConnell, supra note 13, at 1133-34.
29. Davison M. Douglas, The Rhetoric of Moderation: Desegregating the South During the Decade after Brown, 89 Nw. U. L. Rev. 92, 93, 100 (1994).
30. 102 Cong. Rec. H4515-16 (daily ed. Mar. 12, 1956);
31. United States Congress, Biographical Directory of the United States Congress 1774-1989, at 415-19 (1989) (identifying size of respective congressional delegations). The three southern senators not to sign the Manifesto were Lyndon Johnson of Texas and Estes Kefauver and Albert Gore of Tennessee.
32. Richard Kluger, Simple Justice 752 (1977).
33. Douglas, supra note 20, at 94.
34. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 50 (1991).
35. Id. at 46.
36. Taylor Branch, Parting the Waters 222-24 (1988). Eisenhower's reluctance to use federal executive power to enforce Brown was deeply ingrained. At a press conference two months before the Little Rock crisis, he stated: "'I can't imagine any set of circumstances that would ever induce me to send federal troops into . . . any area to enforce the orders of a federal court . . . . I would never believe that it would be a wise thing to do in this country.'"
37. Stephen E. Ambrose, Eisenhower: The President 410 (1984). A year earlier, Eisenhower had refused to intervene after mob violence erupted in Clinton, Tennessee, and in Mansfield, Texas, in response to court-ordered desegregation. Id. at 336.
38. In 1956, Eisenhower stated, "'I think it makes no difference whether or not I endorse [Brown]. The Constitution is as the Supreme Court interprets it; and I must conform to that and do my very best to see that it is carried out in this country.'" Ambrose, supra note 25, at 338; see also Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 131 (1994) (noting that, in addition to his public equivocation, "[p]rivately, Eisenhower criticized the Brown decision in strong terms on numerous occasions"). In fact, the Eisenhower Administration successfully fought against legislation that would have given the Justice Department the authority to bring suits on behalf of desegregation plaintiffs in 1957. Rosenberg, supra note 23, at 46.
39. Ambrose, supra note 25, at 409 ("The President's moderation, the southerners felt, gave them license to defy the Court."); Alexander M. Bickel, The Least Dangerous Branch 266 (2d ed. 1986); Greenberg, supra note 19, at 213 (stating that Eisenhower's equivocal statements about Brown, "which could be read as a rejection of the wisdom in the Court's decision, surely encouraged some to express themselves in more extreme fashion"); Kluger, supra note 21, at 753 ("Eisenhower, either by design or by obtuseness, comforted and dignified those who were ranged against the Court.").
40. Greenberg, supra note 19, at 213 (contending that "if the executive branch was derelict [in supporting Brown], Congress was downright antagonistic"); Kluger, supra note 21, at 752-53.
41. Wilkinson, supra note 13, at 69. In introducing the Southern Manifesto on the House floor, Representative Smith of Virginia stated that the Supreme Court in Brown had "threaten[ed] the liberties of the people and the destruction of the reserved powers of the respective States, in contravention of the principles of that Constitution which all officials of all the three departments are sworn to uphold." 102 Cong. Rec. H4515 (daily ed. Mar. 12, 1956) (statement of Rep. Smith). And on a separate occasion, Senator Strom Thurmond of South Carolina called for the impeachment of justices and called the Court "a great menace to this country." Greenberg, supra note 19, at 213. In the wake of Brown, several senators, including Thurmond, Eastland, and Herman Talmadge of Georgia, joined groups such as the White Citizens Council, whose sole purpose was to preserve segregation. Id. at 216.
42. Rosenberg, supra note 23, at 88-91. For instance, in one Georgia case, a federal district court judge refused to enforce Brown and instead "held extensive hearings . . . to uphold the thesis that Negroes were of a lower standard of 'educability' than white students." Stell v. Board of Pub. Educ., 387 F.2d 486, 490 (5th Cir. 1967).
43. See Kluger, supra note 21, at 753 (explaining that "the Justices were deeply resentful over the White House's failure to lend its great persuasive powers to supporting the rightness of the Brown decision"); Earl Warren, The Memoirs of Earl Warren 291-92 (1977) (revealing Chief Justice Warren's disillusionment with Eisenhower's unwillingness to support Brown).
44. See Rosenberg, supra note 23, at 94-97.
45. See Branch, supra note 25, at 656-72. Riots at Oxford, Mississippi, in September 1962 - provoked largely by Governor Ross Barnett's refusal to permit the desegregation of Ole Miss - resulted in two deaths and hundreds of injuries, and caused President Kennedy to send 10,000 federal troops to quell the disturbance. Id. at 662-70.
46. See id. at 756-78. In the course of the anti-segregation demonstrations, Commissioner of Public Safety Bull Conner turned the city's high-powered fire hoses and police K-9 units on defenseless African-American children, injuring hundreds. Id. Also significant in raising national consciousness was the bombing of Birmingham's Sixteenth Street Baptist Church in September 1963, which occurred just after the SCLC and city leaders had reached an agreement to desegregate the city's public accommodations. Id. at 888-92. The bomb killed four young girls who were attending Sunday school. Id.
47. Most notoriously, a rural deputy sheriff, Cecil Price, and a group of accomplices murdered three civil rights volunteers in June 1964 near Philadelphia, Mississippi. See Juan Williams, Eyes on the Prize: America's Civil Rights Years, 1954-1965, at 229-49 (1987). The three volunteers disappeared on June 21, 1964, just as the Student Nonviolent Coordinating Committee (SNCC) was launching its 1964 Summer Project to register blacks to vote. Id. at 230. Instrumental to attracting national attention was that two of the volunteers - Andrew Goodman and Michael Schwerner - were whites from New York City. Id. The third volunteer was James Chaney, an African-American native of Mississippi. Id. at 231. Their disappearance attracted such notoriety that, while the search for the men continued, President Johnson met with the parents of Goodman and Schwerner at the White House. Id. Finally, on August 4, 1964, FBI agents discovered the bodies of the three men buried in an earthen dam. Id. at 234. They had each been shot to death, and Chaney had been savagely beaten before being killed. Id. at 235. Murder charges against Price and his accomplices, brought in state court, were ultimately dropped, but they were later were convicted of violating the volunteers' federal civil rights. Id.
48. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (1989 & Supp. 1994)).
49. Id. § 407, 78 Stat. 248. On the connection between these events in the civil rights movement and the passage of federal civil rights legislation, see Klarman, supra note 26, at 129-49.
50. Pub. L. No. 89-10, 79 Stat. 27-58.
51. Pub. L. No. 88-352, § 601, 78 Stat. 252-53 (1964).
52. See Rosenberg, supra note 23, at 47-50; Klarman, supra note 26, at 43 & n.160.
53. Rosenberg, supra note 23, at 50.
54. Green v. County Sch. Bd., 391 U.S. 430, 432-33 (1968). The County "initially established and maintained [the de jure system] under the compulsion of Virginia constitutional and statutory provisions mandating racial segregation in public education." Id. at 432. It retained the de jure system until 1965, "presumably on the authority of several statutes enacted by Virginia in resistance to the Brown decisions." Id. at 433.
55. Bowman v. County Sch. Bd., 382 F.2d 326, 330 (4th Cir. 1967) (en banc) (Sobeloff, J., concurring) (explaining that "eleven buses traverse the entire county to pick up the Negro students and carry them to the Watkins school, located in the western half of the county, and ten other buses traverse the entire county to pick up the white students for the New Kent school, located in the eastern half of the county"), rev'd, 391 U.S. 430 (1968).
56. Green, 391 U.S. at 433-34. The County adopted the plan so it could remain eligible for federal financial assistance from HEW. Id.
57. Id. at 441.
58. Bowman, 382 F.2d at 327 (stating that plaintiffs "contend[ed] that compulsive assignments to achieve a greater intermixture of the races, notwithstanding their individual choices, is their due"); Lino A. Graglia, When Honesty Is "Simply . . . Impractical" for the Supreme Court: How the Constitution Came to Require Busing for School Racial Balance, 85 Mich. L. Rev. 1153, 1158 (1987) (book review) (noting that NAACP Legal Defense Fund attorneys representing plaintiffs in Green had "stipulated that the school system was being operated free of racial discrimination").
59. See Paul Gewirtz, Choice in the Transition: School Desegregation and the Corrective Ideal, 86 Colum. L. Rev. 728, 738-54 (1986) (contrasting prohibitory and corrective approaches to desegregation remedies, and explaining why Green endorsed the latter) [hereinafter Gewirtz, Choice in the Transition]. Gewirtz has explained the essential differences between the two approaches as follows: The prohibitory approach is narrow; . . . it views the goal of antidiscrimination law as simply stopping new violations of the [antidiscrimination] principle. It is completely future-oriented. The corrective conception, by contrast, requires significant measures to eliminate the ongoing effects of discrimination; it requires remedial intervention that goes beyond the prohibitions of the antidiscrimination principle itself, since merely assuring prospective adherence to that principle will not undo continuing effects of past violations. Id. at 731.
60. Id. at 739 (noting that under prohibitory approach "the remedy is limited to ordering new violations to cease").
61. Liebman, supra note 19, at 1526 (explaining that under prohibitory approach, "[s]chool officials found to be utilizing discriminatory admissions practices [w]ould be ordered to desist and to admit black children to their schools on a 'nondiscriminatory basis' of those officials' choice").
62. Gewirtz, Choice in the Transition, supra note 47, at 732.
63. Liebman, supra note 19, at 1501 (stating that, "[a]ccording to the Correction theory, segregation involves an official's or agency's evil act with evil effects").
64. Mark Tushnet has written that the view that Brown did not require integration but '"merely forbids the use of governmental power to enforce segregation' . . . was almost universally shared in the years immediately following Brown." Mark Tushnet, The Significance of Brown v. Board of Education, 80 Va. L. Rev. 173, 175 (1994) (quoting Briggs v. Elliot, 132 F. Supp. 776, 777 (E.D.S.C. 1955)). According to Tushnet, although black plaintiffs challenged facially neutral policies in these years, they did so "only on the ground that they were government actions used disingenuously to perpetuate segregation." Id. at 176. This hypothesis is corroborated by a statement made in 1959 by Jack Greenberg, one of the NAACP Legal Defense Fund attorneys who litigated Brown. He then stated that if "there were complete freedom of choice, or geographical zoning, or any other nonracial standard, and all Negroes still ended up in certain schools, there would seem to be no constitutional objection." See Greenberg, supra note 19, at 383. Greenberg subsequently disavowed this opinion, stating during oral argument of Raney v. Board of Educ., 391 U.S. 443 (1968) (a companion case to Green), that "I did not know then what I know now." Greenberg, supra note 19, at 383.
65. Brown v. Board of Educ., 347 U.S. 483, 494 (1954) (Brown I).
66. Id.
67. Brown v. Board of Educ., 349 U.S. 294, 300 (1955) (Brown II).
68. Id. at 300-01.
69. See Freeman v. Pitts, 503 U.S. 467, 503-04 (1992) (Scalia, J., concurring) ("The constitutional right is equal racial access to schools, not access to racially equal schools . . . . We apparently envisioned no more than this in our initial post-Brown cases.").
70. 373 U.S. 683 (1963).
71. Id. at 685-86.
72. Id. at 687 (quoting Steele v. Louisville & Nashville R.R., 323 U.S. 192, 203 (1944)).
73. Id. at 688.
74. Id. at 687.
75. 358 U.S. 1 (1958).
76. Id. at 7. Several lower court decisions between Brown and Green also endorsed the prohibitory approach. See, e.g., Bell v. School City of Gary, 324 F.2d 209, 213 (7th Cir. 1963), cert. denied, 377 U.S. 924 (1964); Griffin v. Board of Supervisors, 322 F.2d 332, 336-37 (4th Cir. 1963), rev'd, 377 U.S. 218 (1964); Boson v. Rippy, 285 F.2d 43, 45-46 (5th Cir. 1960); Borders v. Rippy, 247 F.2d 268, 271 (5th Cir. 1957); Jackson v. School Bd., 203 F. Supp. 701 (W.D. Va. 1962), rev'd, 321 F.2d 230 (4th Cir. 1963); Brown v. Board of Educ., 139 F. Supp. 468 (D. Kan. 1955); Briggs v. Elliot, 132 F. Supp. 776, 777 (E.D.S.C. 1955).
77. Green v. County Sch. Bd., 391 U.S. 430, 441 (1968) ("The New Kent School Board's 'freedom-of-choice' plan cannot be accepted as a sufficient step to 'effectuate a transition' to a unitary system.").
