COLUMBUS BOARD OF EDUCATION v. PENICK

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Argument of Samuel H. Porter

Chief Justice Warren E. Burger: Mr. Justice Brennan.

We'll hear arguments first this morning in Number 610, Columbus Board of Education against Penick.

Mr. Porter, you may proceed whenever you're ready.

Mr. Samuel H. Porter: Mr. Chief Justice and may it please the Court.

This case involves the application of presumptions of intent in order to extrapolate a judgment of system-wide liability in the imposition of a system-wide racial balance remedy from conduct where a system-wide racial balance remedy is not warranted by the incremental segregative effects of the identified constitutional violations.

I wish to make at the outset a brief statement, an overview of the Columbus public school system in the remedy that the Court ordered in this matter before I go to a discussion of the specific errors.

And, initially, I would like to point out that the Ohio State Board of Education was a party below and has filed a brief concurring with the petitioners' view and their position is fully supportive of ours and we in turn are supportive of what they have to say and we recommend that brief to the court.

The Columbus public school system is the fourteenth largest city school system in the United States and like most school systems during the ‘50s and ‘60s.

It went through an enormous period of growth.

In 1950, it had a school enrolment of about 46,000 students.

It grew to 1971 of -- to about 110,000.

At the same time, its area increased from some 45 square miles to 170 square miles, one of the largest growths that took place anywhere in this country.

Justice Potter Stewart: Is the school district -- are there boundaries of the school district coterminous with the boundaries of the City of Columbus?

Mr. Samuel H. Porter: Not entirely, Mr. Justice Stewart.

They -- there are some exceptions that took place by virtue of some legislation in 1958 which made it that time.

They didn't have to follow each other.

They are for the most part however, particularly since the Ohio Supreme Court in 1956 ordered -- approved a transfer of a number of pieces to the City of Columbus that had been authorized by the Ohio State Board of Education, so that they are at this time for the most part contiguous but not entirely.

During this period of time, the school system added 103 school buildings and they added 145 additions to various facilities, some old and some that were build during that time.

So that, at the time of trial, the system consisted of 170 school buildings with 97,000 students, 67 -- approximately 67% white and approximately 32% non-white.

School --

Justice Potter Stewart: All the others, it adds up to 99%.

Mr. Samuel H. Porter: 37 -- 67.5 white, 32.5 non-white.

Justice Potter Stewart: I see.

Mr. Samuel H. Porter: There are very few others.

There are a few but they are insignificant.

Justice Potter Stewart: Well, either -- what are they -- a certain -- white or non-white.

Mr. Samuel H. Porter: I'm sorry, Your Honor.

They are non-white.

In the early ‘70s or the late ‘60s, the Columbus public school system set out on a system that was in design to bring about voluntary integration of its school system and it entered into what it refers to and what is described in the court's opinion as the Columbus plan racial transfer.

They also set about a program of magnet and alternative schools, a series of career centers that are located throughout the system, and they attempted to what -- new attendants areas to improve racial balance.

All of these things were expanded each year during the 1970s.

And although the racial -- there is not racial balance within the Columbus public school system or was not at the time of trial.

All -- virtually all schools were racially mixed and the balance within the schools of Columbus, their racial balance was superior or a better balanced than that which existed within the residential patterns of the City of Columbus at that time.

All schools at the time of trial had balanced faculties.

On March 8, 1977, the District Court found that the entire Columbus public school system was unlawfully segregated and based on this general conclusion of system-wide liability and without determining the incremental segregative effect ordered a system-wide racial balance remedy.

And they did this in spite of the fact that they had determined at the same time that it would not have been possible to have had within the public school system of Columbus without any act of unconstitutional conduct, a racially balanced system, and that is part of the lower court's finding.

Justice William H. Rehnquist: Mr. Porter, don't you think that the District Court's findings are pretty well-insulated from review by the language from Judge Edward's opinion of the Court of Appeals for the Sixth Circuit in this case which is at page 199 of the petition where he says if the detailed findings in this paragraph tracking the language of the date and case, and he's referring to the District Court's postdated opinion, cannot appropriately be implied from the District Judge's post datement-- date and opinion, and we think they can and should be.

We now enter these findings as the findings of this Court based upon the 6,600 pages of evidence in the record made before the District Court.

Mr. Samuel H. Porter: If the question, Mr. Justice Rehnquist, and I'm not sure that I understand it, if it -- if the question is, “Is that an appropriate finding of system-wide liability by the Court of Appeals?” It is our position that it is not.

If the question is, “Are we raising at this time or attacking the findings by the District Court with respect to specific violations?”

No, we are not.

We are assuming that those findings were correct that what our position is that they were isolated findings and that they cannot support a system-wide remedy.

And we go further and say that the Sixth Circuit -- that Judge Edwards cannot overcome the failure to make specific findings simply by making the statement that he does make.

We believe that he is required under the date and case to make specific findings of fact and then determine the incremental segregative effect.

The order that the District Court -- the order of desegregation which the District Court approved ordered the reassignment of some 42,000 school children, it ordered the transportation for a racial balance of 37,000.

It required the purchase of some 213 buses with an -- with using those buses plus the old fleet, it requires four starting times and four ending times during the day.

And this was done as I said, even though the Court had found that if the Columbus system had never acted improperly, the racial balance would not be accurately reflected within the system.

