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Appendix

CRS-2

Page Seventy-One

In Brown, the Court ruled that the Equal Protection Clause
forebade State statutes that required or permitted (by local op-
tion) separate schools for black and white children. The condi-
tion that offended the Constitution was not the mere fact of segre-
gation but the practice of assigning students to the public schools on
the basis of race. Consequently, the remedy commonly ordered was a free-
dom of-choice plan, in which black students were given the option of trans-
ferring to white schools.

Fourteen years after Brown, the Court in Green v. County
2/

School Board recognized that the freedom-of-choice plan used in

New Kent County, Virginia failed to eliminate the racially identifi-
able schools which had resulted from the statutory separation of students
by race prior to Brown. The Green Court held school officials to an "af-
firmative" constitutional duty to eliminate all "vestiges" of a dual school
system including the effects of past discrimination. Swann v. Board of
3/
Education reaffirmed Green and adopted an evidentiary presumption

that present segregation was an effect of past violations. The Swann
Court also approved the use of racial ratios in each school in the dis-
trict as a "useful starting point in shaping a remedy" and emphasized the
propriety of extensive student busing to desegregate schools.

2/ 391 U.S. 430 (1968)

3/ 402 U.S. 1 (1971)

Appendix

Page Seventy-Two

CRS-3

Until 1973, all desegregation cases to reach the Supreme

Court involved school districts, mainly in the South, with a long history
of racial separation pursuant to explicit governmental policy. State
statutes mandating racial segregation were deemed sufficient per se to
establish a prima facie case of a Fourteenth Amendment violation without
additional proof of discriminatory intent on the part of State legislators
or school officials. In its 1973 ruling in the Denver case, Keyes v. School
4/
District No. 1, the Court considered the quite different situation of
school segregation in a Northern jurisidiction which had no prior history
of statutory dual schools. In that case, segregation was maintained by
State action in the form of more subtle policies, such as school site
selection and construction, use of portable classrooms, and the manip-
ulation of student attendance zones. Where segregation is achieved by
these policies, the entire district is not necessarily implicated in the
violation. Also, unlike the South, the courts in the urban North faced
the problem of many one race school districts which could not effectively
be integrated without resort to remedies involving other districts.
distinctions established the framework for the Court's approach to desegre-
gation in the North.

These

In Keyes the Court ruled that "purpose or intent to segregate" was essential to finding a constitutional violation in a State which never

4/

413 U.S. 189 (1973)

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Appendix

CRS-4

Page Seventy-Three

required racial separation of students by statute. It further held, how-
ever, that discriminatory school board actions in one part of Denver's
school system could justify broad relief to eliminate racially identifiable
schools throughout the city. Keyes reaffirmed the Swann presumption against
predominantly one race schools and, in addition, held that proof of segre-
gative intent with regard to one portion of the school system created a
presumption that school board actions elsewhere were racially motivated.
By use of these dual presumptions, the Court found that the Denver schools
were segregated on a systemwide basis and affirmed a plan to desegregate
the district as a whole.

Swann and Keyes differed primarily in their allocation of the
burden of proof in school cases. In Swann, involving a Southern juris-
diction formerly segregated by statute, a prima facie case of unconsti-
tutional segregation was established by the mere existence of racially
identifiable schools. The burden was on the school board to overcome
this prima facie case. In Keyes, on the other hand, where there was
no past history of segregation by law, the initial burden was on the
plaintiffs to prove intentionally segregative acts by school authorities
in a "substantial" or "meaningful" portion of the school system. This
established a prima facie case that the entire system was illegally seg-
regated. The burden then shifted to the school board to rebut plain-
tiffs' prima facie case by proving that "segregative intent was not among
the factors that motivated their actions" with respect to the rest of

Appendix

110

CRS-3

Page Seventy-Two

Court involved school districts, mainly in the South, with a long history

Until 1973, all desegregation cases to reach the Supreme

of racial separation pursuant

to explicit governmental policy. State

per se to

statutes mandating racial segregation were deemed sufficient
establish a prima facie case of a Fourteenth Amendment violation without
additional proof of discriminatory intent on the part of State legislators
or school officials. In its 1973 ruling in the Denver case, Keyes v. School
District No. 1, the Court considered the quite different situation of
school segregation in a Northern jurisidiction which had no

of statutory dual schools. In that case, segregation was maintained by
State action in the form of more subtle policies, such as school site
selection and construction, use of portable classrooms, and the manip-
ulation of student attendance zones.
prior history
these policies, the entire district is not necessarily implicated in the
violation. Also, unlike the South, the courts in the urban North faced
the problem of many one race school districts which could not effectively
Where segregation is achieved by
be integrated without resort to remedies involving other districts. These
distinctions established the framework for the Court's approach to desegre-
gation in the North.

In Keyes the Court ruled that "purpose or intent to segregate" was essential to finding a constitutional violation in a State which never

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