78. Id. at 437 (stating that the district court "must measure the effectiveness of respondent School Board's 'freedom-of-choice' plan to achieve [the] end" of a racially nondiscriminatory school system); id. at 439 ("The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation.").
79. Id. at 437.
80. Id. at 440 (emphasis added) (quoting Bowman v. County Sch. Bd., 382 F.2d 326, 333 (4th Cir. 1967) (en banc) (Sobeloff, J., concurring), rev'd, 391 U.S. 430 (1968)).
81. Id. at 439.
82. Id. at 435 ("Racial identification of the system's schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations - faculty, staff, transportation, extracurricular activities and facilities.").
83. Id. at 437-38 (emphasis added).
84. Gewirtz, Choice in the Transition, supra note 47, at 739-40 (noting that "Green cemented the Court's commitment to a corrective conception of an antidiscrimination remedy").
85. The term "unitary" refers to a school system - or an aspect of a school system - that no longer contains any vestiges of the prior regime of state-imposed segregation. See Board of Educ. v. Dowell, 498 U.S. 237, 246 (1991). Conversely, a school district is "nonunitary" if vestiges of the de jure system remain. A formerly segregated school district that has achieved "unitary status" has satisfied the requirements of Brown; its legal obligations are the same as a school district that never unlawfully discriminated. Bradley W. Joondeph, Note, Killing Brown Softly: The Subtle Undermining of Effective Desegregation in Freeman v. Pitts, 46 Stan. L. Rev. 147, 150 (1993). Thus, upon a finding of unitary status, judicial supervision ends, and control returns to local officials. Id. Similarly, a school district achieves "partial unitary status" when it removes all vestiges of discrimination from one or more discrete aspects of its operations, such as student assignments, faculty assignments, or extracurricular activities. See id. at 157-58.
86. See Liebman, supra note 19, at 1511. Liebman attributes this presumption to the Court's decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), rather than Green, calling it the Swann "continuing-effect" presumption. Liebman, supra note 19, at 1511. Although Swann was the first decision in which the Court articulated this presumption explicitly, it was reiterating what it had decided implicitly in Green. See Gewirtz, Choice in the Transition, supra note 47, at 751.
87. See, e.g., Freeman v. Pitts, 503 U.S. 467, 496-97 (1992) (holding that, because current racial imbalances in school district's student assignments were attributable to intervening demographic changes, school district had achieved partial unitary status with respect to student attendance).
88. United States v. Fordice, 505 U.S. 717, 745 (1992) (Thomas, J., concurring) (characterizing Green presumption as "often irrebuttable in practice"); Freeman, 503 U.S. at 505 (Scalia, J., concurring) (calling the presumption "effectively irrebuttable (because the school district cannot prove the negative)").
89. Freeman, 503 U.S. at 485; see also Missouri v. Jenkins, 115 S. Ct. 2038, 2049 (1995) ("The ultimate inquiry is . . . whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable") (citations and quotation marks omitted); Board of Educ. v. Dowell, 498 U.S. 237, 250 (1991) (stating that district courts must assess "whether the vestiges of discrimination ha[ve] been eliminated to the extent practicable"); Milliken v. Bradley, 433 U.S. 267, 289-90 (1977) (Milliken II) ("[T]he burden of state officials is . . . to take the necessary steps 'to eliminate from the public schools all vestiges of state-imposed segregation.'") (quoting Swann, 402 U.S. at 15); Davis v. Board of Sch. Comm'rs, 402 U.S. 33, 37 (1971) ("Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.").
90. See, e.g., Fordice, 505 U.S. at 745 (Thomas, J., concurring) ("[O]ur decisions following Green indulged the presumption, often irrebuttable in practice, that a presently observable imbalance has been proximately caused by intentional state action during the prior de jure era."); Freeman, 503 U.S. at 494 ("The school district bears the burden of showing that any current [racial] imbalance is not traceable, in a proximate way, to the prior violation."); id. at 505 (Scalia, J., concurring) ("[O]nce state-enforced school segregation is shown to have existed in a jurisdiction in 1954, there arises a presumption, effectively irrebuttable (because the school district cannot prove the negative), that any current racial imbalance is the product of that violation, at least if the imbalance has continuously existed."); Swann, 402 U.S. at 26 (stating that where there exist racially identifiable schools in a nonunitary school district, "the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part").
91. See, e.g., United States v. Franklin Parish Sch. Bd., 47 F.3d 755 (5th Cir. 1995) (judicial supervision began in 1970 and is still in place); Dowell v. Board of Educ., 8 F.3d 1501 (10th Cir. 1993) (judicial supervision over Oklahoma City schools lasted from 1960 until 1991); Keyes v. Congress of Hispanic Educators, 902 F. Supp. 1274 (D. Colo. 1995) (terminating judicial supervision over Denver schools after school district had operated under desegregation decree for 25 years); Lee v. Geneva County Bd. of Educ., 892 F. Supp. 1387 (M.D. Ala. 1995) (school district, found liable for segregation in 1967, still under judicial supervision); Stanley v. Darlington County Sch. Dist., 879 F. Supp. 1341 (D.S.C. 1995) (school system still under court supervision, first found liable in 1964), rev'd in part, 84 F.3d 707 (4th Cir. 1996); Tasby v. Woolery, 869 F. Supp. 454 (N.D. Tex. 1994) (finding that Dallas Independent School District had achieved unitary status after being under court supervision since 1955); Tim Bryant, Delay in Desegregation Hearing Sought, St. Louis Post-Dispatch, Jan. 20, 1996, at A6 (St. Louis schools under judicial supervision since 1972);
92. Tim Cornell, Hub Eyes Greater School Choice, Boston Herald, Jan. 7, 1996, at 1 (Boston school district under court order since 1974);
93. John Egerton, Putting a Finer Finish on Integrated Metro Schools, Tennesseean, Jan. 28, 1996, at 1D (Nashville, Tennessee, schools under court supervision since 1955);
94. James Heany, School Woes Pose a Big Hurdle, Buffalo News, Jan. 24, 1996, at A1 (discussing settlement in Buffalo desegregation case, which had lasted since mid-seventies);
95. Sharon L. Jones, Was Court Oversight of Schools Worth It?, San Diego Union-Trib., Dec. 20, 1995, at A1 (San Diego schools under court supervision since 1967);
96. Peter Shinkle, Change of Heart Underscores Shift in Desegregation, Sunday Advoc., Mar. 31, 1996, at 1B (discussing 40-year-old desegregation case in East Baton Rouge Parish, Louisiana);
97. Susan C. Thomson, Little Rock Schools Chief Ready to Meet St. Louis, St. Louis Post-Dispatch, Feb. 6, 1996, at 1A (Little Rock, Arkansas, schools under supervision since 1957);
98. Linda K. Wertheimer, Modified Busing on Easy Road? Orange Stands Apart from Other Districts, Orlando Sentinel, Feb. 5, 1996, at C1 (Orange County, Florida, school system under supervision since 1971);
99. All Things Considered: Alternatives Sought to Replace Unliked Busing System (NPR radio broadcast, Jan. 15, 1996) (discussing ongoing desegregation litigation in Hillsborough County, Florida, where the school district has been under judicial supervision since 1971);
100. The precise number of formerly de jure school districts that remain under the supervision of federal courts is unclear. A recent survey indicated that approximately 13% of U.S. school districts had some sort of desegregation plan in place for the 1991-92 school year. David J. Armor, Forced Justice: School Desegregation and the Law 166 (1995). Of these plans, roughly half were imposed by a court or some other governmental entity. Id. at 213. These figures indicate that the number of school districts operating under court-ordered desegregation plans in 1992 was somewhere between 500 and 2000.
101. Cf. Kevin Brown, After the Desegregation Era: The Legal Dilemma Posed by Race and Education, 37 St. Louis U. L.J. 897, 898 (1993) (stating that, in summer of 1993, there were "over 500 school districts under some form of court supervision");
102. Peter Applebome, Opponents' Moves Refueling Debate on School Busing, N.Y. Times, Sept. 26, 1995, at A1 (reporting that federal government has filed briefs in 513 ongoing school desegregation cases, and that there may be at least that many cases in which federal government is not involved). This figure, however, probably understates the impact of these court-ordered plans, as a greater percentage of larger school districts are still implementing desegregation remedies. Armor, supra, at 166. The survey for the 1991-92 school year cited by Armor revealed that "about 32% of all medium-sized and larger school districts are subject to a current desegregation plan." Id.
103. In Jenkins, for instance, the State and the KCMSD abandoned their policies of de jure segregation in 1954, but the school district has yet to achieve unitary status and is still under federal court supervision. And the schools in Topeka, Kansas - original defendants in Brown I - are still under the jurisdiction of the federal courts. See Brown v. Board of Educ., 978 F.2d 585 (10th Cir. 1992) (Brown III), cert. denied, 509 U.S. 903 (1993).
104. See, e.g., Shaw v. Hunt, 64 U.S.L.W. 4437, 4400 (U.S. June 13, 1996) ("Racial classifications are antithetical to the Fourteenth Amendment, whose 'central purpose' was 'to eliminate racial discrimination emanating from official sources in the States.'") (quoting McLaughlin v. Florida, 379 U.S. 184, 192 (1964)); Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2118 (Scalia, J., concurring in part) ("In my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction."); id. at 2119 (Thomas, J., concurring in part) ("In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.").
105. Shaw v. Reno, 113 S. Ct. 2816, 2824 (1993) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
106. Id.
107. Adarand Constructors, 115 S. Ct. at 2113; see also Miller v. Johnson, 115 S. Ct. 2475, 2482 (1995) ("Laws classifying citizens on the basis of race cannot be upheld unless they are narrowly tailored to achieving a compelling state interest.").
108. See Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996) (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), to hold that Congress lacks authority under the Commerce Clause to abrogate states' sovereign immunity); United States v. Lopez, 115 S. Ct. 1624 (1995) (holding Gun-Free School Zones Act of 1990 unconstitutional as beyond Congress's power under Commerce Clause); Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (holding that federal Cigarette Labeling and Advertising Act did not preempt state law damages actions); New York v. United States, 505 U.S. 144 (1992) (striking down Federal Low-Level Radioactive Waste Policy Act's "take title" provision - which required states either to take ownership of low level waste or regulate its disposal according instructions of Congress - as unconstitutional "commandeering" of states' regulatory powers); Gregory v. Ashcroft, 501 U.S. 452 (1991) (holding that Age Discrimination in Employment Act (ADEA) does not proscribe states' from imposing mandatory retirement ages on state judges; displacing state prerogatives in determining qualifications of state government officials disrupts usual balance between federal and state powers, and therefore Congress needed to make this intention clear, which it did not do in ADEA); cf. Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (stating that "if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute") (internal quotations omitted). See generally Robert Marquand, Rehnquist-Led Court Shifts Power to States, Christian Sci. Monitor, Apr. 17, 1996, at 1. The principles of federalism have been especially important in the Rehnquist Court's habeas corpus jurisprudence. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750 (1991) (holding that federal habeas claims on which state prisoner has defaulted due to state procedural rule are barred absent showing of cause and prejudice or fundamental miscarriage of justice, overturning "deliberate bypass" standard as "based on a conception of federal/state relations that undervalued the importance of state procedural rules," and stating that cause and prejudice standard recognizes "the significant harm to the States that results from the failure of federal courts to respect them"); McClesky v. Zant, 499 U.S. 467, 491 (1991) (holding that state prisoner commits abuse of writ if he files second habeas petition without demonstrating cause and prejudice for his failure to raise claims therein in his first petition, stating that "[o]ur federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them"); Teague v. Lane, 489 U.S. 288, 310 (1989) (holding that new constitutional rules are not applicable on collateral review of convictions that have become final before rule is announced, stating that "the 'costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus . . . far outweigh the benefits,'" and that "retroactive application of new rules may be more intrusive on states' autonomy than enjoining criminal prosecutions because it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards") (quoting Solem v. Stumes, 465 U.S. 638, 654 (1984) (Powell, J., concurring).
109. 115 S. Ct. 1624 (1995).
110. Id. at 1632; see also id. at 1640 (Kennedy, J., concurring) (stating that "it is well established that education is a traditional concern of the States").
111. See, e.g., Board of Educ. v. Dowell, 498 U.S. 237, 248 (1991) (invoking "[c]onsiderations based on the allocation of powers within our federal system" in holding that the school district was not obligated to continue implementing its desegregation plan).