If it -- the District Court recognized in their -- his March 8, 1976 opinion -- 1977 opinion that racial balance -- imbalance was due to the residential patterns within the City of Columbus.

We believe that the question that they presented here is where there is no history of absolute segregation whether compelled by statute or otherwise, and the system serves urban areas with large and highly concentrated black population where there is substantial residential segregation.

Can you, under those circumstances, use standards and presumptions in order to arrive at a system-wide remedy?

The first and most obvious error, was that the court -- lower courts failed to determine the current incremental segregative effect in the manner required by Dayton I.

The second was that lower courts concluded that Columbus was a dual system through the improper use of legal presumptions and shifting burdens of proof.

And third, the lower court applied an erroneous standard for determining segregative intent.

We believe that Dayton I sets forth the required approach that federal courts must take in the trial of school desegregation cases.

Thus, the first step is to make a factual determination whether there were specific instances where the School Board attended to and did in fact discriminate against minorities.

And if such constitutional violations are ascertained, then the court must determine the current incremental segregative effect of these violations have had on the present racial school population.

The incremental effect is to be measured by comparing the present racial distribution in the schools to what it would've been if the constitutional violations had not occurred.

Unknown Speaker: Mr. Porter, I take it your argument is that this should be done even if there is a supportable finding of a system-wide violation.

Mr. Samuel H. Porter: Yes, because -- Mr. Justice, because the -- simply the statement that there is a finding of system-wide is meaningless by itself.

The -- it is our position that it is necessary to make a determination of what was the effect of those violations presently, what -- and what is the incremental segregative effect and what is necessary in order to eliminate it.

Unknown Speaker: Would you make the same argument if there were de -- a de jure case such as the Swann case?

Are you asking us to reconsider Swann?

Mr. Samuel H. Porter: We believe that Swann and Green are remedy cases.

They are de jure.

We believe that in those cases that you're dealing solely with remedy.

Here the question is -- first, violation.

Unknown Speaker: But my question was assuming that you had a supportable finding of a system-wide violation.

That was my question.

Mr. Samuel H. Porter: You could the -- you could very well be required.

The court could very well be required to make a finding of fact, present of fact.

For example, suppose the system has gone through desegregation, suppose it has gone through racial balance and it in fact is racially balanced such as in Pasadena and it is racially balanced and then it gets out of balance.

Question becomes whether or not there's a duty and obligation and so forth and it would be our position that before you could, you would have to make the determinations.

Unknown Speaker: Let me put the question a little differently.

Supposing you have two cases, one, a de jure case and another a de facto case in which there is admittedly a system-wide violation.

And in both cases that it would be rather clear that there'd never been any violation at all.

You wouldn't have total integration.

Would you say the remedy authorized in Swann is appropriate or inappropriate or would you say there's a difference between the two cases?

Mr. Samuel H. Porter: If I followed it and I may have lost it, I beg your pardon.

We feel that there's a difference.

We think you have to make the findings.

We don't think that you can get to a question of whether or not there is system-wide violation, whether there is de jure or whether there are state imposed constitutional violations throughout the system without making the types of factual determinations that Dayton I would seem to indicate.

Unknown Speaker: Thank you.

Justice Lewis F. Powell: Did Dayton -- did the Court in Dayton order racial balance in every single school pursuant to some formula?

Mr. Samuel H. Porter: No, Mr. Justice Powell, not in Dayton.

Justice Lewis F. Powell: I'm sorry.

I was thinking about Swann.

I got the cases confused.

You were talking about Swann.

In Swann, was there any comparable order to -- the order in Columbus?

Mr. Samuel H. Porter: When it went back, I'm not sure.

I'm sorry, I don't recall.

I know very well what the -- this Court said about Swann, and --

Justice Lewis F. Powell: I'm talking about Swann.

Mr. Samuel H. Porter: The Swann?

Justice Lewis F. Powell: Yes.

Mr. Samuel H. Porter: The -- this Court discussed it as a starting point for the fashioning of a remedy and we have no problem with that.

What we say is that you can't get to the scope of the remedy until you determine what the magnitude of the wrong is and you can't supply the wrong or its magnitude simply by the statement that it is a dual system or that it's system-wide.

That is our position and I might say that, in studying the lower court's opinions, one has to very careful because it's obvious after a reading or two or a thought, that segregation is related in -- to a high degree within those opinions to racial imbalance and the two we would suggest are not the same but they're treated to a high degree the same.

Justice William H. Rehnquist: Mr. Porter, along the lines of Justice Stevens' question, on page 73 of the appendix to your petition which has Judge Duncan's opinion in it, he says the finding of liability in this case concerns the Columbus school district as a whole.

Actions and omissions by public officials which tend to make black schools black are necessarily have the reciprocal effect of making white schools whiter.

Do you think he would've found the system-wide violation if there had just been segregation in one school?

Mr. Samuel H. Porter: I don't know how to answer that, Mr. Justice Rehnquist.

I think that the lower court -- the trial court felt that there were specific acts of unconstitutional conduct and I think he thought that they were those 10 or 11 which he identified and I think that he felt that there was racial imbalance throughout the system.

And I think that he felt that there was an obligation to remove that racial imbalance particularly because he found that there was a dual school system in 1954.

And what -- and he really runs down two tracks at the same time.

One is the dual school system which he finds required the dismantling.

