Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT R. FREEMAN, ET AL., Petitioners v. WILLIE EUGENE PITTS, ET AL.

No. 89-1290

October 7, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:07 a.m.

APPEARANCES:

REX E. LEE, ESQ., Provo, Utah; on behalf of the Petitioners.

GENERAL KENNETH W. STARR, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioners.

CHRISTOPHER A. HANSEN, ESQ., New York, New York; on behalf of the Respondents.

PROCEEDINGS

10:07 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 89-1290, Robert Freedman v. Willie Eugene Pitts.

Mr. Lee.

ORAL ARGUMENT OF REX E. LEE ON BEHALF OF THE PETITIONERS

MR. LEE: Mr. Chief Justice, and may it please the Court:

The two questions presented by this case are squarely and cleanly framed by the district court's findings of fact. Since 1969, the DeKalb County School System has been subject to a Federal desegregation order formulated principally by the Department of Health, Education and Welfare, and containing two core features: neighborhood school system attendance zones and the immediate and complete abolition of all racially -- of the six racially identifiable schools that existed as of 1969.

Beginning almost immediately after the entry of that order, DeKalb County, which borders Atlanta immediately on the east, experienced population shifts described by one expert as one of the most largest and most rapid ever observed anywhere. So that from 1970 through 1986, the percentage of black students served by this school district increased from slightly over 5 percent to almost 50 percent, with a disproportionately high concentration in the southern part of the county.

The district court found, in response to petitioners' request to be relieved of further judicial relief under the 1969 order, that the racial imbalances which had resulted in the schools were "the result of demographic shifts" which could again, quote -- which again, quote, "were not caused by any action on the part of the DCSS."

QUESTION: Well, you found for a time there was a racial balance?

MR. LEE: That is correct, until such time as this racial -- as this -- these demographic changes came in.

QUESTION: How long was that? Did it start --

MR. LEE: Almost immediately. It started and has just continued since that time, and it continues today.

QUESTION: But there's no question that there was racial balance --

MR. LEE: But there was racial balance in the beginning.

QUESTION: -- as soon as there was neighborhood schools --

MR. LEE: That is correct. Actually this was a very clean approach that HEW took. That was really all that was needed. Unlike most of the southern districts, DeKalb was able to just eliminate those six black schools, which had always been the principal problem, and then that with the neighborhood school zones. But the subsequent racial imbalance came about as a result of the demographics.

QUESTION: Would you agree that the school district had the obligation at the outset in 1970-71 to correct that imbalance?

MR. LEE: Yes. And I think to leave it in place for a time to see what it was that might happen.

QUESTION: So is what you are saying that there is really at least a two-phase aspect to the remedial period: a primary phase in which there must be racial balance regardless of the cause, plus a disengagement phase that follows it, and that you are now in the disengagement phase? Does that summarize what you are going to tell us?

MR. LEE: What we're saying is that there was compliance with the order as of 1969. The court, in fact, determined that for a time there was what you would under any circumstance desegregation. But then later on, there were these demographic shifts, over which the district court said we had no control, that changed the racial mix. But not --

QUESTION: And yet there was total segregation for 20 years after Brown.

MR. LEE: Almost, yes.

QUESTION: To 1966.

MR. LEE: Yes, that is correct.

QUESTION: Mr. Lee, did the district court consider the possibility that the demographic changes in the seventies were attributable somehow to racially identifiable schools in the district?

MR. LEE: As I read his order, that is simply not consistent with any of the findings that he made. What he said was in essence --

QUESTION: But no finding really dealt with that. So we're not sure?

MR. LEE: No, it happens that he did not make that specific finding. But what he did say was that regardless of whether the school district had taken the steps that years down the road the respondent said he should have taken, that it wouldn't have made any difference in as far as the racial mix in the schools was concerned.

QUESTION: But you agree that in the initial period when there is imbalance, even if that imbalance is caused by demographic factors, that the school district had a duty to realign the attendance zones to cause racial balance to the extent practical?

MR. LEE: Well, that really wasn't this case. Because in this case we were in balance within a short period of time after the entry of the order. But the question that you're asking, which is a hypothetical in this case, is a much more difficult one. And I think it would depend on what the findings of fact happened to be in that particular instance. But I think -- in the majority of instances, I think the answer would be yes, there probably would be a period of time in which it would continue.

But the point is that here, under those circumstances, the order has existed for 22 years. And the district court, consistent with these findings that it made, retained jurisdiction over two issues which are not before the Court today, namely, faculty assignment and allocation of resources. But it held that it would order no further relief in four other areas. And one of those areas in which there was to be no further judicial supervision was student assignment.

The court of appeals did not reject any of the district court's findings as clearly erroneous. Rather, its reversal was based on two legal prepositions. The first, contrary to the district court, the court of appeals squarely held that the school district is legally responsible for what it referred to as segregation caused by demographic changes, so long as they occur during the pendency of a desegregation decree.

And second, the Eleventh Circuit held that a school district cannot attain relief from judicial supervision in one respect without qualifying at the same time in all six of the so-called Green factors, and for a period of at least 3 years.