112. See, e.g., Missouri v. Jenkins, 115 S. Ct. 2038, 2061 (1995) (O'Connor, J., concurring) ("The necessary restrictions on [federal courts'] jurisdiction and authority contained in Article III of the Constitution limit the judiciary's institutional capacity to prescribe palliatives for societal ills."). An excellent illustration of this strain in the Rehnquist Court's jurisprudence has been its decisions involving the constitutional rights of prisoners. In a series of rulings, the Court has reiterated that prison regulations are constitutional so long as they are reasonably related to legitimate penological objectives, even when the regulations substantially encroach on inmates' fundamental rights. See, e.g., Washington v. Harper, 494 U.S. 210 (1990) (upholding state policy that permitted corrections officials to administer antipsychotic drugs to inmates against their will without prior hearings); Thornburgh v. Abbott, 490 U.S. 401 (1989) (upholding Federal Bureau of Prisons regulation permitting wardens to screen magazines sent to inmates and to reject those detrimental to security or discipline); O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (upholding prison regulations that prevented Muslim inmates from attending particular congregational service); Turner v. Safley, 482 U.S. 78 (1987) (upholding regulations that restricted correspondence between inmates at different institutions to that between family members and that concerning legal matters unless correspondence was in "best interests" of inmates). In so holding, the Court has emphasized that it generally is not the judiciary's place to stand in judgment of how prison administrators carry out their duties. See Harper, 494 U.S. at 224; O'Lone, 482 U.S. at 350; Safley, 482 U.S. at 89. For instance, the Court stated in Abbott that, "[a]cknowledging the expertise of [prison] officials and that the judiciary is 'ill equipped' to deal with the difficult and delicate problems of prison management, this Court has afforded considerable deference to the determinations of prison administrators." Abbott, 490 U.S. at 407-08. And in O'Lone the Court pronounced: "We take this opportunity to reaffirm our refusal, even where claims are made under the First Amendment, to 'substitute our judgment on . . . difficult and sensitive matters of institutional administration' for the determinations of those charged with the formidable task of running a prison." O'Lone, 482 U.S. at 353 (citation omitted) (quoting Block v. Rutherford, 468 U.S. 576, 588 (1984)); see also id. at 350 (emphasizing "the respect and deference that the United States Constitution allows for the judgment of prison administrators").
113. See Missouri v. Jenkins, 115 S. Ct. 2038, 2070 (1995) (Thomas, J., concurring).
114. See id. ("When [federal courts] presume to have the institutional ability to set effective educational, budgetary, or administrative policy, [they] transform the least dangerous branch into the most dangerous one.").
115. 2 D.W. Meinig, The Shaping of America: A Geographical Perspective on 500 Years of History 453 (1993). Under the terms of the Missouri Compromise, Missouri entered the Union as a slave state while (I) Maine simultaneously entered the union as a free state, and (2) the latitude of Missouri's southern border - 36°30′ North - was set as the northern limit of slavery in the remaining western territories. Id. As Justice Ginsburg pointed out in her dissent, racial segregation in Missouri actually is traceable to 1724, when Louis XV of France issued the Code Noir, a slave code for the Colony of Louisiana, which at that time encompassed Missouri. Missouri v. Jenkins, 115 S. Ct. 2038, 2091 (1995) (Ginsburg, J., dissenting).
116. Act of Feb. 16, 1847, § 1, 1847 Mo. Laws 103 ("No person shall keep or teach any school for the instruction of negroes or mulattos, in reading or writing, in this State.").
117. Mo. Const. art. IX, § 2 (1865); see also Liddell v. Missouri, 731 F.2d 1294, 1305 (8th Cir.) (en bane), cert. denied, 469 U.S. 816 (1984).
118. See, e.g., Act of Mar. 29, 1866, § 20, 1865 Mo. Laws 177.
119. Jenkins v. Missouri, 593 F. Supp. 1485, 1490 (W.D. Mo. 1984).
120. Id.
121. School Dist. v. Missouri, 460 F. Supp. 421, 427 (W.D. Mo. 1978). The Kansas-Missouri border forms the western boundary of the KCMSD, so many of the surrounding school districts are in Kansas. The three federal agencies involved in the litigation were HEW, the Department of Housing and Urban Development (HUD), and the Department of Transportation (DOT).
122. Id. at 427-28.
123. Id. at 442, 445.
124. See, e.g., Missouri v. Jenkins, 115 S. Ct. 2038, 2044 (1995); Jenkins, 593 F. Supp. at 1487.
125. Jenkins, 593 F. Supp. at 1488-89.
126. Between Brown I and the trial on liability, the racial composition of the KCMSD changed dramatically. In the 1954-55 school year, 18.9% of the district's students were African-American. Jenkins, 593 F. Supp. at 1492. In the 1984-85 school year, 68.3% of KCMSD students were black, and white enrollment had dwindled to 26.7%. Jenkins v. Missouri, 639 F. Supp. 19, 36 (W.D. Mo. 1985), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987). The remaining enrollment was comprised of Hispanic students (3.7%) and other minority groups (1.3%). Id.
127. Jenkins, 593 F. Supp. at 1488; see also id. at 1490 ("[N]o interdistrict constitutional violation by any suburban school district was shown.").
128. Id. at 1488, 1506. The district court dismissed plaintiffs' claims against HEW and DOT at the conclusion of the plaintiffs' presentation of evidence. Id. at 1488. Plaintiffs' claim against HUD went to trial, after which the court found HUD was not liable. Id. at 1506.
129. Id. at 1506.
130. Id. at 1501-04.
131. Id. at 1490.
132. Id. at 1493.
133. Id. at 1504.
134. Id. at 1505.
135. Cf. Green v. County Sch. Bd., 391 U.S. 430, 435 (1968) (involving school district where "[r]acial identification of the system's schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations - faculty, staff, transportation, extracurricular activities and facilities").
136. Jenkins v. Missouri, 639 F. Supp. 19, 24 (W.D. Mo. 1985) (emphasis omitted), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987). In its original remedial order, the court did not elaborate as to exactly how de jure segregation had had this effect; rather, it cited the expert testimony of Drs. Daniel Levine and Eugene Eubanks, and then enumerated the indications that student achievement in the KCMSD was well below national norms. Id. at 24-25. In its initial liability finding, however, the court described how segregation had caused lower student achievement in Kansas City: [F]orced segregation ruins attitudes and is inherently unequal: "[Segregation] may affect their hearts and minds in a way unlikely ever to be undone." The general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and causes poverty. While it may be true that poverty results in low achievement regardless of race, it is undeniable that most poverty-level families are black. . . . The Court finds the inferior education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri School District. Jenkins, 593 F. Supp. at 1492 (citations omitted) (quoting Brown v. Board of Educ., 347 U.S. 483, 494 (1954) (Brown I)).
137. Jenkins, 639 F. Supp. at 24. The court specifically found that "[t]est results from the Iowa Test of Basic Skills in grades 1 through 6 show that there are only a few elementary schools of the 50 in the KCMSD which are presently performing at or above the national norm in reading and mathematics. This is especially true in regard to the basic skill of reading." Id.
138. Jenkins, 593 F. Supp. at 1492; see also Jenkins, 639 F. Supp. at 28 (stating that "education process ha[d] been further 'bogged down' in the KCMSD by a history of segregated education").
139. Missouri v. Jenkins, 115 S. Ct. 2038, 2084 (1995) (Souter, J., dissenting) (quoting Jenkins v. Missouri, 855 F.2d 1295, 1302 (8th Cir. 1988)).
140. Jenkins, 639 F. Supp. at 24. As discussed in detail infra, the question of whether segregation in KCMSD caused white students to leave the district, and therefore whether attracting and maintaining nonminority enrollment was a permissible objective for the district court's remedy, was the primary issue addressed by the Supreme Court in Jenkins. See Jenkins, 115 S. Ct. at 2048-55. These questions are addressed later. See infra notes 236-293 and accompanying text.
141. 433 U.S. 267 (1977); see also Betsy Levin, School Desegregation Remedies and the Role of Social Science Research, Law & Contemp. Probs., Autumn 1978, at 1, 30-35.
142. Milliken II, 433 U.S. at 274-77; see also id. at 282 ("These specific educational remedies, although normally left to the discretion of the elected school board and professional educators, were deemed necessary to restore the victims of discriminatory conduct to the position they would have enjoyed in terms of education had these four components been provided in a nondiscriminatory manner in a school system free from pervasive de jure racial segregation.").
143. Id. at 283.
144. Id. The Court further observed: Children who have been thus educationally and culturally set apart from the larger community will inevitably acquire habits of speech, conduct, and attitudes reflecting their cultural isolation. They are likely to acquire speech habits, for example, which vary from the environment in which they must ultimately function and compete, if they are to enter and be a part of that community. . . . Pupil assignment alone does not automatically remedy the impact of previous, unlawful educational isolation; the consequences linger and can be dealt with only by independent measures. . . . The root condition shown by this record must be treated directly by special training at the hands of teachers prepared for that task. Id. at 287-88.
145. Jenkins v. Missouri, 639 F. Supp. 19, 26-28 (W.D. Mo. 1985), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987).
146. Id. at 28-33.
147. Id. at 33-35, 39-41 (ordering effective schools and magnet school plan); Jenkins v. Missouri, 855 F.2d 1295, 1306 (8th Cir. 1988) (referring to $200 to $300 million capital improvement plan), cert. denied, 490 U.S. 1034 (1989).
148. See Jenkins v. Missouri, 807 F.2d 657, 660 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987).
149. Id. at 660-61.
150. Id. at 684.
151. Jenkins v. Missouri, 484 U.S. 816 (1987); Kansas City, Mo. Sch. Dist. v. Missouri, 484 U.S. 816 (1987).
152. Jenkins v. Missouri, 672 F. Supp. 400, 410 (W.D. Mo. 1987), aff'd in part and rev'd in part, 855 F.2d 1295 (8th Cir. 1988), cert. denied, 490 U.S. 1034 (1989). During that same year, the KCMSD sought approval from the district court for its long-range capital improvement plan. The plan called for the renovation and construction of approximately 72 schools at a cost of $265 million. Id. at 403. The State opposed the school district's motion and instead proposed a capital improvement plan costing roughly $million. Id.
153. Id. at 403.
154. Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988), cert. denied, 490 U.S. 1034 (1989).
155. See Missouri v. Jenkins, 495 U.S. 33 (1990). The Supreme Court's previous decision in the Jenkins litigation concerned a tax increase necessary for the KCMSD to pay its share of the costs of the desegregation plan. After the district court had ordered many of the compensatory remedies comprised by the desegregation plan, it became clear that the KCMSD, due to state laws that restricted local governments' ability to raise property taxes, would not be able to meet its obligation to fund 25% of plan's costs. Id. at 41. The district court therefore ordered an increase in the ad valorem property tax rate within the KCMSD from $2.05 to $4.00 per $100 valuation. Id. The Supreme Court held that the district court's direct imposition of a tax increase violated the principles of federal-state comity, and therefore constituted an abuse of discretion. Id. at 51-53. Nonetheless, the Court upheld the order as modified by the Eighth Circuit, which held that the district court could enjoin the Missouri laws that were preventing the KCMSD from being able to raise the necessary funds. Id. at 53-59. The school district therefore was able to impose the tax increase itself. Id.
156. Jenkins v. Missouri, No. 77-0420-CV-W-4, 1992 WL 551568, at *1 (W.D. Mo. June 25, 1992), aff'd, 11 F.3d 755 (8th Cir. 1993), rev'd, 115 S. Ct. 2038 (1995).
157. Id.
158. Id. at *2.
159. Id. at *4.
160. Id. at *9.
161. Id. at *8.
162. See Jenkins v. Missouri, 11 F.3d 755, 760 (8th Cir. 1993), rev'd, 115 S. Ct. 2038 (1995).
163. See supra note 73.
164. 503 U.S. 467 (1992).
165. See Jenkins, 11 F.3d at 760.
166. Jenkins, 1992 WL 551569; see also Jenkins, 11 F.3d at 760 (noting that district court rejected State's Freeman arguments "without comment").
167. Jenkins, 1992 WL 551569, at *3.
168. Jenkins, 11 F.3d 755.
169. Id. at 767.
170. Id. at 768.
171. Id. at 760 ("In granting the funding, it is evident that the district court rejected the State's arguments.").
172. See id. at 761-63.
173. Id. at 761-62.
174. Jenkins v. Missouri, 19 F.3d 393 (8th Cir. 1994) (denial of rehearing en banc), rev'd, 115 S. Ct. 2038 (1995).
175. Missouri v. Jenkins, 115 S. Ct. 2038, 2056 (1995).
176. Milliken v. Bradley, 433 U.S. 267, 280 (1977) (Milliken II).
177. Jenkins, 115 S. Ct. at 2049 (quoting Milliken II, 433 U.S. at 282).
178. Id.
179. 418 U.S. 717 (1974).