The second is a separate line of specific unconstitutional violations after 1954 and he puts them all together.

I don't know how to -- I don't know that I can answer your question.

Justice William H. Rehnquist: Well, but don't you detect at least from that part of his opinion that he perceived a ripple effect from any unconstitutional act of segregation that would eventually have -- make its effect felt throughout the system?

Mr. Samuel H. Porter: Well, he may have, although I don't think the record would support it.

But I would point out that if that's so that's the very reason that you need to go to look to the effect to see what is the scope of the remedy that's going to be required in order to rectify whatever that wrong was.

I might add with respect to reciprocal effect there is very, very little in the record on reciprocal effect.

I think the only testimony in the record was from Mr. Sloane who said that he had never studied the Columbus system and he talked about it in the general way.

Mr. Ta -- Dr. Taeuber may have mentioned the principal emphasis on reciprocal effect comes in the appendix to the respondents' brief which was of course not part of the record in this case.

We would -- I would like to talk just briefly, I think, about the matter of presumptions.

Before I do, I would like to point out what the system looked like in 1976 at the time of trial with regard to the violations that have been found by the District Court.

And there are some 11 or 13 depending on how you count them.

There were a group of so-called black schools enclave which he found had been created prior to the Second World War over a period of years.

Three of those schools -- three of the five remained in 1976 and they housed 3% of the black students within the Columbus public school system.

He found that there were two sites which he felt run -- unconstitutionally selected.

One of them had been eliminated in 1973 with an integrative effect.

One of them remained and it was surrounded by black schools.

There were three optional on this which he talked about.

Two have been eliminated in the early ‘60s.

One in 1975, so that there were none at the time of trial and the one in 1975 involved two youngsters and they went to racially balanced schools.

There were two so-called discontiguous zones, one of which have been abolished in 1963 and one of which, he stated or the inferences from his statement and the exhibits will show, was integrative in 1968.

And finally, there was the so-called paring of Innis and Cassady where the School Board and the Court disagree and Innis, at the time of trial, was racially balanced.

Now, these are the violations and that's all there were.

And, it's --

Justice Potter Stewart: Do you concede that these were constitutional violations?

Mr. Samuel H. Porter: No.

We think that the evidence fully supported Your Honor, a finding to the contrary but this -- but we are not here to argue whether he was right or wrong.

That's what we have and we -- our position is that he took that and then used it to make presumptions of system-wide liability.

Justice Potter Stewart: So, for the purposes of this case in its present posture, do you acknowledge that they were constitutional violations?

Mr. Samuel H. Porter: For the purposes of this case and this argument, we will not take issue with those findings.

Justice Potter Stewart: And there were how many, three -- four?

Mr. Samuel H. Porter: Over the 75 years, there are 11 or 13 findings or specific instances, depending on how one counts them.

I think that is accurate.

They are set forth in our brief and they're discussed in detail within the brief.

And the point -- simply the point that we want to make is that you can't end.

I would point out that the record and his opinion does not support the proposition that they are examples.

They are not examples and his opinion is clear that they're not examples.

They were his findings of fact.

Justice Potter Stewart: They were the sum total.

Mr. Samuel H. Porter: They are the sum total.

And it's -- this is the springboard for the moving of some 37,000 people and racially balancing 170 schools.

And what --

Justice Potter Stewart: And racial segregation in public schools has been illegal under the law of Ohio since, what, the 1880s?

Mr. Samuel H. Porter: About 1887 and I think the Court had found that this school system, racially balanced beginning in 1881.

Justice Thurgood Marshall: I thought it found that before, back in 1954, Columbus schools system was segregated.

Judge Duncan found that as a fact, didn't he?

Mr. Samuel H. Porter: Mr. Justice Marshall, that's -- that is what he found.

He also stated --

Justice Thurgood Marshall: Well, that's -- well, what have you got to say that it is not true?

Mr. Samuel H. Porter: The question that I was addressing was the --

Justice Thurgood Marshall: You said that there wasn't any segregation in Columbus since 1880.

Isn't that what you said?

Mr. Samuel H. Porter: My respon --

Justice Thurgood Marshall: If you --

If you didn't, I misunderstood you.

I thought that's what you said.

Mr. Samuel H. Porter: My response to Mr. Justice Stewart was that the Columbus public school system was in -- an integrated system in 1881.

And as stated by Judge Duncan in his opinion and order that condition continued until the early 1900s.

It was his view then that there was a departure about 1905 or 1906 which at that time resulted in the establishment of what he found was the creation of a black school.

Justice Thurgood Marshall: And in 1954 it was segregated.

Mr. Samuel H. Porter: In 1954, it was the lower court's view that there were five schools which constituted an enclave in the center of the city --

Justice Thurgood Marshall: Well --

Mr. Samuel H. Porter: -- which had been -- which were the result of unconstitutional conduct.

Justice Thurgood Marshall: Is it true or not that Judge Duncan said, “The Columbus public schools were openly and intentionally segregated on the basis of race when Brown was decided in 1954?”

Isn't that what he said?

Mr. Samuel H. Porter: Yes, Your Honor, it is.

The Columbus public school system was not a dual school system in 1954 and it was not a dual school system in 1976.

There was substantial racial mixing within the Columbus public school system in 1976.