It's important to clarify at the outset that this is not a case like Dowell last term. This is not a case in which we are asking the Court for any present ruling that we have reached the end of our judicial remedial road.

QUESTION: But you are asking that we say that with respect to some of the so-called Green factors, that it apply incrementally some how. And I'd like to ask whether you think the Green factors represent distinct constitutional violations or is there a single violation that we're dealing with? I think this is a concern.

MR. LEE: Yes, it is an important question, Justice O'Connor. It's more helpful to me to look at those as kind of guidelines, as indicators among the things that you might look at, but it is a single indicator.

And that is why I regard that second issue as much more important -- much less important, and really following from the first. Because what we are really asking for, the only thing we're asking for from this Court is relief from a new expanded order imposed after we had been operating under the old one for 16 years, an order which said by its terms that it was to be final and terminal. With the new expanded features, greatly expanded, aimed exclusively at features -- at circumstances over which we have no control and which we did not cause.

QUESTION: Mr. Lee, may I ask you a question here? Supposing, first of all, I assume you don't challenge, or maybe you do, the figures that the red brief contains in the early part of the brief that are not covered by the findings of fact dealing with the period between '69 and '75. And during those early years, there's a trend of increasing the number of more than 50 percent black schools: two in '69, two in '73, three in '71, and so forth.

My question is in 1969 or '70, would it have been the duty, or would the district judge have had the power to prevent that increased concentration, even if it were attributable entirely to demographic changes?

MR. LEE: I think -- excuse me.

QUESTION: That's the whole -- that's the question.

MR. LEE: Yes. I think that would depend on the relevant findings of fact that would have been made at that time. Now, in fact, we did not go back --

QUESTION: Well, I'm assuming the relevant finding of fact is (a), it is attributable to people moving into the county from Atlanta, and (b), there will be as a result of that change, racially identifiable schools only a year or two after the decree was entered. And they asked for relief right there.

MR. LEE: I think I would be arguing the same thing, particularly if we could have had the additional finding that we have here that there's little that we could have done that would have made a difference.

Both of the court of appeals' rulings are squarely inconsistent with the precedents of this Court. With regard to the first, the issue of causation, starting at least as early as Swann and very consistently thereafter, this Court has made it very clear that Federal judicial authority is limited to curing the constitutional violation which gave rise to the Federal court's authority in the first place.

There is no better way to say it than this Court said it in Milliken II, and I quote very briefly, "Federal court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.

QUESTION: Well, the constitutional violation is that this causes a stigma to the entire black community. And you're telling us in answer to me and to Justice Stevens, that even if you have racially identifiable schools within 1 year after a decree is entered and there has been 1 year of balanced, that that's the end of the Court's concern. But it seems to me that the nature of the violation extends beyond that period.

MR. LEE: That proposition, Justice Kennedy, that it is the stigma that is the controlling factor, has been considered by the Court on several occasions and never commanded a majority of the Court. If that all by itself, the kind of stigma -- the only kind of stigma that you can have in this case, which is that there still is racial imbalance. That's just another way of saying that there is racial imbalance. That's what the Eleventh Circuit says, that that's what you have to cure.

Now, if that is the case, there have been some erroneous decisions that have been entered in the past, including this Court's decision in Pasadena, including Judge Rubin's decision in Houston, and including the decision about 12 years ago in Atlanta itself, in which you had gross racial imbalance but you couldn't trace that to anything -- any unconstitutional conduct that the -- of which the school board had been guilty.

QUESTION: But isn't it plausible to say that the stigma is also controlled by the time that's elapsed so that the stigma that existed, say, in 1971 is much more clear to the community, is much more palpable, much more tangible than in 1991?

MR. LEE: And those can be difficult factual questions. Fortunately for the Court and for us in this instance, we have factual findings that deal squarely with that issue. And actually what is involved here is the basic distinction between de jure and de facto segregation.

All across the country there are instances in which there are racial imbalances, from Saginaw, Michigan, to Cincinnati, Ohio, Houston, and probably most significant of all for these purposes, Atlanta itself, our next-door neighbor, where it's actually considerably worse than it is in DeKalb County.

But the consistent approach has been that what you look to, and there have been at least a half-dozen instances in which the Court has said that, is who caused it. Was this a result of the constitutional violation. You will not have very many cases in which that issue is posed -- which a legal issue is posed so cleanly because of the cleanliness of the findings of fact.

There is one case that really squarely disposes of both issues, and that's Pasadena. The facts on both questions were remarkably similar. In Pasadena, as in this case, you had a Federal court order entered which resulted in a -- what the Court called a racially neutral system of student assignment. And then you had de facto changes in the demographics that occurred after that time.

With regard to the first question presented, the Court said, and I quote, "That these shifts were not attributable to any segregative actions on the part of the petitioners." And they did so on findings that were less clear than we have here.