180. Id. at 745.
181. Jenkins, 115 S. Ct. at 2050 (citations omitted).
182. Id.
183. Id. at 2051 (calling order's "purpose [of] attract[ing] nonminority students from outside the KCMSD schools" an "interdistrict goal").
184. Id. ("[T]his interdistrict goal is beyond the scope of the intradistrict violation identified by the District Court.").
185. Id.
186. See id. at 2050, 2054-55.
187. Id. at 2054.
188. Id. ("This case provides numerous examples demonstrating the limitless authority of the District Court operating under this rationale."); see also Missouri v. Jenkins, 495 U.S. 33, 76 (1990) (Kennedy, J., concurring) (contending that district court has used desegregative attractiveness "as the hook on which to hang numerous policy choices about improving the quality of education in general within the KCMSD").
189. Jenkins, 115 S. Ct. at 2054 (noting that per pupil expenditures excluding capital costs in surrounding suburban districts ranged from $2854 to $5956, whereas KCMSD spent $7665.18 per student).
190. Id. (citation omitted).
191. Id. at 2055.
192. See id.
193. Id.
194. Id. at 2056.
195. Id.
196. Id.
197. See, e.g., Matt Campbell, Parents Range from Fearful to Hopeful in Assessing Decision, K.C. Star, June 14, 1995, at A10;
198. Lynn Horsley, District Feels Bite of Ruling: State Withholds Funds, but Employees Get Paid, K.C. Star, June 16, 1995, at A1;
199. Lynn Horsley et al., Many Issues Remain, K.C. Star, June 13, 1995, at A1 (reporting disappointment of two KCMSD school board members and of Mayor of Kansas City, Emmanual Cleaver, who said that Court's decision "touche[d] on quality of life, residential retention and economic development of Kansas City as a whole, and so I am very concerned").
200. See supra note 2.
201. See Jenkins v. Missouri, 19 F.3d 393, 397 (8th Cir. 1994) (denial of rehearing en banc) (Beam, J., dissenting) ("Some observers have described it as the most ambitious and expensive remedial program in the history of school desegregation."), rev'd, 115 S. Ct. 2038 (1995); Theodore M. Shaw, Missouri v. Jenkins: Are We Really a Desegregated Society?, 61 Fordham L. Rev. 57, 59 (1992) ("[I]n Kansas City we have seen the most extensive and expensive 'desegregation' remedy ever ordered by any court.").
202. Dennis Farney, Fading Dream? Integration Is Faltering in Kansas City Schools as Priorities Change, Wall St. J., Sept. 26, 1995, at A1 (putting figure at $1.2 billion);
203. Linda Greenhouse, Justices Say Making State Pay in Desegregation Case Was Error, N.Y. Times, June 13, 1995, at A1 (reporting costs of desegregation plan as $1.5 billion);
204. James S. Kunen, The End of Integration: A Four-Decade Effort is Being Abandoned as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," Time, Apr. 29, 1996, at 39, 41 (reporting cost as $1.7 billion).
205. Missouri v. Jenkins, 115 S. Ct 2038, 2044-45 (1995); see also Kunen, supra, note 178, at 41.
206. Jenkins, 115 S. Ct. at 2045.
207. For instance, the district has suspended its program of providing free transportation for students attending KCMSD magnet schools who reside outside the district and has stated that it may have to charge such students tuition beginning in the 1996-97 school year. Donna McGuire, Schools See Loss from Suburbs: Desegregation Ruling's Fallout Begins to Settle on the KC Magnet Program, K.C. Star, Aug. 23, 1995, at A1. As a result, roughly 40% of the 1580 suburban students who had planned to attend KCMSD magnet schools for the 1995-96 school year have withdrawn from the program. Id.
208. See, e.g., Farney, supra note 178, at A6 (reporting that "[t]est scores show that Kansas City students generally meet or exceed national test-score averages in grades kindergarten through three, begin tailing off in middle school and slip badly in high school").
209. See, e.g., Freeman v. Pitts, 503 U.S. 467, 480-84 (1992) (discussing racial imbalances in school district's student assignments, faculty and staff assignments, and quality of education).
210. See Milliken v. Bradley, 418 U.S. 717, 744-45 (1974) (Milliken I) ("[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.").
211. See, e.g., Milliken v. Bradley, 433 U.S. 267, 281-82 (1977) (Milliken II) ("The well-settled principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself.").
212. See supra notes 153-68 and accompanying text.
213. See Missouri v. Jenkins, 115 S. Ct. 2038, 2052 (1995).
214. Id. at 2051.
215. Id. at 2054 ("It is certainly theoretically possible that the greater the expenditure per pupil within the KCMSD, the more likely it is that some unknowable number of nonminority students not presently attending schools in the KCMSD will choose to enroll in those schools.").
216. See id. at 2048-53.
217. Milliken v. Bradley, 418 U.S. 717, 727 (1974) (Milliken I).
218. Id. at 721-22.
219. Bradley v. Milliken, 338 F. Supp. 582, 586 (E.D. Mich. 1971), aff'd, 484 F.2d 215 (6th Cir. 1973), rev'd, 418 U.S. 717 (1974). The percentage had grown to 69.8 by 1973. Wilkinson, supra note 13, at 219.
220. Drew S. Days III, School Desegregation Law in the 1980's: Why Isn't Anybody Laughing, 95 Yale L.J. 1737, 1752 (1986) (book review).
221. Milliken I, 418 U.S. at 739 (quoting earlier order of the district court).
222. Id. at 733-34.
223. Id. at 733-36; see also Wilkinson, supra note 13, at 221 (noting that, under district court's desegregation plan in Milliken, "the racial composition of the schools throughout the new district would supposedly be similar").
224. Milliken I, 418 U.S. at 729-30.
225. Id. at 745.
226. Id. at 741.
227. Id. at 741-47.
228. Id. at 743. The Court listed specifically several of the questions raised by the district court's remedy that it found most troubling: What would be the status and authority of the present popularly elected school boards? Would the children of Detroit be within the jurisdiction and operating control of a school board elected by the parents and residents of other districts? What board or boards would levy taxes for school operations in these 54 districts constituting the consolidated metropolitan area? What provisions could be made for assuring
229. Id. at 743-44.
230. Id. at 744.
231. 425 U.S. 284 (1976).
232. Id. at 296.
233. Id. at 298 n. 14.
234. Id. at 298.
235. Id. at 296.
236. Id. at 298. As Justice Souter contended in his dissent, the Court's holding in Jenkins effectively overruled Gautreaux. See Missouri v. Jenkins, 115 S. Ct. 2038, 2088-91 (1995) (Souter, J., dissenting). But see id. at 2053-54 (stating that Court's decision did not overrule Gautreaux); id. at 2057-59 (O'Connor, J., concurring) (same).
237. For a similar criticism, see Raïna E. Brubaker, Comment, Missouri v. Jenkins: Widening the Mistakes of Milliken v. Bradley, 46 Case W. Res. L. Rev. 579, 590-96 (1996).
238. See Gewirtz, Choice in the Transition, supra note 47, at 780 (contending that "[t]he point of Milliken I 'is not that a within-Detroit remedy would fully eliminate effects of the violation, but rather that an interdistrict remedy that would clearly have been more effective was thought to impose costs that were too great' - that is, it would excessively interfere with local autonomy")
239. (quoting Paul Gewirtz, Remedies and Resistance, 92 Yale L.J. 585, 647 (1983) [hereinafter Remedies and Resistance])).
240. Justice Souter observed in his dissent that the salary relief order was not "an interdistrict remedy in the sense that Milliken I used the term." Jenkins, 115 S. Ct. at 2087 (Souter, J., dissenting). Paul Gewirtz has similarly noted that: [O]rdering an interdistrict transfer plan simply does not infringe on the interests of local autonomy that were Milliken I's concern. The very individualistic and nonsystemic features of a choice mechanism which make it somewhat troublesome in terms of vindicating victims' rights make it untroublesome as a threat to the "local autonomy" values identified in Milliken I. Gewirtz, Choice in the Transition, supra note 47, at 781; see also id. at 780 ("Milliken I reflects the Court's unease with coercive and disruptive busing-and-consolidation remedies. But an interdistrict transfer provision, which relies on the voluntary choices of individuals, has an altogether different character.").
241. Jenkins, 115 S. Ct. at 2052.
242. See Jenkins v. Missouri, 11 F.3d 755, 766 (8th Cir. 1993), rev'd, 115 S. Ct. 2038 (1995).
243. Jenkins v. Missouri, No. 77-0420-CV-W-4, 1992 WL 551568, at *9 (W.D. Mo. June 25, 1992), aff'd, 11 F.3d 755 (8th Cir. 1993), rev'd, 115 S. Ct. 2038 (1995).
244. See Jenkins v. Missouri, 672 F. Supp. 400, 410-13 (W.D. Mo. 1987), aff'd in part and rev'd in part, 855 F.2d 1295 (8th Cir. 1988), cert. denied, 490 U.S. 1034 (1989).
245. Id. at 410.
246. Jenkins v. Missouri, 639 F. Supp. 19, 24 (W.D. Mo. 1985), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987). Plaintiffs sought additional salary increases in 1990. Jenkins, 11 F.3d at 766. The district court held hearings lasting several days, after which the two parties reached a settlement. Id. The salary increases were to be paid equally by the State and the KCMSD, with the settlement specifically providing that joint and several liability did not apply. Id.
247. Jenkins v. Missouri, No. 77-0420-CV-W-4, 1992 WL 551569, at *1 (W.D. Mo. June 17, 1992), aff'd, 11 F.3d 755 (8th Cir. 1993), rev'd, 115 S. Ct. 2038 (1995).
248. Id. at *9.
249. Id. at *8.
250. Id.
251. Id. at *9; see also id. at *7 ("There is no question but that a salary roll back would have effects that would drastically impair implementation of the desegregation remedy.").
252. Id. at *6.
253. Jenkins v. Missouri, 11 F.3d 755, 766 (8th Cir. 1993), rev'd, 115 S. Ct. 2038 (1995).
254. Id. at 767.
255. Id.
256. As phrased in the State's petition for certiorari, the question presented was whether the order "directly address[ed] and relate[ed] to the constitutional violation and [was] tailored to cure the condition that offends the Constitution." See Missouri v. Jenkins, 115 S. Ct. 2038, 2076 (1995) (Souter, J., dissenting). Indeed, Chief Justice Rehnquist wrote in the majority opinion that the Court had "granted certiorari to consider . . . whether the District Court exceeded its constitutional authority when it granted salary increases to virtually all instructional and noninstructional employees of the KCMSD." Id. at 2046.
257. This is most evident in the two sentences composing the concluding paragraph of the Court's analysis of the salary relief order. In the first sentence, the Court stated that the district court's effort to promote desegregative attractiveness "results in so many imponderables and is so far removed from the task of eliminating the racial identifiability of the schools within the KCMSD that we believe it is beyond the admittedly broad discretion of the District Court." Jenkins, 115 S. Ct. at 2055. In the next sentence, the Court jumped to invalidating the salary assistance order without any reference to the district court's additional justification: "In this posture, we conclude that the District Court's order of salary increases, which was grounded in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD, is simply too far removed from an acceptable implementation of a permissible means to remedy previous legally mandated segregation." Id. (internal quotation marks omitted).
258. See, e.g., Mills v. Rogers, 457 U.S. 291, 305 (1982) (stating Court's "settled policy to avoid unnecessary decisions of constitutional issues"); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 294 (1982) (recognizing "Court's policy of avoiding the unnecessary adjudication of federal constitutional questions"); FCC v. Pacifica Found., 438 U.S. 726, 734 (1978) (noting that it is Court's "settled practice to avoid the unnecessary decision of [constitutional questions]"); Kremens v. Bartley, 431 U.S. 119, 136 (1977) (recognizing Court's "long-established rule" not to "'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied'") (quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885)); Culombe v. Connecticut, 367 U.S. 568, 635-36 (1961) (Warren, C.J., concurring) ("It has not been the custom of the Court, in deciding the cases which come before it, to write lengthy and abstract dissertations upon questions which are neither presented by the record nor necessary to a proper disposition of the issues raised."). As the Court itself has recognized, "this self-imposed limitation on the exercise of [the] Court's jurisdiction has an importance to the institution that transcends the significance of particular controversies." City of Mesquite, 455 U.S. at 294.