If one will look at our brief for example, there are some 13 high schools in existence at that time half of which were within the plus or minus 15% of the racial balance requirement of Judge Duncan, half of the Columbus public school high schools.

And several of them are within a point or two and it is our position that under those circumstances you do not have a dual school system and you cannot use simply the phrase, “You have system-wide liability, dual school system is a jumping off point for ordering the reassignment of 42,000 people.”

And we think that Dayton is correct.

We do not believe it is inconsistent with Keyes, which I'm obviously not going to get to but we think that the presumption in Keyes is not inconsistent with Dayton.

The presumption deals with intent.

It deals with violation and there was no finding of a substantial effect on the Columbus public school system in 1976 of any violations.

And it is our view that under those circumstances that the District Court should not have ordered the remedy that he ordered.

There is a third matter that appears in our brief that deals with segregative intent.

We believe that the wrong standard was used.

We think that --

Justice Potter Stewart: That is in determining whether or not there was a constitutional violation --

Mr. Samuel H. Porter: Yes sir.

Justice Potter Stewart: -- any constitutional violations, but you've earlier told us and I thought that for purposes of this argument, you acknowledge that there were at least some constitutional violations.

Mr. Samuel H. Porter: That is correct, Mr. Justice Stewart.

But five or six or eight or ten in a system of 170 square miles does not constitute a dual school system.

Justice Potter Stewart: No, I understand it.

Mr. Samuel H. Porter: And it was used -- it was then used by the District Court and the Court of Appeals for the purpose of equating whether or not the acts of the school system tended to or did in fact improved racial balance.

And we suggest and argue to this Court that that is not an ap -- the appropriate way of going about it.

That obviously, the school system -- a neighborhood school system is going to reflect the housing patterns of the community.

Some will be balanced, some will not be, some will be close, and so forth.

I would like to conclude simply by asking this Court or pointing out to the court, I guess more accurately, that in Ohio there are about six school cases going on: Cleveland, Columbus, Dayton, Cincinnati, Akron, Youngstown.

They're in various stages.

Several have been tried.

Two have reached one result in the District Court.

Two have reached another result.

And we think that before a school system which is insolvent is asked to go through massive relocations and massive reassignments that there should be -- the District Court should be required to make very definite specific findings and they should be required to make the type of inquiry that Dayton I calls for.

If it isn't Dayton I, with all due respect, then it should be something else but it should not be sufficient.

It should not be sufficient to simply say in broad generalities that a condition exists, you go out and remedy it.

There are many, many, many remedies, some of which look to racial balancing.

This remedy was obviously of racial balance, was the only thing considered by the District Court and it was the only thing considered by the Court of Appeals.

And we would suggest that it is inappropriate and that in order to deal with this type of situation at least in the State of Ohio, specific instructions from this Court as to what the trial courts should do and the type of findings that they should make, we would suggest to this Court would be very helpful.

And I wish to thank you for the opportunity of appearing.

Argument of Thomas I. Atkins

Chief Justice Warren E. Burger: Mr. Porter, thank you.

Mr. Atkins.

Mr. Thomas I. Atkins: Mr. Chief Justice, may it please the Court.

I would like to begin by simply stating what the respondents seek from this Court.

We ask that this Court sustain the finding made by the District Court below and the Court of Appeals that indeed under the controlling legal principles here before announced, a dual system existed in Columbus at the time of the Brown decision from this Court.

And that the existence of that dual system imposed an affirmative duty under Green and we ask this Court on its review of the record as the District Court below and the Court of Appeals below to find default by the local officials in carrying that affirmative responsibility a failure to dismantle the dual system.

We ask this Court to reject the petitioners' preposition that you can treat a system-wide cancer such as segregation with a band aid.

And instead to remain true to its holdings in Brown, in Green, in Swann, in Keyes, in Milliken, and we believe in Dayton that where a system-wide violation has been shown to exist.

Only a system-wide remedy is capable of correcting the condition that offends the constitution.

Justice William H. Rehnquist: Mr. Atkins, you speak of the court remaining true to its teachings in Dayton and I'd like to ask you about a finding of Judge Duncan and then ask you about some language from Dayton.

On page 58 of the appendix in Judge Duncan's opinion, he says in the middle paragraph there, “The interaction of housing in the schools operates to promote segregation in each.

It is not now possible to isolate these factors and draw a picture of what Columbus schools or housing would've look like today without the other's influence.

I do not believe that such an attempt is required.”

And then, compare that with our language in Dayton, “If violations are found, the District Court and the Court of Appeals must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population is presently constituted.

And when that distribution is compared to what it would've been in the absence of such constitutional violations.”

Don't you detect some inconsistency there?

Mr. Thomas I. Atkins: No, I do not, Mr. Justice Rehnquist.

I read page 58 of the District Court's opinion to be simply another way of saying what this Court said in Swann in addressing the question of the permissible scope of transportation as the remedial implement.

And it said we cannot precisely define for every case how much will be permissible.

It is not possible to do.

The District Court after sitting through a trial with 70 witnesses over 700 exhibits and nearly 7,000 pages of transcript said, “What I have seen on the basis of the entire record before me is segregative intent specifically carried out through active -- actions of the public officials with an impact which is system-wide in scope.”

Here, he speaks specifically to the interaction between the school segregation these petitioners caused and the housing segregation in the neighborhoods around the schools.