And with regard to the second question, there was a disagreement in Pasadena over whether the school board's compliance with one portion of the plan dealing with hiring and promoting teachers, but the non-achievement of that particular factor, the Court said, did not, quote, "require the district to rearrange its attendance zones."

In short, what Pasadena held was that relief with respect to student assignment need not await the time that the district is entitled to relief with respect to hiring and promotion. And that's this case.

I would like to say just a short word about the fundamental principals of federalism and the efficient allocation of educational resources that are involved in this case. The Court said in Dowell that Federal supervision of local school systems is intended as a temporary measure. And what that recognizes is that, aside from the need to cure constitutional violations, with which we're all in agreement, we're better off if our nation's school systems are run by school boards rather than Federal courts.

And to paraphrase Justice Brandeis in the New State Eyes case, school systems are among our Nation's most effective laboratories. Yet the safest thing for a school board, subject to a judicial decree to do in response to an innovative idea, is absolutely nothing. And that's what this case really comes down to.

For 22 years, the school district has complied with the neighborhood attendance zone that was set by HEW. In that time there have been no further violations, no hint of recalcitrance, and as the district court said, we have a school board and administration who, and these are the district court's words, "are trying to obey the law." The racial imbalances that exist in DeKalb County can no more be traced to a constitutional violation than they can in Chicago or Philadelphia or Atlanta.

Yet my clients are now told that they will continue under judicial supervision for who knows how long, and also, that they may be subject to such radical and greatly expanded impositions as drastic gerrymandering of school zones, busing, and that even the neighborhood plan is not inviable.

Mr. Chief Justice, unless there are questions, I'll save the rest of my time.

QUESTION: Thank you, Mr. Lee.

General Starr, we'll hear now from you.

ORAL ARGUMENT OF KENNETH W. STARR ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

MR. STARR: Thank you, Mr. Chief Justice, and may it please the Court:

In light of what has been said, let me focus on two aspects of the discussion. The first is causation. Causation, we believe, is a critical part of the inquiry. That is to say, as Mr. Lee indicated, this Court has said quite frequently that a Federal court remedy is excessive if it goes beyond seeking to cure the constitutional violation. The 1969 decree that was entered into here was a comprehensive plan. It was agreed to by all the parties. As Mr. Lee indicated, this was a plan that was formulated with the guidance of HEW. It was a plan formulated with the guidance of this Court, the demand of this Court in Green, that plans be developed to work and to work now.

I think the critical thing about then the way this plan was carried out was that the school board was found by the district court to be acting in good faith. It sought to achieve the maximum amount of desegregation that was practicable. It instituted voluntarily two programs in the wake of the demographic changes that swept over DeKalb County: the majority to minority transfer program, which this Court identified in Swann as being a very important part of the desegregation plan. As soon as Swann came down, the school board voluntarily, with the plaintiffs' approbation, instituted such a plan, as well as a magnet school plan.

For 6 years there was silence in this case. Justice Stevens talked about the developments beginning in early 1970, but the plaintiffs did not come in to court to question the efficacy of the plan.

QUESTION: Suppose they had. What would have been your response to Justice Stevens' concern and mine as to whether or not there is an obligation in the immediate period after the desegregation plan is implemented to demographic changes? Is there a continuing duty to balance in this primary remedial phase -- initial remedial phase?

MR. STARR: No. If the demographic change cannot be laid at the feet of the school board, the answer is no. This Court answered that question no in Pasadena. In a very real sense --

QUESTION: In Pasadena there had been desegregation in place for a number of years.

MR. STARR: The plan as I -- I don't want to quibble about the facts in Pasadena, but the demographic changes in Pasadena began very promptly after the plan went into effect in 1970, so that in 1971 and '72, very early on, there were in fact racially identifiable schools. The key is not whether there is racial identifiability. The key is what is the action of the school officials. Have they in fact contributed to the creation of racial identifiability through racist assignment policies or other forms of policies.

But if there is not causation, then the school board gets to look at the decree. The decree is a final judgment. At page 61 of the joint appendix in this case, this decree, that everyone agreed to, stated by its terms that this is a final and terminal plan of desegregation.

QUESTION: But Mr. Starr, if I understand your argument, it really wouldn't have mattered if the plaintiff had objected violently all along the line because they wouldn't have been entitled to any protection from demographic changes not caused by the dual system.

MR. STARR: If they had not been -- because it may be, and I agree with Mr. Lee, that the facts are terribly important in each of these cases. At a theoretical level, I have to say that by virtue of the nature of Federal judicial power and the power that the courts enjoy under the equal protection clause, that power must go to remedying a violation. We do have to identify a violation.

QUESTION: So to boil it down, what you're saying is they really wouldn't have had a valid argument to advance even if they had argued from the very beginning that something should have been done to prevent the creation of a lot of racially identifiable schools shortly after the decree was entered if they were caused by demographic changes.