259. See Jenkins v. Missouri, 639 F. Supp. 19, 26-41 (W.D. Mo. 1985), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987).
260. See id. at 34-35 (ordering KCMSD to "conduct extensive surveys within the KCMSD and . throughout the Kansas City, Missouri metropolitan area in order to determine what magnet themes appear to be most likely to attract non-minority enrollment").
261. Id. at 40 ("The improvement of school facilities is an important factor in the overall success of this desegregation plan. Specifically, a school facility which presents safety and health hazards to its students and faculty serves both as an obstacle to education as well as to maintaining and attracting nonminority enrollment.").
262. Missouri v. Jenkins, 115 S. Ct. 2038, 2043-44 (1995). In fact, Justice O'Connor noted in her concurrence that other remedial programs ordered by the district court "may also be improper to the extent that they serve the same goals of desegregative attractiveness and suburban comparability." Id. at 2061 (O'Connor, J., concurring).
263. See id. at 2060 (O'Connor, J., concurring) ("[W]here a purely intradistrict violation has caused a significant interdistrict segregative effect, certain interdistrict remedies may be appropriate.").
264. Milliken v. Bradley, 418 U.S. 717, 745 (1974) (Milliken I).
265. See, e.g., Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404 (8th Cir. 1985), cert. denied, 476 U.S. 1186 (1986); Liddell v. Missouri, 731 F.2d 1294 (8th Cir.) (approving consent decree that contained interdistrict transfer provision), cert. denied, 469 U.S. 816 (1984); United States v. Board of Sch. Comm'rs, 637 F.2d 1101, 1104 (7th Cir.) (approving interdistrict student assignment plan in Indianapolis because district court found that "official action, taken with a discriminatory purpose, was a substantial cause of interdistrict segregation"), cert. denied, 449 U.S. 838 (1980); Morrilton Sch. Dist. No. 32 v. United States, 606 F.2d 222 (8th Cir. 1979), cert. denied, 444 U.S. 1071 (1980); United States v. Missouri, 515 F.2d 1365 (8th Cir. 1975); Hoots v. Pennsylvania, 510 F. Supp. 615, 619 (W.D. Pa.) (holding that interdistrict remedy was appropriate because "racially discriminatory acts of the state ha[d] been a substantial cause of interdistrict segregation"), cert. denied, 452 U.S. 963 (1981); Evans v. Buchanan, 447 F. Supp. 982 (D. Del.), aff'd, 582 F.2d 750 (3d Cir. 1978), cert. denied, 446 U.S. 923 (1980). But cf. Days, supra note 194, at 1753 (contending that, after Milliken I, interdistrict remedies are likely possible only in school districts in southern and border states, where de jure segregation was pervasive and cut across district lines).
266. See infra notes 248-76 and accompanying text.
267. Jenkins, 115 S. Ct. at 2052.
268. See supra notes 113-16a nd accompanying text.
269. Jenkins, 115 S. Ct. at 2084 (Souter, J., dissenting) (quoting Jenkins v. Missouri, 855 F.2d 1295, 1302 (8th Cir. 1988)).
270. In August 1988, on direct appeal from the district court's initial remedial order, the court of appeals expressly approved the district court's conclusion that segregation in the KCMSD had "caused it to lose significant numbers of its white students and that regaining those students [was] a necessary part of restoring the victims to the condition they would have enjoyed had there been no constitutional violation." Jenkins v. Missouri, 855 F.2d 1295, 1303 (8th Cir. 1988), aff'd in part and rev'd in part, 495 U.S. 33 (1990). The court of appeals also noted that "the preponderance of black students in the district was due to the State and KCMSD's constitutional violations," and that "the existence of segregated schools led to white flight from the KCMSD to suburban districts and to private schools." Id. at 1302. Three years later, in August 1991, the Eighth Circuit again approved the district court's factual determination concerning white flight. Jenkins v. Missouri, 942 F.2d 487, 492 (8th Cir.), cert. denied, 502 U.S. 967 (1991). The State had appealed a district court order approving a contingency plan that had modified the KCMSD's admissions policy for its magnet schools. Id. at 488. The district court's white flight finding was material to the dispute because, like the salary relief order, the court had approved the magnet school program partly for purposes of "establishing an environment designed to maintain and attract non-minority enrollment." Jenkins, 855 F.2d at 1301-02. Addressing the State's argument against the magnet school admissions order, the court of appeals reiterated that it had previously "pointed to district court findings . . . that segregation in KCMSD had caused the departure of whites in the system to private and suburban schools." Jenkins, 942 F.2d at 491. The court of appeals accordingly affirmed the district court's order, concluding that it saw "no abuse of discretion in the orders entered in this case, no legal error, and insofar as the findings are based upon findings of fact, no findings of fact that are clearly erroneous." Id. at 492. Finally, in its 1993 decision subsequently reversed by the Supreme Court, the court of appeals again affirmed the white flight finding. Jenkins v. Missouri, 11 F.3d 755, 768 (8th Cir. 1993), rev'd, 115 S. Ct. 2038 (1995). It restated that the vestiges of the unconstitutional dual school system identified by the district court were "reduced student achievement and white flight, resulting in the anomaly of a racially isolated school district in the midst of a population with a far different racial makeup." Id. at 764. On these grounds, the district court had approved continued salary assistance both "to improve the educational lot of the victims of unconstitutional segregation" and "to regain some portion of the white students who have fled the District." Id. at 767. The Eighth Circuit concluded that "[t]here was substantial evidence to support the district court's findings." Id. at 768.
271. Specifically, the court stated that the State had made "no claim that the findings of fact of the district court are clearly erroneous." Jenkins, 11 F.3d at 767.
272. After a three-judge panel affirmed the salary assistance order in 1993, an equally divided en banc Eighth Circuit denied rehearing of the State's challenge. Jenkins v. Missouri, 19 F.3d 393 (8th Cir. 1994) (denial of rehearing en banc), rev'd, 115 S. Ct. 2038 (1995). Judge Beam, joined by the four other judges, dissented from the denial of rehearing. Id. at 396-404 (Beam, J., dissenting). Although Judge Beam contended that the salary order should have been overturned, he nonetheless cited the district court's white flight determination with approval: "'White flight'[from the KCMSD] to private schools and to the suburbs was rampant," and "[t]he district court[] correctly recogniz[ed] that at least part of this problem was the consequence of the de jure segregation previously practiced under Missouri constitutional and statutory law." Id. at 397.
273. Jenkins, 115 S. Ct. at 2052 (recognizing "the District Court's statement that segregation has 'led to white flight from the KCMSD to suburban districts'").
274. Id. at 2063 (Thomas, J., concurring) (acknowledging that "the District Court indicated that post-1954 'white flight' was another vestige of the pre-1954 segregated system").
275. See Inwood Lab., Inc. v. Ives Lab., Inc., 456 U.S. 844, 856 (1982).
276. Fed. R. Civ. P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."); see also Jenkins v. Missouri, 855 F.2d 1295, 1300 (8th Cir. 1988) ("We have also recognized the importance of the district court's factual findings, which may not be disturbed unless clearly erroneous."), cert. denied, 490 U.S. 1034 (1989).
277. The Supreme Court has emphasized that the "clearly erroneous" standard is quite deferential. It means that an appellate court cannot disturb a district court's factual determination unless the court "is left with the definite and firm conviction that a mistake has been made." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). That is, "[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the [appellate court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985); see also Amadeo v. Zant, 486 U.S. 214, 223 (1988) (quoting same). Where "there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson, 470 U.S. at 574.
278. Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 275 (1985).
279. The two court rule is a norm of self-restraint created by the Court itself to manage its own procedure. Monaghan, supra, at 275. And although the Court's invocation of the two court rule has been intermittent and its statements about its exact content somewhat vague, see Kevin M. Clermont, Procedure's Magical Number Three: Psychological Bases for Standards of Decision, 72 Cornell L. Rev. 1115, 1132 (1987), the rule has maintained its vitality. See Jenkins, 115 S. Ct. at 2084 (Souter, J., dissenting) (describing two court rule as an "accepted norm of [the Court's] appellate procedure"). For instance, the Court stated as recently as 1984 that its "usual practice" is to "accord great weight to a finding of fact which has been made by a district court and approved by a court of appeals." NCAA v. Board of Regents, 468 U.S. 85, 98 n.15 (1984). And the Court stated four years earlier in Branti v. Finkel, 445 U.S. 507 (1980), that it is the Court's "settled practice [to] accept[], absent the most exceptional circumstances, factual determinations in which the district court and the court of appeals have concurred." Id. at 512 n.6; see also Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 317 n.5 (1985) (stating that Court "has frequently noted its reluctance to disturb findings of fact concurred in by two lower courts") (quoting Rogers v. Lodge, 458 U.S. 613, 623 (1982)); United States v. Doe, 465 U.S. 605, 614 (1984) (explaining that "[t]raditionally [the Court] ha[s] been reluctant to disturb findings of fact in which two courts below have concurred"). Reasons of institutional mission and division of labor between the three tiers of the federal courts counsel the Supreme Court to be even more reluctant than a court of appeals to reject a district court's factual finding. The purpose of the Supreme Court, at least under the modern regime of discretionary review, is to decide annually close to one hundred of the most pressing legal controversies of the day. It emphatically is not to micromanage the factual determinations of the hundreds of federal district courts. In contrast, the courts of appeal have no discretion in the cases that they review. They therefore review every appeal claiming that a district court's finding of fact was clearly erroneous. When a court of appeals throws out an erroneous factual finding, it is fulfilling its mission as a backstop to review all alleged errors by a district court. But when the Supreme Court decides that a district court's factual finding was clearly erroneous, it expends scarce resources to decide issues with no precedential value. Moreover, if it comes to the Supreme Court after having been affirmed by the court of appeals, that finding has an additional guarantee of trustworthiness. The dissent raised these precise points in Kyles v. Whitley, 115 S. Ct. 1555, 1576-78 (1995) (Scalia, J., dissenting), an opinion signed by four of the justices in the Jenkins majority. See infra notes 255-63 and accompanying text.
280. In Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987), the Court stated that: The Court of Appeals did not set aside any of the District Court's findings of fact that are relevant to this case. That is the way the case comes to us, and both courts below having agreed on the facts, we are not inclined to examine the record for ourselves absent some extraordinary reason for undertaking this task. Id.
281. Branti, 445 U.S. at 512 n.6.
282. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949), aff'd in part on rehearing, 339 U.S. 605 (1950). In addition, Chief Justice Rehnquist, author of the majority opinion in Jenkins, has endorsed the two court rule on at least two occasions during his tenure on the Court. In United States v. Ceccolini, 435 U.S. 268 (1978), then-Justice Rehnquist invoked the Court's "traditional deference to the 'two court rule'" in upholding a district court's factual determination that government investigators would have inevitably discovered certain evidence found during an illegal search. Id. at 273. And in an important school desegregation case in 1974, Keyes v. School Dist. No. 1, 413 U.S. 189 (1973), he chastised the Court in his dissenting opinion for effectively circumventing the rule. As in Jenkins, a central question in Keyes concerned the causal relation between segregation in one area of the city and racial imbalances in schools across town, only in Keyes the respective schools were part of the same school district. Id. at 207-13. The Court held that, in all cases of de jure segregation, racial imbalances within a school district's boundaries are presumptively related to the constitutional violation; the Court therefore remanded the case to the district court for further factual findings. Id. at 210, 213-14. Justice Rehnquist contended that the majority had chosen to remand the case, instead of reversing, because of the obstacle of the two court rule: "[I]t would be contrary to settled principles for this Court to upset a factual finding sustained by the Court of Appeals. 'A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error.'" Id. at 264 (Rehnquist, J., dissenting) (quoting Comstock v. Group of Institutional Investors, 335 U.S. 211, 214 (1948)).
283. 115 S. Ct. 1555 (1995).
284. 373 U.S. 83 (1963).
285. Kyles, 115 S. Ct. at 1567-69.
286. See id. at 1576-78 (Scalia, J., dissenting).
287. Id. at 1576.
288. See id. at 1576-77.
289. Id. at 1577.
290. See id.
291. Id.
292. 443 U.S. 449 (1979).
293. Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 260 (S.D. Ohio 1977), aff'd, 583 F.2d 787 (6th Cir. 1978), aff'd in part, 443 U.S. 449 (1979).