He says here, as he does in other points throughout his opinion, “Far from the schools being segregated, because the neighborhoods were segregated, the neighborhoods are in part segregated because they segregated the schools.”

I don't find any inconsistency here.

And in this Court's teaching in Dayton where it calls for the most careful kind of scrutiny of the violations being urged upon the District Court by whoever comes to it seeking relief.

We believe and we think the record shows that the District Court was very, very careful in evaluating that record.

It fully credit it.

The evidence offered by the defendants, it examined it carefully.

It made in many instances, as they have cited statements about that evidence.

It found by the clear convincing weight of all of the evidence before it, including their evidence, that there was system-wide segregation and that the segregation was not adventitious.

Justice William H. Rehnquist: Well, what do you think the court meant by “system-wide segregation?”

It certainly wasn't the sort of system that you had in many southern states at the time of Brown I where races were forbidden to attend the same school by law.

Mr. Thomas I. Atkins: I think the court recognized, as this Court did in Keyes, that state action can take place either by the passage of a law in a legislature or by the action of a school official imbued with the power of the state constitution and legislature.

It found in this case as in Keyes, that the state action which offended the constitution were the specific policies which pre-1954 created the five black schools overnight in several instances which had a specific policy of assigning all the black faculty only to the black schools which as my brother counsel fails to point out to the court.

When this Court found construction violations that created a black school, it was also a finding as this Court has noted, a reciprocal effect necessarily upon the white schools whose boundaries were changed to accommodate the warehouse being built for black students.

Justice William H. Rehnquist: But supposing that just happened once, just one site selection that taken place with a deliberately segregative attempt on -- intent on the part of one.

Do you think that would justify a finding of system-wide segregation in a school system the size of Columbus because of the ripple effect?

Mr. Thomas I. Atkins: No, Mr. Justice Rehnquist.

Respondents are not so arguing because we think that is not common sense.

We think that a --

Justice William H. Rehnquist: Well, what --

Mr. Thomas I. Atkins: -- finding of a single violation with a single school even taking into account whatever reciprocal effects there might have been would certainly not justify a system-wide remedy and we are not arguing that here.

That's not the facts here.

Justice William H. Rehnquist: Well, then, what -- there is some intermediate finding then, I take --

Mr. Thomas I. Atkins: Yes.

Justice William H. Rehnquist: Everybody concedes that the District Court has to make between a single segregative act and the imposition of a system-wide remedy.

What factors does the District Court consider in making that finding?

Mr. Thomas I. Atkins: I think -- and I think the District Court and the Court of Appeals, if I might say, each wrestled with that problem as indeed this Court has wrestled with it.

It's not an easy determination to make.

Part of what goes into making that determination is for the court to evaluate the intent of the policymakers because if the court finds that what they set out to do, what they intended to do was in every instance possible to segregate on the basis of race.

The fact that they may have been incompetent and therefore unsuccessful in some instances is not exculpatory.

That's a factor to be considered.

The court has to consider whether the racial segregation in a particular school is the result of patterns over which the school officials did not have control and could not be thought reciprocally to have impacted.

Housing is one such instance where it can be shown their policies of segregation did not either precede or go lockstep with segregative policies on the part of the other state empowered people such as realtors or licensed people such as brokers.

That's a factor to be taken into account.

This Court specifically noted that it took into account the Columbus official's system-wide policy with respect to what to do with black children in the pre-1954 era.

And the answer was clear.

As the record shows, put them in black schools wherever possible.

It said it considered the system-wide policy as related to faculty, a policy which started at least as early as the beginning of the century and which lasted at least as long as 1974 when they couldn't do it anymore because the state said stop.

Justice Potter Stewart: Now, as I understand it, this lawsuit was brought in, what, 1976?

Mr. Thomas I. Atkins: 1973.

Justice Potter Stewart: 1973

Mr. Thomas I. Atkins: The trial was 1975-1976.

Justice Potter Stewart: Alleging and the basis for the lawsuit was and had to be, a claim that the Columbus School Board was then violating the law of the State of Ohio and the Constitution of the United States by maintaining a dual school system, i.e. a school system, ones -- some schools for Negros and other schools for white people.

Is that it?

That was their claim, wasn't it?

Mr. Thomas I. Atkins: That was essentially the claim, yes, Your Honor.

Justice Potter Stewart: And, at that time, how many all-white or all-black schools were there in the system?

Mr. Thomas I. Atkins: I must -- in attempting to respond to that -- complete the answer I didn't want to fully give when you're asking the question.

The claim in its totality was that the school officials in Columbus had set out on a deliberate policy to segregate the students by race and that that included pre-Brown segregation and specific maintenance of the segregated system after Brown.

At the time of trial --

Justice Potter Stewart: Well, the -- but the gist of the lawsuit had to be that at the time of the lawsuit --

Mr. Thomas I. Atkins: That's correct.

Justice Potter Stewart: The School Board of Columbus was maintaining and -- a school system that was illegal, incidentally, under the law of Ohio and also, most relevantly here, under the Constitution of the United States, as of the time the lawsuit was filed, isn't it?

Doesn't it -- didn't --

Mr. Thomas I. Atkins: That's correct.

Justice Potter Stewart: -- had to be that?

Mr. Thomas I. Atkins: That's correct, and our -- and we believe the conclusion reached by the court, both courts below, was that because --

Justice Potter Stewart: First of all, what's your answer before you get too far away from --

Mr. Thomas I. Atkins: Yes.