MR. STARR: Justice Stevens, I --

QUESTION: It may well be right, but that --

MR. STARR: Well, Justice Stevens, I think they should certainly be heard to say this plan was defective for the following reasons. It was reasonably foreseeable in light of the nature of this plan that this would have occurred. It is critical in these cases, and the United States fully --

QUESTION: I don't see why it would matter for the reasonably foreseeable because the thing that was foreseeable was not, under your argument, was not the consequence of illegal conduct.

MR. STARR: I think reasonable foreseeability is important because it goes to good faith. If the board was party to a decree that was not in fact entered into in good faith, if it felt --

QUESTION: Well, why wouldn't it be in good faith? If they said well, we can anticipate a lot of people are going to move into the county because there is a lot of business developing here and so forth, but that's not our problem.

MR. STARR: I think they could do that.

QUESTION: So I don't see how foreseeability changes it a bit. Suppose they foresaw the whole thing.

MR. STARR: They could very well say our duty is to treat all students alike and not to treat them differently on grounds of race, and that we're entitled to have a proper and appropriate educational system as long as we don't engage in that. Now what we do have to do, and this is getting back to the point that seems to be of control -- of concern to the Court, is to dismantle that prior dual system.

And what does dismantling mean? I think it does mean getting at the Green factors, those six aspects of the school system, to make sure that no school is being essentially labeled by the stay as a --

QUESTION: Well, are you going to look at those factors incrementally? Mightn't one factor need remedies in other areas of the factors to make it all come into place? If there's then initially a single violation, don't we have to see that all the Green factors are met for a period of time?

MR. STARR: Oh, I don't think so. Footnote 5 in Pasadena looks very strongly the other way. So does the learning of three United States courts of appeals that have focused on this and this is why. The plaintiffs in this case readily agree, they conceded at the district court level, that in three of the Green factors all remnants of the prior de jure system had been entirely eradicated. It would be passing strange, and in our view, would be a violation of the limitations of judicial power under the equal protection clause for a remedy now to be directed at those three integral parts of a school system that had been found to be completely desegregated.

QUESTION: Even if that were necessary in order to achieve the requirements on the other two factors that haven't been met?

MR. STARR: If there were a finding that that were necessary -- I would -- I certainly would agree if it were necessary in order to achieve the dismantling. That would be quite a different matter. But what the Court does have the comfort of in this case is the district court's finding at page 45a of the petition appendix, that nothing that this school board could have done would have made a difference by -- by virtue of the overwhelming demographic shift in DeKalb County.

QUESTION: What you want us to hold, then, that once one of the Green factors has been satisfied, that it simply should be a presumption against further orders with respect to that factor?

MR. STARR: I wouldn't put it in that way. I do think that it does in fact raise a question that the school board might very well say we have completed our duties in that respect, nothing more needs to be done. And then the critical judgment, and it is a judgment by the district court, is whether that board is acting in good faith.

Here, the court has the benefit of two judges having concluded that this school board has been acting in good faith since 1969. Two judges who have had this case before them have said this is a school board that is seeking the interest and welfare of all of its students. And the two areas where there is still work to be done are areas that the school board already believes it has corrected, and indeed are rather technical requirements -- the Singleton requirement and the like -- in terms of the seamless web point, racial identifiability of the faculty.

It's important to remember that this school board has desegregated the faculty. Not a single school in this district has had a majority black faculty since 1969. The Fifth Circuit law, as this Court is well aware, imposes a very rigorous requirement, the Singleton requirement, with respect to ratios in each school. That ratio can be met by the exercise of something that this school board did not want to do. It did not want to engage in the mandatory reassignments of teachers. It has now been told by the district court you must do that. You should have been mandating -- even though the teachers didn't want it, you should have been mandating that they go to different schools, and you have to take additional steps in ensure that expenditures per capita are entirely equalized. This obviously remains for the district court on remand.

The point is this: those points did not give rise to any indication at all that there was bad faith.

I thank the Court.

QUESTION: Thank you, General Starr.

Mr. Hansen, we will hear now from you.

ORAL ARGUMENT OF CHRISTOPHER A. HANSEN ON BEHALF OF THE RESPONDENTS

MR. HANSEN: Mr. Chief Justice, and may it please the court:

There are three central and undisputed features to this case. First, the DeKalb County School District was intentionally segregated on the basis of race for as long as anyone can remember and up to at least 10 years after the decision in Brown.

Second, the district court found it's undisputed that the DeKalb School System has never been fully desegregated, that there remain vestiges of segregation even 15 years after the court -- after the school district was ordered to cure the problems, and 30 years after Brown.

And third, the schools in DeKalb County today remain both separate and unequal. One set of schools are attended by black students, who are disproportionately taught by black teachers who are disproportionately administered by black administrators, and those set of schools have fewer resources than the schools that are attended by white students, have white teachers, white administrators, and have more resources.

QUESTION: Excuse me, what do you mean by fewer resources?

MR. HANSEN: The district court found in looking at those schools that are disproportionately black versus those schools that are disproportionately white that you consistently find that less money is spent per pupil in black schools, that the teachers in the black schools have less experience than the teachers in the white schools.