294. Columbus, 443 U.S. at 489-525 (Rehnquist, J., dissenting).
295. Id. at 457 n.6.
296. Id. (citation omitted).
297. 443 U.S. 526 (1979).
298. Id. at 534 n.8.
299. See, e.g., Keyes v. School Dist. No. 1, 895 F.2d 659, 667 (10th Cir. 1990), cert. denied, 498 U.S. 1082 (1991); Brown v. Board of Educ., 892 F.2d 851, 911 (10th Cir. 1989) (Baldock, J., dissenting), vacated, 503 U.S. 978 (1992); Diaz v. San Jose Unified Sch. Dist., 861 F.2d 591, 595 (9th Cir. 1988); Morgan v. Nucci, 831 F.2d 313, 331 (1st Cir. 1987); Jenkins v. Missouri, 807 F.2d 657, 667 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404, 411 (8th Cir. 1985) (en banc), cert. denied, 476 U.S. 1186 (1986); Diaz v. San Jose Unified Sch. Dist., 733 F.2d 660, 675 (9th Cir. 1984) (en banc) (Choy, J., dissenting), cert. denied, 471 U.S. 1065 (1985); Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 796 (6th Cir. 1982); United States v. Board of Sch. Comm'rs, 637 F.2d 1101, 1118 n.7 (7th Cir.) (Tone, J., dissenting), cert. denied, 449 U.S. 838 (1980); Reed v. Rhodes, 741 F. Supp. 1295, 1296 (N.D. Ohio 1990); Reed v. Rhodes, 500 F. Supp. 363, 367 (N.D. Ohio 1980), aff'd in part and rev'd in part, 635 F.2d 556 (6th Cir. 1980).
300. Columbus, 443 U.S. at 470 (Stewart, J., concurring in judgment and dissenting in Dayton, 443 U.S. 526).
301. Id.
302. Id. at 471.
303. Id.
304. Cf. The Supreme Court. 1991 Term - Leading Cases, 106 Harv. L. Rev. 163, 258 (1992) [hereinafter The Supreme Court, 1991 Term] (noting that, in school desegregation cases, "appellate courts have . . . deferred to district court factual findings, . . . and some have suggested that appellate courts should be more hesitant than usual in upsetting district court determinations"). For instance, the Fourth Circuit has acknowledged that "[t]he Supreme Court has said that appellate courts should give great deference to the district court's findings in school desegregation cases," Goldsboro City Bd. of Educ. v. Wayne County Bd. of Educ., 745 F.2d 324, 327 (4th Cir. 1984), and held that "[f]actual findings by a district court in school desegregation cases, especially where the presiding judge has lived with the case for many years, are entitled to great deference on review," Riddick v. School Bd., 784 F.2d 521, 533 (4th Cir.), cert. denied, 479 U.S. 938 (1986). The Sixth Circuit likewise has recognized "'the crucial role of the federal district courts in school desegregation cases,'" stating that the "argument in support of even greater deference to [factual] findings" in such cases is "persuasive." Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 796 (6th Cir. 1982) (quoting Columbus, 443 U.S. at 469 (Stewart, J., concurring in judgment and dissenting in Dayton, 443 U.S. 526)). And in Jenkins itself, the Eighth Circuit noted that "'[t]he Supreme Court has emphasized the importance of the clearly erroneous rule in civil rights cases and, more particularly, in school desegregation cases.'" Jenkins v. Missouri, 807 F.2d 657, 666-67 (8th Cir. 1986) (citation omitted) (quoting Little Rock Sch. Dist. v. Pulaski City Special Sch. Dist., 778 F.2d 404, 411 (8th Cir. 1985) (en banc), cert. denied, 476 U.S. 1186 (1986)), cert. denied, 484 U.S. 816 (1987).
305. Missouri v. Jenkins, 115 S. Ct. 2038, 2052 (1995) (footnote omitted). According to the Court, the finding was internally inconsistent because the district court, when dismissing the suburban school districts, had held that "this case involved no interdistrict constitutional violation that would support interdistrict relief." Id. at 2050. But the district court had made this finding as part of its holding that a mandatory interdistrict remedy akin to that condemned in Milliken I was inappropriate. See Jenkins v. Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984). The district court specifically had found that "Plaintiffs simply failed to show that those defendants had acted in a racially discriminatory manner that substantially caused racial segregation in another district." Id. at 1488. Thus, read in context, the district court's finding most likely meant that there were not sufficient interdistrict segregative effects - or discriminatory acts by suburban districts - to justify a mandatory interdistrict transfer plan. Moreover, to the extent that the district court's statement about interdistrict effects referred to by the Court was unclear, its subsequent (and more specific) white flight finding resolved this ambiguity. By stating that de jure segregation in the KCMSD had caused nonminority students to leave the school district, the district court was necessarily saying that there had been some interdistrict effects. Reading the two rulings together, the first statement is properly understood as concluding that there were not sufficient interdistrict effects to justify a mandatory multi-district remedy.
306. Jenkins v. Missouri, 807 F.2d 657, 662 (8th Cir. 1986) (en banc) ("Without an interdistrict violation and interdistrict effect, there is no constitutional wrong requiring an interdistrict remedy."), cert. denied, 484 U.S. 816 (1987); Jenkins v. Missouri, 593 F. Supp. 1485, 1488 (W.D. Mo. 1984) (citing Milliken I and stating that plaintiffs could not obtain interdistrict relief because they failed to show that suburban school districts "had acted in a racially discriminatory manner that substantially caused racial segregation in another district").
307. Jenkins v. Missouri, 855 F.2d 1295, 1299 (8th Cir. 1988) ("'[T]he nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation.'") (quoting Milliken v. Bradley, 433 U.S. 267, 280 (1977) (Milliken II)), cert. denied, 490 U.S. 1034 (1989); Jenkins v. Missouri, 639 F. Supp. 19, 23 (W.D. Mo. 1985) ("The basic remedial principle, repeatedly articulated by the courts in school desegregation cases, is that 'the scope of the remedy is determined by the nature and extent of the constitutional violation.'") (quoting Milliken v. Bradley, 418 U.S. 717, 744 (1974) (Milliken I)), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987).
308. Jenkins, 115 S. Ct. at 2052.
309. Id. at 2085 (Souter, J., dissenting) (explaining that "there is in fact no break in the chain of causation linking the effects of desegregation with those of segregation. There would be no desegregation orders and no remedial plans without prior unconstitutional segregation as the occasion for issuing and adopting them, and an adverse reaction to a desegregation order is traceable in fact to the segregation that is subject to the remedy."); Gewirtz, Remedies and Resistance, supra note 212, at 640 ("White flight itself is an effect of the original de jure segregation, and therefore segregated attendance patterns resulting from flight are an effect of the original violation.").
310. Gewirtz, Remedies and Resistance, supra note 212, at 640.
311. Cf. Gewirtz, Choice in the Transition, supra note 47, at 767 ("Courts cannot simply assume that [white] flight will be a significant and irreversible problem [for desegregation] in every school system; the likelihood and extent of flight depends upon the racial composition of the system, the particular design of the desegregation plan, and a range of setting-specific variables.").
312. See, e.g., Armor, supra note 80, at 180 ("The consensus at this point is that school desegregation contributes to white flight and that the flight can be quite large for some school systems, especially those systems that are larger, have higher minority concentrations, and have suburban or private school systems that can serve as alternatives for those who flee a desegregation plan or for new residents who want to avoid one."); James S. Coleman et al., Trends in School Segregation, 1968-1973 (1975) (concluding that court-ordered school desegregation was substantial cause of declining white enrollment in those school districts);
313. Gewirtz, Remedies and Resistance, supra note 212, at 629 ("While some research has questioned the extent to which flight occurs because of school desegregation . . . it is now widely agreed that school desegregation typically does accelerate white departures from the public school system above the 'normal' loss."). Mandatory student reassignment and busing are the factors most associated with white flight. See Armor, supra note 80, at 176-78;
314. Gewirtz, Remedies and Resistance, supra note 212, at 629 n.114;
315. Christine H. Rossell, The Convergence of Black and White Attitudes on School Desegregation Issues During the Four Decade Evolution of the Plans, 36 Wm. & Mary L. Rev. 613, 624-27 (1995).
316. See Jenkins v. Missouri, 639 F. Supp. 19, 38 (W.D. Mo. 1985), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484 U.S. 816 (1987).
317. Gary Orfield, Must We Bus? Segregated Schools and National Policy 100 (1978) (reviewing relevant research and concluding that "[d]esegregation . . . neither creates flight where there was none nor has a long-term impact on the rate of declining white enrollment");
318. Finis Welch & Audry Light, New Evidence on School Desegregation 66-67 (1987) (stating that researchers have discredited theory that "desegregation efforts might trigger such a large exodus of white students that racial isolation actually increases");
319. Philip A. Cusik, The Effects of School Desegregation and Other Factors on "White Flight" from an Urban Area, 15 Educ. Adm. Q. 35, 48 (1979) (studying desegregation in Pontiac, Michigan and concluding that whites' attitudes about busing "d[id] not even indirectly contribute to 'white flight");
320. Thomas F. Pettigrew & Robert L. Green, School Desegregation in Large Cities: A Critique of the Coleman "White Flight" Thesis, 46 Harv. Educ. Rev. 1, 49-53 (1976);
321. Christine H. Rossell, School Desegregation and White Flight, 90 Pol. Sci. Q. 675, 688 (1976) (finding that "school desegregation causes little or no significant white flight, even when it is court ordered and implemented in large cities.").
322. Willis D. Hawley et al., Strategies for Effective Desegregation: Lessons from Research 63 (1983) (reviewing several studies on relationship between school desegregation and white flight and concluding that "[t]he right kind of school desegregation plan can slow the process of racial change and encourage residential desegregation"). Likewise, Liebman states that: [After the second year of desegregation,] white loss normally drops off almost to pre-desegregation levels and in the case of certain kinds of plans appears to fall below pre-desegregation levels. Although the data are fragmentary, they create the possibility that, over the course of a decade or so, certain kinds of desegregation plans actually produce a net gain in the number of white children attending school in desegregated districts. Liebman, supra note 19, at 1622;
323. see also George K. Cunningham et al., The Impact of Court-Ordered Desegregation on Student Enrollment and Residential Patterns (White Flight), 160 J. Educ., May 1978, at 36, 44 (discussing study of Jefferson County, Kentucky, finding that "[b]ecause of the stabilizing effect on schools over a wide area, a metropolitan desegregation plan can have a positive effect by keeping neighborhoods from undergoing rapid changes in ethnic makeup");
324. Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, 80 Minn. L. Rev. 825, 831 (1996) (noting that "the most extensive desegregation plans, covering entire urbanized counties, have shown by far the highest levels of desegregation and have produced the nation's most stable districts in their percentage of white enrollment");
325. Christine H. Rossell, The Effect of School Integration on Community Integration, 160 J. Educ., May 1978, at 46, 59-60 (finding that school integration can lead to long term reductions in residential segregation).
326. See Frye Gaillard, The Dream Long Deferred 155-59 (1988) (describing stabilization of demographic shifts in Charlotte after metropolitan-wide school desegregation); Orfield, supra note 287; Brief Amici Curiae of the NAACP et al., at 7A, Freeman v. Pitts, 503 U.S. 467 (1992) (No. 89-1290) (including statement signed by 52 scientists summarizing research concerning effects of school desegregation); cf. Denis J. Lord & John C. Catu, School Desegregation Policy and lntra-School District Migration, 57 Soc. Sci. Q. 784, 794 (1977) (studying residential movement in Charlotte in two years immediately after implementation of desegregation remedies and finding that, although impact of desegregation could not be completely denied, "the temptation to view this as a cause and effect relationship should be tempered with caution because the stronger suburbanization trend may actually be indicative of a more active period of intra-urban residential mobility during the 1970s as well as of other factors not associated with school desegregation").
327. Gary Orfield, Segregated Housing and School Resegregation, in Gary Orfield et al., Dismanteling Desegregation: The Quiet Reversal of Brown v. Board of Education 291, 316-17 (1996).
328. H. Schmandt et al., Government, Politics, and the Public Schools: A Preliminary Study of Three Cities (1977)
329. (cited in Gary Orfield, Research. Politics, and the Antibusing Debate, Law & Contemp. Probs., Autumn 1978, at 141, 170 n.174).