Justice Potter Stewart: -- my question, how many schools at that time were all one-race schools?

Mr. Thomas I. Atkins: All one-race schools, I don't know the specific number.

That was not the claim made by plaintiffs that they were all one-race schools.

Justice Potter Stewart: If it's a dual school system, I think -- I should suppose that would be rather relevant evidence.

I mean, if the (Voice Overlap) --

Mr. Thomas I. Atkins: Yes, but this was before the court and it is in this record before the court in the appendices.

I don't happen to recall the specific number of schools but the claim made by the plaintiffs was that the system was segregated because the number of specific segregative actions taken by the defendants, unremedied, infected a substantial portion of the Columbus school system at the time of trial.

That was the claim and it was a claim which, on the basis of the record evidence before it, the court credited it.

We believe the evidence in this case will support a finding that -- and the brief sets it out more fully than I will attempt to do here at least 77 specific constitutional violations affecting at least 149 schools doing the part -- during the period of time covered by the court's analysis.

This is not a case --

Justice Potter Stewart: Well, the -- but the --

Mr. Thomas I. Atkins: -- of isolated instances.

Justice Potter Stewart: The relevant time is the time when the lawsuit was filed.

Mr. Thomas I. Atkins: I understand.

Justice Potter Stewart: And the claim had to be that --

Mr. Thomas I. Atkins: Yes, sir.

Justice Potter Stewart: -- as of that time --

Mr. Thomas I. Atkins: Yes, sir.

Justice Potter Stewart: -- the Columbus School Board was administering an officially segregated system.

Mr. Thomas I. Atkins: I understand.

And at the time of trial --

Justice Potter Stewart: And I would suppose that evidence quite relevant to that was how many schools, as of that time were all-white and all-black.

Mr. Thomas I. Atkins: The evidence at the time of trial showed as I recall the statistics, that 70% of the black students then in Columbus elementary schools were in schools which had been mentioned by record evidence before the District Court as having been specifically impacted by segregative activity.

Justice Potter Stewart: Of course that doesn't answer my question at all, does it?

Mr. Thomas I. Atkins: I understand.

I've already answered the question to the extent --

Justice Potter Stewart: You don't know.

Mr. Thomas I. Atkins: I can --

Justice Potter Stewart: You don't --

Mr. Thomas I. Atkins: -- by saying I don't know the specific --

Justice Potter Stewart: Right.

Mr. Thomas I. Atkins: -- number of schools.

Justice Potter Stewart: Alright.

Mr. Thomas I. Atkins: I didn't count that.

But that information was before the courts below as it is here.

We find the effort by the petitioners to suggest that this Court should disregard the remedial principles that have so clearly and we think consistently set forth to be a claim which should be rejected, a plea which should be rejected by this Court.

We believe the record shows that both the District Court and the Court of Appeals with full regard to the teachings of this Court evaluated the evidence to determine, first, the scope of impact from the violations which had been committed.

Secondly, the extent to which the defendants carried the burden this Court has imposed to show that other segregation which existed was not also the result of their impermissible activity.

And third, to articulate a remedial plan formulated by the defendants capable of addressing the full reach of the violation.

We believe that has happened and we think the efforts on the one hand to characterize the record as a record showing only isolated instances.

On the other hand, to ignore the substantial basis for the District Court's finding of a pre-Brown dual system to ignore the continuing segregative activity this Court -- the courts below found to have been carried out by these defendants, specifically through the use of optional zones and discontiguous areas not solely the use of construction but including that by the faculty and administrative assignment policies they created and carried out.

We believe on that record, the remedy ordered below is appropriate.

And we ask this Court to affirm that remedy and to permit the students in Columbus to receive for the first time in a century a fully adequate and fully constitutional education in the public school systems because the record is clear, if you don't permit that to happen, the petitioners will certainly not make it happen.

We have no place to go from here.

We cannot go back there expecting a difference from the patterned behavior which has up to this point been proven and found.

And we ask this Court, we're approaching the 25th anniversary of the Brown decision.

In Columbus, it hasn't meant a thing and we ask this Court to send Brown to Columbus.

And I thank you very much.

Argument of Drew S. Days, III

Chief Justice Warren E. Burger: Thank you Mr. Atkins.

Mr. Days.

Mr. Drew S. Days, III: Mr. Chief Justice and may it please the Court.

Before I turn to matters that I want to specifically address in my argument, I'd like to try to answer Mr. Justice Stewart's question with respect to the state of segregation at the time that this case was brought to trial.

At the time of trial the statistics reflect that the district was 32% black, 70% of the black children attended schools that were 80% are better and 50% of the schools were 90% of one race or the other.

So there was a high degree of racial segregation.

Justice Potter Stewart: That really doesn't answer my question either, does it?

Mr. Drew S. Days, III: Well, I was simply trying to assist the court based upon the record.

Justice Potter Stewart: The schools that were involved in Brown against Board of Education were all-black schools and all-white schools officially, weren't they?

Mr. Drew S. Days, III: That's correct.

Justice Potter Stewart: Were there any of these in Columbus?

Mr. Drew S. Days, III: There were virtually all-black schools in Columbus at the time of trial.

Justice Potter Stewart: Were there any of the kind that were dealt with in Brown against Board of Education?