QUESTION: I'm just wondering how that could be without a finding of discrimination. Is it just that -- I suppose, the principal factor is faculty salaries, and there are just teachers who don't want to move to other schools, so that you get more senior teachers in some schools. Is that the principal element?

MR. HANSEN: The district court suggested that was one element. It suggested there may also be something having to do with the age of the schools. But the district court said you could not explain inequality through just those factors. It said some of the disparity could be explained through those factors but not all of them. I think those factors can in part be explained by the fact that there are black schools in DeKalb County and white schools.

One of the consequences of continuing to have black schools for essentially all of the history of DeKalb County is that sort of inevitably leads school districts toward inequality. It inevitably leads to black schools at least being perceived as inferior, and in this instance, being treated as inferior by the school district.

Last term, in Dowell, this Court said that there were two questions to be asked in these kinds of cases. First, has the school district engaged in good faith compliance to the prior court orders. The district court found that in at least two instances that the school board has not engaged in good faith compliance. They were ordered in 1969 and again in 1976 to desegregate faculty and staff, and they had not done it even as of 1986, despite the repeated orders of the court.

Today, in those schools that are 80 percent black, the administrators are 60 percent black. In those schools that are 2 percent black, the administrators are 6 percent black. And faculty shows similar disparities.

QUESTION: Could I ask what if it was unquestioned that the faculty had been appropriately desegregated and that resources were equal, but nevertheless, there was this student imbalance that was -- that had been going on for years, almost immediately after the decree was entered? What then?

MR. HANSEN: Well, the obligation of the school board in 1969 was to break the pattern of segregation. And that pattern includes the coincidence of faculty and staff segregation, and so on, going along together.

QUESTION: Well, let's assume that if the staff and the resources are all -- have all been solved, and you think the school board, nevertheless, has a constitutional duty to reassign students to counteract the demographic changes?

MR. HANSEN: I don't think the school district has an obligation to counteract purely demographic changes, and that's not what we're suggesting. If faculty and staff assignment patterns had been desegregated in 1969, if inequality had been desegregated in 1969, and if the school district had maintained a desegregated school system for some period of time in the 1969 to 1973, '74, '75 period, I think we'd have a very different case.

QUESTION: Well, you think the school board would have been required to reassign students to counteract demographic changes for at least 3 years.

MR. HANSEN: Well, the Solicitor General, in their brief suggests 3 years, and we agree.

QUESTION: Is that right?

MR. HANSEN: Yes. Yes, it is. Yes, it is.

QUESTION: So there is a constitutional duty to counteract demographic changes.

MR. HANSEN: The phrase that's used in the Fifth and Eleventh Circuit to describe this phenomenon is one swallow does make a spring. Hitting desegregation for one instance doesn't mean you counteract 50 or 100 years of segregation.

QUESTION: Well, I couldn't answer my question by quoting that.

MR. HANSEN: I thought maybe I could, though.

(Laughter.)

QUESTION: Well, all you had to do is say yes.

(Laughter.)

MR. HANSEN: That wasn't as eloquent as one swallow, which is not my phrase.

In order for the school district to prevail in this Court, it must win on both of its propositions: first, that the Green factors have to be looked at as totally separate entities, and second, that there's no causal link between current segregation.

QUESTION: Well, is that, strictly speaking, true? The district court found the current violations to be only with respect to per pupil expenditure and the assignment of the teachers and principals. Nevertheless, the Eleventh Circuit ordered the district court to look at all kinds of things like gerrymandering of school zones and reorganizing grades and possibly busing. And it certainly would be possible to say that those remedies are more extensive than the violations to be cured, that there's jurisdiction in the district court, of course, but that nevertheless, the remedies have to be tailored to the problem.

MR. HANSEN: I don't think there's any question that remedies have to be tailored to the problem, but what the school board's argument rests on is the notion that the Green factors don't interact in any way, that they're separate and distinct conditions.

QUESTION: Well, I thought in response to my questions that we got some response that conceivably they may be interrelated and that the remedies, conceivably, could be.

MR. HANSEN: Well, I think the remedy has to be what cures the pattern of segregation that has built up. And if the faculty and staff assignments have interacted to create a pattern of segregation, then I don't see how you can involve a remedy that doesn't break that pattern in all the areas of the pattern.

QUESTION: But we don't have a finding to that effect.

MR. HANSEN: We do not have a finding. I think it is fair to say that the district court ignored the possibility that the Green factors operated in interaction. The district court does not address that question directly. And in the way he structures his opinion, he appears to be oblivious to the notion that they might interact together.

QUESTION: Well, the district court --

QUESTION: What do you mean by interact?

MR. HANSEN: Faculty -- if a school district assigns disproportionately faculty to one particular school, that says something to the community about what that school is. That may have an impact on the student assignment patterns that grow around that -- that school. In this case what has happened is every single one of these factors has operated in lock step. Every time there is a school that's disproportionately black by student assignment, it's also disproportionately black by faculty assignment, in some cases, anticipatorily.

QUESTION: Well, I know, but the -- at your first step, the school board has no responsibility and couldn't possibly have prevented these demographic changes which caused the student imbalance.