330. Orfield, supra note 287, at 71.
331. Cass R. Sunstein, Three Civil Rights Fallacies, 79 Cal. L. Rev. 751, 763 (1991).
332. See supra note 73 and accompanying text.
333. Compare Green v. County Sch. Bd., 391 U.S. 430, 439 (1968) ("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.'"), with Freeman v. Pitts, 503 U.S. 467, 498 (1992) ("A history of good-faith compliance is evidence that any current racial imbalance is not the product of a new de jure violation, and enables the district court to accept the school board's representation that it has accepted the principle of racial equality and will not suffer intentional discrimination in the future.").
334. Green, 391 U.S. at 437-38 (holding that formerly segregated school districts are "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch").
335. Freeman, 503 U.S. at 489.
336. 498 U.S. 237 (1991).
337. 503 U.S. 467 (1992).
338. Dowell, 498 U.S. at 240-41.
339. Id. at 242.
340. Id.
341. Id.
342. Id. at 250.
343. Id. at 249.
344. Id.
345. Id. at 250.
346. See Dowell v. Board of Educ., 8 F.3d 1501 (10th Cir. 1993).
347. Freeman v. Pitts, 503 U.S. 467, 485 (1992).
348. Id. at 472-73.
349. Id. at 475.
350. Id. at 477.
351. Id. at 476; see also Joondeph, supra note 73, at 151-52.
352. Pitts v. Freeman, 887 F.2d 1438, 1443 (11th Cir. 1989), rev'd, 503 U.S. 467 (1992).
353. The "Green factors" (or "Green-type areas") are the primary facets of a school district's operations that the Supreme Court has directed lower courts to use in evaluating whether school systems have successfully desegregated and achieved unitary status. See Joondeph, supra note 73, at 152. The six traditional Green factors are student assignments, faculty assignments, staff assignments, transportation, extracurricular activities, and physical facilities. See Freeman, 503 U.S. at 486. They were born of the Court's opinion in Green v. County School Board, 391 U.S. 430 (1968), where the Court stated that the segregation of the school district "was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations - faculty, staff, transportation, extracurricular activities and facilities." Id. at 435.
354. Freeman, 503 U.S. at 474.
355. Id. at 484.
356. Pitts, 887 F.2d at 1446-47.
357. Id. at 1448-49.
358. Id. at 1450.
359. Freeman, 503 U.S. at 489.
360. Id. at 486.
361. Id. at 487.
362. Id. at 490.
363. Id.
364. Id. at 489.
365. See Pitts v. Freeman, 979 F.2d 1472, 1473 (11th Cir. 1992).
366. Joondeph, supra note 73, at 164.
367. Id.
368. Id. at 166-67.
369. Freeman v. Pitts, 503 U.S. 467, 487 (1992); see also id. ("That the term 'unitary' does not have fixed meaning or content is not inconsistent with the principles that control the exercise of equitable power.").
370. Id.
371. Missouri v. Jenkins, 115 S. Ct. 2038, 2052 (1995).
372. See supra text accompanying note 277.
373. Jenkins, 115 S. Ct. at 2052.
374. Board of Educ. v. Dowell, 498 U.S. 237, 247 (1991).
375. Id. at 248.
376. Id. (quoting Spangler v. Pasadena City Bd. of Educ., 611 F.2d 1239, 1245 n.5 (9th Cir. 1979) (Kennedy, J., concurring)).
377. Joondeph, supra note 73, at 158 ("The Freeman Court chose . . . to emphasize the importance of returning control to local authorities at the earliest practicable date."); The Supreme Court, 1991 Term, supra note 276, at 257 ("The Freeman Court's deference to the findings, conclusions, and actions of the district court is unmistakable. Justice Kennedy's opinion relied heavily on the role of a district court's equitable discretion in formulating a desegregation remedy.").
378. Freeman v. Pitts, 503 U.S. 467, 490 (1992) (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410 (1977) (Dayton I)); see also id. at 506 (Scalia, J., concurring) ("We must soon revert to the ordinary principles of our law, of our democratic heritage, and of our educational tradition . . . that public schooling, even in the South, should be controlled by locally elected authorities acting in conjunction with parents.").
379. Id. at 490 (quoting Board of Educ. v. Dowell, 498 U.S. 237, 247 (1991)).
380. Id.
381. Id.
382. Id. at 489.
383. Missouri v. Jenkins, 115 S. Ct. 2038, 2049 (1995) (quoting Dowell, 498 U.S. at 247).
384. Id. at 2054.
385. Id.
386. Id. at 2049 (quoting Milliken v. Bradley, 433 U.S. 267, 281 (1977) (Milliken II)). In her concurrence, Justice O'Connor added: [I]n the school desegregation context, federal courts are specifically admonished to take into account the interests of state and local authorities in managing their own affairs, in light of the intrusion into the area of education where States historically have been sovereign, and to which States lay claim by right of history and expertise. Id. at 2061 (O'Connor, J., concurring) (citations and quotation marks omitted). Experience indicates that lower courts have taken the message of these three decisions seriously. As of mid 1996, at least six district courts had cited one of the aforementioned passages from Dowell, Freeman, or Jenkins in finding that a formerly segregated school district had achieved partial or total unitary status. See, e.g., Reed v. Rhodes, No. 1:73 CV 1300, 1996 WL 376873, at *14 (N.D. Ohio May 8, 1996); Arthur v. Nyquist, 904 F. Supp. 112, 113 (W.D.N.Y. 1995); Keyes v. Congress of Hispanic Educators, 902 F. Supp. 1274, 1281-82 (D. Colo. 1995); Coalition to Save Our Children v. State Bd. of Educ., 901 F. Supp. 784, 794-95 (D. Del. 1995); Stell v. Board of Pub. Educ., 860 F. Supp. 1563, 1577 (S.D. Ga. 1994); Tasby v. Woolery, 869 F. Supp. 454, 459 (N.D. Tex. 1994).
387. See supra notes 82-92 and accompanying text.
388. Those decisions were, in chronological order, City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (holding that supposedly benign racial classifications in state and local governments' affirmative action programs are subject to strict scrutiny, and that to show compelling interest, these governments must demonstrate particularized findings of past discrimination in relevant community and industry), Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (holding that statistical disparities do not establish prima facie showing of disparate impact in Title VII claims, and that once plaintiffs do make prima facie showing, burden that shifts to defendants is one of production, not persuasion), Martin v. Wilks, 490 U.S. 755 (1989) (holding that white employees not party to consent decree have standing to attack affirmative action provisions in decree), and Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (holding that 42 U.S.C. § 1981 prohibits discrimination in formation and enforcement of contracts, but provides no relief for racially discriminatory working conditions).
389. 490 U.S. 642 (1989).
390. 488 U.S. 469 (1989).
391. See, e.g., Kenneth L. Karst, Private Discrimination and Public Responsibility: Patterson in Context, 1989 Sup. Ct. Rev. 1, 4-5;
392. The Supreme Court, 1988 Term - Leading Cases, 103 Harv. L. Rev. 137, 223-28, 314-20, 335-40 (1989);
393. The Court, Still Haggling over Rights, N.Y. Times, June 16, 1989, at A2;
394. Coyly, the Court Turns 180 Degrees, N.Y. Times, June 12, 1989, at A18;
395. Christopher Edley Jr. & Gene B. Sperling, Have We Really 'Done Enough' for Civil Rights?, Wash. Post, June 25, 1989, at B1;
396. Dorothy Gilliam, If Not the Court, Who?, Wash. Post, June 19, 1989, at D3;
397. Hendrik Hertzberg, Wounds of Race: Supreme Court Erodes Civil Rights, The New Republic, July 10, 1989, at 4;
398. Shaun L. Hill, Silent March to Protest Civil Rights Rulings, Wash. Post, July 23, 1989, at B6;
399. Al Kamen, Rights Groups Plan Hill Counterattack: Supreme Court No Longer Seen as Ally in Fighting Discrimination, Wash. Post, June 17, 1989, at A4;
400. Judy Mann, Defending Symbols and Denying Justice, Wash. Post, June 30, 1989, at C3;
401. Charles Mohr, Minority Advocates Fear Gains Will Be Lost, N.Y. Times, June 13, 1989, at B5;
402. Never Too Late for White Men, N.Y. Times, June 14, 1989, at A26;
403. Susan F. Rasky, Lawmakers Aiming at Reversing Bias Rulings, N.Y. Times, June 14, 1989, at A18;
404. William Raspberry, The 'Set-Aside' Reversal: Theory over Practice, Wash. Post, Jan. 30, 1989, at A9.
405. The Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, overruled Patterson by permitting the recovery of compensatory and punitive damages for discrimination in the terms and conditions of employment. Id. § 102(a) (codified at 42 U.S.C. § 1981a (1994)). And the Act overruled most of Wards Cove by restoring the burden on employers after a plaintiffs prima facie showing to one of persuasion, id. § 105(a) (codified at 42 U.S.C. § 2000e-2(k)(1)(A)), and by returning the rules concerning alternative business practices to "be in accordance with the law as it existed on June 4, 1994" - the day before Wards Cove was decided, id. (codified at 42 U.S.C. § 2000e-2(k)(1)(C)). Indeed, Congress specifically stated in the preamble to the Act that "the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) has weakened the scope and effectiveness of Federal civil rights protections," and that "legislation is necessary to provide additional protections against unlawful discrimination in employment." Pub. L. No. 102-166, 105 Stat. 1071 § 2.
406. Gewirtz, Choice in the Transition, supra note 47, at 786.
407. Christopher B. Mueller & Laird C. Kirkpatrick, Evidence Under the Rules 753 (2d. ed. 1993) ("[W]e allocate [evidentiary] burdens so as to recognize what is most probably true.");
408. Gewirtz, Choice in the Transition, supra note 47, at 786; cf. NLRB v. Baptist Hosp. Inc., 442 U.S. 773, 787 (1979) (stating that the validity of an evidentiary presumption depends on "'the rationality between what is proved and what is inferred'") (quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 805 (1945)).
409. I David W. Louisell & Christopher B. Mueller, Federal Evidence § 68 (1977) (stating that "[p]resumptions exist for varying, and often overlapping reasons," and that "[s]ome presumptions are based primarily on factors of procedural fairness");
410. Gewirtz, Choice in the Transition, supra note 47, at 786.
411. For the most thorough discussion this idea, see Gewirtz, Choice in the Transition, supra note 47, at 741-49.
412. See also Kevin Brown, Termination of Public School Desegregation: Determination of Unitary Status Based on the Elimination of Invidious Value Inculcation, 58 Geo. Wash. L. Rev. 1105, 1128 (1990) (explaining that black families' choices in Green "had been conditioned by established patterns of behavior and beliefs that were rooted in the invidious value"); Shane, supra note 13, at 1052 (noting likelihood that "social circumstances partly resulting from past segregation prevented blacks under freedom-of-choice plans from freely choosing to attend the schools they most preferred");
413. Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 901 (1987) (stating that "[t]he Court's hostility to [free choice] plans depends at least in part on a conclusion that the preferences of whites and blacks are distorted by the history of discrimination"). School districts' past discrimination likely tainted students' school choices in four discernible ways. First, the ongoing effects of the de jure system, particularly the racial identifiability of the schools, necessarily restricted students' options in exercising choice.
414. See Gewirtz, Choice in the Transition, supra note 47, at 742-44. Thus, in the immediate wake of de jure segregation, children in New Kent County could not choose an integrated school; they could choose only between an all-black school and a nearly all-white school. Second, the threat of retaliation or duress from whites who opposed desegregation almost certainly influenced the decisions of some African-Americans. Because free choice plans forced blacks to be the instigators of desegregation, the fear of predictable discrimination and hostility from whites likely steered more African-Americans toward predominantly black schools.
415. See Derrick Bell, Race, Racism and American Law § 7.4.1 (3d ed. 1994); Sunstein, supra, at 901. Third, the long period of state-imposed segregation that had just ended likely distorted some African-Americans' preferences, causing them to undervalue the benefits of desegregation.
416. See Gewirtz, Choice in the Transition, supra note 47, at 745. In other words, individuals who had lived for many years under Jim Crow were unable to form their preferences entirely independent of a value system still tainted by the effects of past discrimination. See Sunstein, supra, at 901. Finally, given the lack of interaction between whites and blacks during the de jure era, there likely were significant informational barriers that prevented individuals from knowing what to expect at an integrated school. In light of the natural tendency to prefer the known to the unknown, this lack of information caused more students to select schools in which they were in the racial majority.
417. See Gewirtz, Choice in the Transition, supra note 47, at 748.
418. Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 33 (1976) ("In Green the causal connection between past discrimination and the current racial composition of the schools was as clear as such matters ever can be.").