Mr. Drew S. Days, III: I would think not because of the record in this case which is that there was no state statute in effect at the time.

Justice Potter Stewart: Well, that's -- what I meant is, does the record show in this case?

Mr. Drew S. Days, III: The record in this case shows that it was not the type of complete segregation that was in effect in --

Justice Potter Stewart: And that was what was involved in the Brown case.

Mr. Drew S. Days, III: That's correct.

Justice Potter Stewart: And you would agree, I suppose, General Days, would you not, that it's pretty well-established that what the constitution requires is a school system that's racially neutral, that no child and no parent of that child has any constitutional right to attend a particular school with any particular race or racial balance.

Mr. Drew S. Days, III: That's correct Your Honor.

I think it's also helpful to understand that while there were some schools in the district at the time of trial that were majority black and majority white, they reflected a continuation of a pattern that was in effect in 1954 when the court found that five schools were 100% all-black, not only in terms of their student body but their faculty.

Justice Potter Stewart: Oh, I suppose if you went back to 1854, you could find that there were no schools for Negros at all.

Mr. Drew S. Days, III: I think that's probably true.

Justice Potter Stewart: And that all of the schools were 100% white.

Mr. Drew S. Days, III: I think that the information with respect to the condition of the schools in 1954 reflects the fact that there was an expressed constitutional responsibility on the part of the Board as of 1954 to try to dismantle a system that was for all intents and purposes, dual given the totality of the circumstances.

But what I'd like to turn to is really --

Justice Thurgood Marshall: Mr. Days, before you get back.

Mr. Drew S. Days, III: Yes?

Justice Thurgood Marshall: You didn't mention teachers.

Mr. Drew S. Days, III: Teachers?

Justice Thurgood Marshall: Weren't all Negro teachers exclusively in Negro schools?

Mr. Drew S. Days, III: That's correct.

I think there was one exception to --

Justice Potter Stewart: At the time this lawsuit was brought?

Mr. Drew S. Days, III: No, not at the time that this suit was brought.

Justice Thurgood Marshall: That's 1954.

Mr. Drew S. Days, III: In 1954.

But of course, at the time that this suit was filed, the Columbus School Board had not dismantled the system that involved racial assignment of teachers.

There was none until 1974, that is a year after this suit was filed, that the Columbus School Board finally started assigning teachers, not based upon their race but based upon neutral principles.

In our view, the Court of Appeals correctly applied the principles of Dayton in view of its determination that a system-wide violation existed and Mr. Porter has indicated here today that he accepts those findings for purposes of this argument.

Therefore, Columbus is a remedy case.

In holding that judicial remedies must be addressed to the incremental segregative effects of a school board's discriminatory policies, Dayton I did not establish new principles, we would argue.

Rather, it reiterated the subtle precept that a remedy must be tailored to cure the condition that offends the constitution by eradicating the effects of that violation.

When there have been only isolated and sporadic acts of school board discrimination affecting a limited number of schools or students, a similarly limited remedy is appropriate.

This is what we understand to be the teaching of Dayton.

On the other hand, where there has been a general policy of discrimination in the operation of a school system as a whole pervasively eliminating whatever opportunities existed for substantial racial integration, a system-wide remedy will generally be required.

Justice William H. Rehnquist: Mr. Days, what factors does the court consider or what findings ought it to make in distinguishing between the two types of cases that you've just described?

Mr. Drew S. Days, III: Mr. Justice Rehnquist, I think that's an issue that was not directly addressed in the Dayton decision.

It does not address what we think is the central issue here, which is the proper allocation of the burden of proof at the remedial stage when a court must enter a decree that eliminates the discriminatory patterns, the root and branch.

We think that based upon the teachings of Swann and Keyes, the burden of showing to what extent the system-wide remedy is inappropriate falls upon the school board.

Keyes and Swann established that there is a rebuttable presumption that school board practices that have been system-wide have a system-wide effect.

It presumes that the discriminatory practices have achieved their full potential in the school system.

Justice William H. Rehnquist: Well, but how -- regardless of the presumptions, what is the issue?

Mr. Drew S. Days, III: What is the issue?

Justice William H. Rehnquist: Yes.

Mr. Drew S. Days, III: It seems to me, the issue has to be a showing by the school board of ways in which its own discriminatory pattern did not in fact have an impact upon specific schools or specific areas of a system, but that burden falls upon the school board.

Justice William H. Rehnquist: Well, do you say that if you proved even one isolated segregated instance that that would shift the burden to the school board, and the school can -- schools district consisting of 176 schools like this, to show that none of the others have been affected?

Mr. Drew S. Days, III: We do not contend that.

Justice William H. Rehnquist: Well, then where is the tipping point?

Mr. Drew S. Days, III: Well, the tipping point is when the court finds that there is a system-wide violation, that is, where the discriminatory practices infect the entire system.

Justice William H. Rehnquist: In how -- what question does it ask itself to make that determination?

Mr. Drew S. Days, III: Well, I would suggest, Mr. Justice Rehnquist that it is not for the court to ask questions of itself.

It is for the school board to make showings of ways in which, for example, the racial assignment of faculty did not have an impact upon certain schools.

But, you've said if there is just one school and one isolated thing, the burden doesn't shift.