MR. HANSEN: Well, I'm not sure that's clear. At the very first step in 1969.

QUESTION: Well, that was the finding of the district court.

MR. HANSEN: It was the finding of the district court.

QUESTION: You may not be sure of it, but --

MR. HANSEN: Well, the district court in its finding on this regard is somewhat anomalous. He found that they couldn't have done anything to break this -- the pattern. He also at the same time found that if they had put in magnet schools or grade reorganization, it would have broken the pattern. It's hard to reconcile the district court's conclusion that Your Honor is citing with his findings which hint the other way.

QUESTION: Well, the court of appeals didn't upset any of his findings.

MR. HANSEN: The court of appeals did not upset any findings. But it's also hard to reconcile the district court's conclusion that the school district did nothing with the district court's earlier decision. In 1976, the district court found that between '69 and '76, in the area of student assignment, the school board was affirmatively taking actions that perpetuated the vestiges of student-assignment segregation.

QUESTION: But whatever they managed to do really didn't cure the problem, did it? Of student imbalance.

MR. HANSEN: They were making it worse. They weren't trying to cure it. In the period '69 to '75, the district court found in '76 they were making it worse. They weren't trying to cure it. And this is precisely the problem.

In the context of remedy where we've got a finding of liability here, the question isn't did they cause it after 1969. The question is did they cure it. This Court has held innumerable times that the question in remedy is did the district take actions that had the effect of desegregating the schools.

QUESTION: Well, you don't -- I gather that immediately upon the entry of the decree and as soon as neighborhood zones were created and the black schools were closed that there was not this racial imbalance.

MR. HANSEN: There was racial imbalance from the very outset. Prior to 1969, the black students were assigned to six all-black schools. After -- in 1969, 59 percent of the black students were assigned to seven schools that were disproportionately black. 83 percent of the black students in 1969 were assigned to a small group of 15 schools. And those schools had disproportionately black faculty, had disproportionately black staff.

QUESTION: So you disagree with your opponent that as of the date of the compliance with the decree, that there was -- that there was not an imbalance.

MR. HANSEN: That's correct. We do disagree on that.

QUESTION: Didn't the district court make a finding on that question?

MR. HANSEN: The district court made a finding on that question but then went on to say that the finding was irrelevant in some respects, in his view, because you couldn't just achieve compliance in one instant. You had to achieve compliance for at least a longer period of time.

QUESTION: Hadn't your clients also conceded at one point in the litigation that there was desegregation after the decree?

MR. HANSEN: No. There -- the clients -- we have consistently argued from the very beginning that there were disproportionately assigned schools even in 1969. The court does quote one, I think, very infelicitiously phrased sentence from the plaintiffs' trial brief, which uses the term desegregation. I think that was intended to say that we do concede that in 1969 the black schools themselves were closed.

But we do think that in 1969 the school district was confining black children to certain schools, it was assigning black faculty to those schools, and it was assigning black staff to those schools. And then we rely in part on the district court's --

QUESTION: Was there objection by the plaintiffs, then, to this decree in '69 because they felt it was inadequate?

MR. HANSEN: There was certain objection to the plan in 1969, but the court resolved that objection in the very first year in the favor of the plaintiffs. There was an argument about whether the final black school would be closed, and there was a debate about that in '69.

Plaintiffs did not raise objections. I concede plaintiffs did not raise objections in the period '69 to '74 or '75 when the motion was brought. I think that that's in part explainable by the -- by one of counsel having died. But it's also partly, I think, irrelevant. Either the black children in this district were entitled to a desegregation -- desegregated education or they were not.

QUESTION: Mr. Hansen, suppose you have a school district that is found to have been violating the law only in faculty assignment and in allocation of resources. It has not been assigning students to schools on a racial basis, but in fact, it has been assigning faculty and allocating resources on a racial basis. Would it be necessary when a remedy for that violation is imposed by the Federal court, that the remedy include student allocation?

MR. HANSEN: No. I think you would -- I think the Court would want to look at whether the faculty misallocation and the resource misallocation had had an effect on student assignment.

QUESTION: Okay. So the factors can hang separately. It depends on whether one factor affects another one.

MR. HANSEN: In the context of a school district that has never been intentionally segregated. As a matter of law, if we were talking about at school district that had never desegregated ever in its history on the basis of student assignment, then I think the factors can operate either in conjunction or separately.

If the question is are we going to remedy a school district that has intentionally segregated its schools, then, I think, almost presumptively, or almost inescapably, the factors have to be all remedied and the factors have to be seen together.

QUESTION: Well, I mean, is it presumptively or inescapably? If it's just presumptively, I would say the district court here considered it and the presumption no longer stands. He says we can remedy the two problems that still exist without affecting student assignment.

MR. HANSEN: I don't think the district court addressed this question. I don't think it addressed the notion that there was a presumption. And I don't think it addressed the interconnection.