419. See Freeman v. Pitts, 503 U.S. 467, 500-07 (1992) (Scalia, J., concurring).
420. Id. at 505.
421. Id.
422. Id. at 506.
423. Id.
424. Id.
425. See id. at 491 ("With the passage of time the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish.").
426. See id. at 496 ("As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system.").
427. Justice Scalia stated that "[presumptions normally arise when proof of one fact renders the existence of another fact so probable that it is sensible and timesaving to assume the truth of [the inferred] fact . . . until the adversary disproves it." Id. at 505 (citations and quotation marks omitted) (alterations in original). He then took "sensible" to mean only sensible as a matter of factual accuracy, not as an appropriate allocation of error costs.
428. U.S. Const. amend. XIV, § 1.
429. 116 S. Ct. 1114 (1996).
430. Id. at 1125; see also Mitchum v. Foster, 407 U.S. 225, 238-39 (1972) ("As a result of the new structure of law that emerged in the post-Civil War era - and especially of the Fourteenth Amendment, which was its centerpiece - the role of the Federal Government as a guarantor of basic federal rights against state power was clearly established."). But see Richard A. Posner, Overcoming Law 220 (1995) ("The Reconstruction amendments do not on their face appear to revolutionize the relation between the national government and the states; their principal thrust is to abolish the racial caste system of the southern states.").
431. The Supreme Court acknowledged this basic purpose of the Reconstruction amendments in its first attempt to construe them, the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). While taking a narrow view of the amendments' impact on the distribution of power between the federal and state governments, a view that it has subsequently repudiated, the Slaughter-House Court at least recognized that the Reconstruction amendments fundamentally altered the principle of federalism with respect to protecting African-Americans from state-imposed discrimination: [O]n the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. Id. at 71. In dissent. Justice Field noted that the Fourteenth Amendment "was adopted . . . to place the common rights of American citizens under the protection of the National government." Id. at 93 (Field, J., dissenting) (emphasis added). Justice Bradley, also dissenting, expressed the implications of the Reconstruction amendments on federalism in even clearer terms: The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative . . . . The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which this right of regulation cannot infringe. . . . Id. at 112, 114 (Bradley, J., dissenting). Finally, Justice Swayne wrote in his dissent that these amendments are all consequences of the late civil war. The prejudices and apprehension as to the central government which prevailed when the Constitution was adopted were dispelled by the light of experience. The public mind became satisfied that there was less danger of tyranny in the head than of anarchy and tyranny in the members. . . . The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. Id. at 128 (Swayne, J., dissenting); see also 1 Bruce Ackerman, We the People: Foundations 95 (1991) (explaining that the Slaughter-House Court "recognized that the amendments revolutionized traditional principles of federalism so far as blacks were concerned").
432. Cf. Ronald Dworkin, Law's Empire 391-92 (1986) (stating that federal courts' intrusion "deep into the normal jurisdiction of school superintendents and other local officials" through school desegregation orders was largely unprecedented in American history, but that it was consistent with "a perfectly traditional view of the judicial office" and was "largely a credit to law").
433. Cf. Gewirtz, Remedies and Resistance, supra note 212, at 640 n.143 (contending that, where white flight follows implementation of desegregation remedy, "to the extent that causation remains a matter of empirical speculation, it seems appropriate to presume (rebuttably) that the government, already a proven segregator, is responsible").
434. See supra notes 52-64 and accompanying text.
435. Cf. Ralph Cavanagh & Austin Sarat, Thinking About Courts: Toward and Beyond a Jurisprudence of Judicial Competence, 14 L. & Soc'y Rev. 371, 408 (1980) (contending that often traditional, prohibitory approach to remedies "provide[s] little more than symbolic victories," and that "meaningful redress" is possible only "through 'intrusive' intervention").
436. Gewirtz, Choice in the Transition, supra note 47, at 739; Liebman, supra note 19, at 1529.
437. As James Liebman has explained: [A] prohibitory approach . . . provides virtually no incentive for [a formerly segregated school district] to refrain from choosing segregative school-assignment patterns: If the district does discriminate a second time, it may well escape being sued; if it is sued, it
438. See Armor, supra note 80, at 24 ("Although at first glance, freedom of choice appears to be a race-neutral policy of student assignment, it was more often used to preserve racially separate schools than to promote integration."); Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 111 (1987) (calling freedom of choice plans "devices school boards and their lawyers worked out to convey a sense of compliance with Brown, while in fact the schools remained segregated");
439. Mark G. Yudof, Nondiscrimination and Beyond: The Search for Principle in Supreme Court Desegregation Decisions, in School Desegregation: Past, Present, and Future 97, 99 (Water G. Stephan & Joe R. Feagin eds., 1980) (explaining that "state and local bodies were ingenious in the extreme in devising superficially neutral plans (pupil placement laws, ability grouping, freedom of choice) which were subterfuges for keeping the races separate in the public schools"). But see Graglia, supra note 46, at 1157 (contending that by late 1960s "no one was any longer being barred from any school - or, indeed, from any public facility").
440. In a concurring opinion to the Fourth Circuit's decision in Green, Judge Sobeloff explained: In view of the situation found in New Kent County, where there is no residential segregation, the elimination of the dual school system and the establishment of a 'unitary, non-racial system' could be readily achieved with a minimum of administrative difficulty by means of geographic zoning - simply by assigning students in the eastern half of the county to the New Kent School and those living in the western half of the county to the Watkins School. Bowman v. County Sch. Bd., 382 F.2d 326, 332 (4th Cir. 1967) (en banc) (Sobeloff, J., concurring), rev'd, 391 U.S. 430 (1968); see also Green v. County Sch. Bd., 391 U.S. 430, 442 n.6 (1968) (quoting same); cf. Lino A. Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools 78 (1976) ("Freedom of choice in school selection was a method very rarely employed except in districts required to end segregation. In operation it is cumbersome and expensive - often to the point of unworkability.").
441. Bowman, 382 F.2d at 332 (Sobeloff, J., concurring) ("[I]t is evident that here the Board, by separately busing Negro children across the entire county to the 'Negro' school, and the white children to the 'white' school, is deliberately maintaining a segregated system which would vanish with non-racial geographic zoning."); see also Green, 391 U.S. at 442 n.6 (quoting the same); Yudof, supra note 378, at 105 (stating that "[o]nly a fool would need to search the official records for evidence of racial prejudice under [the] circumstances" of Green).
442. See Bell, supra note 378, at 111.
443. Missouri v. Jenkins, 115 S. Ct. 2038, 2067 (1995) (Thomas, J., concurring).
444. Among commentators on the subject, only Ronald Dworkin has endorsed a reading of Green similar to this. See Ronald Dworkin, Social Sciences and Constitutional Rights - the Consequences of Uncertainty, 6 J. L. & Educ. 3, 11-12 (1977). Dworkin has contended that constitutional "rights are based on antecedent probabilities," so that "the equal protection clause . . . provides that no decisions with a high antecedent probability of corruption though [sic] prejudice should be left to the normal political process." Id. at 10-11. In a community that has recently shown prejudice toward African-Americans through state-imposed segregation, there is a strong antecedent probability that the political decisions determining the assignment of students to public schools will be corrupted. Id. at 11. Unless the background of prejudice has truly dissipated, the only way to ensure that the school district's student assignment plan was not tainted by prejudice in the political process would be to require the plan to be "of a sort itself to negate the charge of corruption." Id. at 12. Green's mandate to integrate therefore works as an order to school boards that implicitly says the following: If you refuse yourself to produce an outcome that negates the antecedent probability of corruption, then we must impose on you such an outcome. The only decision that we can impose, given the nature of the problem, is a decision that requires integration on some formula that is evidentially not corrupt even if it is just as evidently arbitrary. Id. Thus, "[u]ntil the background changes," such that we are no longer presumptively convinced that the political process is corrupted by discrimination, "integration is required as the only thing that can sustain the burden of proof rising from the antecedent probability of corruption." Id.; see also Liebman, supra note 19, at 1532-39 (discussing Dworkin's "prophylaxis" explanation for the Supreme Court's desegregation remedies decisions). For critiques of Dworkin's argument,
445. see Gewirtz, Choice in the Transition, supra note 47, at 739 n.33 (contending that Dworkin's prophylactic explanation for mandate to integrate is "curious" because it rests on general predicate - i.e., one assumed to be applicable to all formerly segregated school districts - rather than one based on specific recalcitrance of particular defendant), and Yudof, supra note 378, at 105-07 (arguing that Dworkin's theory fails to justify remedy - mandatory integration - when harm is not denial of integrated education but infection of political process by prejudice).
446. Dworkin, supra note 383, at 12 (stating that when "the background changes in one of two ways, [when] our sense of prejudice abates or blacks have the political power to make decision in question," mandate to desegregate would no longer be necessary).
447. See Klarman, supra note 26, at 11 (noting that "southern blacks have advanced from nearly universal exclusion from the political community to participation rates roughly comparable to those of southern whites of similar economic class, with concomitant increases in the responsiveness of public officials to the interests of the black community").
448. Jenkins, 115 S. Ct. at 2062 (Thomas, J., concurring).
449. See supra notes 79-81 and accompanying text.
450. Jenkins, 115 S. Ct. at 2070 (Thomas, J., concurring).
451. Id.
452. Id. at 2071.
453. See id. at 2061; Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 Cornell L. Rev. 1, 6 (1992) (contending that Supreme Court's "remedies for de jure segregation are based upon an assumption of African-American inferiority - the same assumption that pervaded the constitutional violation of de jure segregation").
454. Jenkins, 115 S. Ct. at 2065-66 (Thomas, J., concurring).
455. Id. at 2061; see also Graglia, supra note 46, at 1171 (contending that district court's remedial order in Swann, which effectuated Green's corrective approach by mandating integration through busing, "was based on the erroneous theory that predominantly black schools are unconstitutional because inherently inferior"); cf. Shane, supra note 13, at 1059-60 (recognizing that there are "philosophical objections to the proposition that all-black schools are inherently harmful," largely because it "erroneously implies that black political autonomy has no positive value").
456. Jenkins, 115 S. Ct. at 2065 (Thomas, J., concurring).
457. Id. at 2066.
458. Id. at 2065.
459. See, e.g., Brest, supra note 358, at 35-36; Gewirtz, Choice in the Transition, supra note 47, at 739; Liebman, supra note 19, at 1524-32.
460. Liebman, supra note 19, at 1541 ("The problem with segregation . . . is legislative racism, racism infecting political judgments about how organized society should allocate scarce resources, educational or otherwise.").
461. See id. at 744-45; Sunstein, supra note 357, at 901.
462. See Brest, supra note 358, at 37; Gewirtz, Choice in the Transition, supra note 47, at 745-48;
463. Eric Schnapper, Perpetuation of Past Discrimination, 96 Harv. L. Rev. 828, 857 (1983) .
464. See Christine H. Rossell, Desegregation Plans, Racial Isolation, White Flight, and Community Response, in The Consequences of School Desegregation 13, 51 (Christine H. Rossell & Willis D. Hawley, eds. 1983) (finding that "[i]n forming opinions, whites appear to rely on racial composition . . . as [a] surrogate[ ] for quality").
465. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, 239 (1976).
466. See Schnapper, supra note 400, at 858 ("When governmental discrimination creates continuing social or physical conditions, each injury caused by those conditions is a fresh constitutional violation.").
467. Davis, 426 U.S. at 240. Eric Schnapper has similarly noted that the persistence of a predominantly black school's racial identifiablility in the wake of de jure segregation represents "a constitutionally impermissible badge of inferiority. That label, having been placed on the school and its black students by systematic de jure segregation, can be removed only by altering the composition of the student body." Schnapper, supra note 400, at 857.
468. See supra note 371 and accompanying text; see also Ackerman, supra note 371, at 44-47.
469. U.S. Const. amend. XIV, § 5.
470. Moreover, where state-imposed segregation existed for nearly one hundred years, as it did in most southern and border states, federal judicial intrusion for twenty to thirty years hardly seems disproportionate.
471. Freeman v. Pitts, 503 U.S. 467, 496 (1992).
472. Green v. County Sch. Bd., 391 U.S. 430, 438 (1968).
473. Board of Educ. v. Dowell, 498 U.S. 237, 247 (1991).
474. Missouri v. Jenkins, 115 S. Ct. 2038, 2054 (1995).
475. Freeman, 503 U.S. at 489.
476. Gewirtz, Choice in the Transition, supra note 47, at 798.