It's not up to the school board and that --

Mr. Drew S. Days, III: That's right because, by definition, if it's an isolated violation then one can easily determine -- a court can easily determine what the remedy will be.

Justice William H. Rehnquist: So at what point does the burden shift?

Mr. Drew S. Days, III: The burden shifts when there's an establishment of a system-wide violation.

Justice William H. Rehnquist: And --

Mr. Drew S. Days, III: And I think if we look at the record in this case where the Court pursued questions of whether faculty assignments were discriminatory, whether citing policies were discriminatory, whether optional zones and discontiguous zones were discriminatory, once it arrived at a judgment that the system was segregated, then the burden shifted to the school board.

And in determining what constitutes a system-wide violation, courts really have to look to the decisions of this Court.

We think that it's appropriate after Dayton to continue to believe that the burden for showing the incremental segregative effects should fall upon the school board.

If there is a risk of uncertainty, it should not be borne by the victims of illegal action.

This is particularly applicable in cases such as this where plaintiffs seek to vindicate rights that are at the core of the Fourteenth Amendment.

The victims of purposeful school segregation are entitled to a remedy that eliminates the effects of discrimination root and branch.

And clearly a system-wide remedy would achieve that end because it would remove the racial identifiability of the dual system but it would also visibly rectify the stigma of inferiority which is indeed the product of pervasive violations.

If a school board wishes to contend that a less inclusive decree would purge all taints of its proven system-wide racial discrimination, it has the burden of showing exactly what that limitation entails.

In this case, the Columbus Board did not carry this burden.

As the trial court stated, defendants had ample opportunity at trial to show, if they could, that the admitted racial imbalance of Columbus public schools is a result of social dynamics or of the acts of others for which defendants owe no responsibility.

This, they did not do.

In our estimation, given the establishment of a system-wide violation and the failure on the part of the Columbus School Board to show why that system-wide violation did not warrant a system-wide remedy --

Justice William H. Rehnquist: But General Days, Judge Duncan said he wouldn't even attempt to consider the influence of housing.

What other social dynamics could the school board have called to his attention?

Mr. Drew S. Days, III: Judge Duncan, when he issued the statement that Your Honor quoted earlier, was of course operating without the guidance of Dayton.

That was a March opinion and of course Dayton came down several months later.

After the Dayton decision came down, I think the trial court understood that there might be a variety of considerations, but the school board had that burden.

And I think that as this Court has indicated in Swann, where there are certain one-race schools that remain after there has been a showing of a violation, the school board has to come show -- forward and show why those one-race schools do not reflect the continuation of the dual system.

I think what this Court's decisions have indicated is that these types of decisions have to be made on an ad hoc basis on a case by case basis given the circumstances of that case.

And, given --

Chief Justice Warren E. Burger: Did Swann also make it as clear, very clear, that there was no constitutional requirement of racial balance to reflect the communities?

Mr. Drew S. Days, III: That's correct.

Chief Justice Warren E. Burger: And we said in Swann that if that was what we found we would've reversed.

Mr. Drew S. Days, III: That is correct.

Chief Justice Warren E. Burger: We would disapprove what the District Court has done.

Mr. Drew S. Days, III: That is what Swann says, Your Honor.

Chief Justice Warren E. Burger: Your time has expired, Mr. Days.

Mr. Drew S. Days, III: Thank you, Your Honor.

Justice William H. Rehnquist: Mr. Days, could I ask you one more question?

The Government has briefed both these cases together and -- can we assume from that and from the comment on page 44 of your brief that you don't regard it as significant that Judge Duncan's findings were affirmed by the Court of Appeals and Judge Rubin's were reversed?

Mr. Drew S. Days, III: I think there is a significance, Your Honor, but I don't think one that should have great consequence because I think, in the Dayton case, the Court of Appeals had had a great deal of experience with the facts, had gone through the record on several occasions.

So to the extent that the Court of Appeals made factual determinations itself, I believe that those findings should be upheld by this Court.

Justice Byron R. White: Well, is there some authority around from Courts of Appeals entering their own findings when they set aside District Courts' findings, finding them unsupported by -- as fairly erroneous?

Mr. Drew S. Days, III: Mr. Justice --

Justice Byron R. White: And --

Mr. Drew S. Days, III: -- White, I --

Justice Byron R. White: Is there some authority for that?

Mr. Drew S. Days, III: I don't have that authority at the tip of my tongue, Mr. Justice White, but I think, as a general matter, Courts of Appeals would remand for further determinations using proper principles, but I think it is not unusual nor irregular for the Court of Appeals under the circumstances of a case such as this to make its own determinations.

Chief Justice Warren E. Burger: Can you suggest any one case in which that's been done, Mr. Days?

Mr. Drew S. Days, III: Well, I recall that in the Fifth Circuit Court of Appeals in the Austin case, at several earlier stages, the Court of Appeals made its own determinations based upon the record of facts that were available to it.

So, we don't have a Court of Appeals either there or here making determinations outside the record but simply drawing from the record facts the types of deductions that the case law wants.

Thank you.

Chief Justice Warren E. Burger: Very well, thank you.

Mr. Porter, you have two minutes left.

Mr. Drew S. Days, III: Yes, Your Honor.

I may have created some confusion.

We are not accepting the statements of the District Court concerning system-wide liability or the need for system-wide remedy, which simply those violations for the purposes of this.

That's all I have, Your Honor.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.