QUESTION: It addressed the question implicitly. I mean, it certainly thought it was providing as much of a remedy as is now needed to end whatever discrimination there is. And it said it's enough to do it in just these two areas and not in the others.

MR. HANSEN: Well, again, we're -- this is -- it's an anomalous opinion because it doesn't say precisely that. It says that today and over the last few years there have been things that could have desegregated student assignment further that the district -- that the school district has not done. And it then reaches magnet schools and grade reorganization, both of which the district court says could have had a desegregative effect in the past if they had been used, both of which were not used by the school district under, what I understood this Court's precedence to be, that's almost -- that's enough.

But the district court then goes on to somewhat oddly conclude that even though they haven't taken all the steps they needed to desegregate, even in student assignment, they still have taken all the steps needed to desegregate. I find his conclusion puzzling in light of his own finding.

I also find his conclusion puzzling in light of the district court's findings in 1976 that the school district was taking actions, affirmative actions, between '69 and '76 that did perpetuate segregation even in the area of student assignment. And it's at that period where the massive, if you will, resegregation occurs in this case. In 1975, just a few -- 6 years after the entry of this order, 73 percent of all the black students were in 12 majority black schools. At that point, this was as segregated a school system as it can get, and in some ways, as segregated a school system as it is today. It was in that short period in the early seventies when the resegregation occurred.

QUESTION: Well, wait a minute. Segregated in that sense is not against the law. I mean, you're saying it was as segregated.

MR. HANSEN: Segregation purely as a result of demographics is not against the law. I concede that. But the district court found in '76 that the student assignment segregation in this district was not purely as a result of demographics. Now, the district court in '86 appears to ignore the -- its own '76 holding. I don't know how to explain that, but it does.

But in addition to that, I want to re-emphasize --

QUESTION: Of course, if we go on that, we -- this becomes almost a noncase, if you go on that finding that the school board is then causing imbalance in the school system deliberately.

MR. HANSEN: I think this -- if you go on that finding, I agree with the Court, it does become a noncase. But -- and I think there is ample in this record in order to reach that conclusion.

But I also think that the question in remedy, the question in a case where there's intentional segregation, as there was here, is whether --

QUESTION: Only the court of appeals didn't go on that thesis that you just proposed.

MR. HANSEN: Well, the court of appeals didn't explicitly --

QUESTION: The court of appeals decided on different grounds, and those are the grounds we're reviewing.

MR. HANSEN: The court of appeals did not explicitly do so. The court of appeals said, however, and I think that we agree and that's what we're proposing here, that this is a school district that has never effectively desegregated.

QUESTION: Well, is it your understanding that if the Eleventh Circuit's opinion is affirmed that the district court will then be under an immediate duty to direct the school board to take all steps necessary forthwith to have racial balancing throughout DeKalb County in student assignments?

MR. HANSEN: No, I don't think that. Yes, mostly, but not entirely. I think that if the district -- if the court of appeals is affirmed, I think the district court will be under a duty to break the pattern of segregation that exists in DeKalb County. I think that will include some aspects of student assignment.

Now, the district court found --

QUESTION: Well if it had been 1970, you answer to my question would have been yes, wouldn't it?

MR. HANSEN: Yes, it certainly would have been.

QUESTION: What's changed between now and 1970?

MR. HANSEN: I don't think anything has significantly has changed. I think --

QUESTION: All right, so then the duty is the same. Even though they are caused by demographic changes, there has to be absolute racial equality in student assignments by all means necessary to accomplish that end. Isn't that the reasonable and plausible interpretation of the Eleventh Circuit's position?

MR. HANSEN: I think that's a reasonable and plausible interpretation of the Eleventh Circuit's opinion. It's not the one I would adopt. I think the Eleventh Circuit was saying that under the circumstances of this case, it's clear that the school district did take actions that segregated.

It's also even more clear to the court of appeals, I think, that the school district had a duty to desegregate and that this has never been a desegregated school district. And I think the court of appeals was saying you have to look at the Green factors as an interconnected, interrelated pattern. And what we have to do is break this pattern.

And I think this court of appeals -- all the court of appeals was saying was what this Court has said in Columbus and even in Swann. You have to break the pattern of segregated schools in such a way that the black children of this county receive a desegregated education for some period of time in their lives. The court of appeals was saying that's never happened here and was relying on, I think, some of the findings of the district court in that regard -- magnet school finding and the grade reorganization finding and so on.

QUESTION: What do you do about Pasadena?

MR. HANSEN: I think Pasadena stands for the proposition that the district court can't readjust -- can't minutely readjust boundaries year after year after year after year indefinitely. I mean --

QUESTION: Even though there are some other vestiges that are still apparent? Is that right?

MR. HANSEN: That is not, I believe, what Spangler stands for, what Pasadena stands for. I think Spangler and the Pasadena case does not say that the vestiges can't be considered interconnected. It doesn't even sort of directly address that question. The only apparent vestige that appeared to remain in Pasadena, at least based on the Court's opinion, was in faculty hiring.

Faculty hiring is in fact somewhat different than faculty assignment. Because faculty assignment and student assignment and resource assignment and staff assignment all sort of go together to give you a segregated school system. Faculty hiring plays less a role in giving you a picture or a reality of a segregated school.

QUESTION: Would you say that is -- that wasn't even a vestige then, that had to be cured?

MR. HANSEN: I think faculty hiring can be a vestige, and I think it has to be cured. I think that --

QUESTION: Well, it wasn't cured in that case.

MR. HANSEN: It had not been cured.

QUESTION: And yet the Court said that the district court wasn't required and shouldn't have tried to keep up with demographic changes.

MR. HANSEN: Indefinitely into the future, that's what the Court said.

QUESTION: Or even right then.

MR. HANSEN: But in Pasadena itself, thereafter, the district court was involved in student assignment issues and in faculty assignment issues. The -- I don't think either the court of appeals or the district court in that case interpreted this Court's opinion to say that student assignment was forever -- inquiry into student assignment was forever barred, because I think that inquiry still needed to be made. All right, is there a pattern here and has this pattern been broken. And I think that it hadn't been broken in Pasadena.

QUESTION: May I ask another question about your theory of back in 1976. You say the earlier district court opinion indicates that the school board's actions intentionally contributed to the segregation in the schools. But supposing your view is that maybe it contributed marginally, may have affected maybe 5 percent of the assignment in some way, but 95 percent are still contributable to demographic changes. How do you bring that forward to today? What's the consequence? And if you say, you know, the basic problem still is demographic.

MR. HANSEN: I think the -- if the school board has contributed in part to the current segregation in student assignment, as well as the other areas, then I think that children in DeKalb County are entitled to a fully desegregated education. If that job is harder today than it was in 1969 or 1970 because of demographic changes in the district, that's the school board's own fault. They could have desegregated in '69, '70, '71. They could have given us a period of desegregated education in that period. If demographic changes occurred since then, it's not the children who should bear the brunt of that. It's the school district.

QUESTION: Do you think they were required to take that action by the terms of the actual decree that was entered or by the overriding obligation under the Constitution?

MR. HANSEN: Both. The precise decree that was entered indicated that in several areas they had to take specific actions -- for example, construction. The order said construction had to be used in the future to disestablish the segregated system rather than establish it. And in fact, they used construction exactly the opposite way. They closed schools in the middle of the district that would have been naturally desegregated and opened schools around the periphery of the district.

But I also think that in addition the original order said that you had -- couldn't discriminate against black children. And what we find today is that there is discrimination, unequal resources being provided to the black schools. So I think both by the terms of the decree and by general principles under the equal protection clause, I think the duty would have occurred in 1969 and the early seventies, and occurs -- remains in existence today.

This school district is not the first school district in history to have tried to take the various parts of a school system and break it into little pieces and look at each one separately. In 1965 in Rogers, the school district argued in this Court that it should be allowed to desegregate grade by grade, and the Court rejected that argument. In Keyes, the school district argued that it should be able to segregate geography by geography, and this Court rejected that argument.

In this particular case, in the district court, this school district argued it should be able to desegregate school by school. And the district court properly described that notion as ridiculous. Their argument with respect to the Green factors in this Court is really no different than the arguments that the others have made in the past and have been rejected by this Court. And that is that the condition that offends the Constitution is not a segregated school system, but it's little pieces of segregation, each of which are unrelated and not connected.

In our view, the -- in Keyes, this Court said that you look at the Green factors, quote, "considered together," unquote. That remains our view, that you look at the Green factors considered together and their interaction.

And what is striking in DeKalb County is that the Green factors did in fact go along together throughout the entire history of DeKalb County. For every single year, if a school was black by student assignment, it was black by faculty assignment as well. It was black by staff assignment as well. And at least for the last few years it's been unequal as well. And for every single year of this school district's history, if a school was white by student assignment, it was also white by teacher assignment, it was also white by staff assignment, and it got more resources.

In our view, the court should not -- should affirm the finding of the court of appeals. This Court shouldn't reward this school district that has delayed desegregating, giving the black children of this county a fully desegregated education, for almost 20 years. Instead, what the Court ought to do is affirm the court of appeals' finding and allow the black children in DeKalb County to finally have a desegregated education.

QUESTION: Counsel, there is some discussion in the record about subdistricting as a remedy that the board might have chosen. Can you explain to me briefly what that is? Could DeKalb County -- was the suggestion that DeKalb County just break itself into three and then proceed district by district?

MR. HANSEN: You can -- what a classic neighborhood school plan is is there are very tight little neighborhood schools and tight little boundaries around the school. If you take four or five neighborhood schools and consider that your sort of school boundary, then you can assign students. You see that as one school boundary and you can assign students sort of as a group within that. And it can have a desegregative effect.

QUESTION: But if that had been true, given the demographics, then southern DeKalb County would have been almost entirely black within the district -- within the subdistrict, would it not?

MR. HANSEN: Today that's true. It's not clear that that would have been true if subdistricting had been going on in 1969 or '70 or '71 or '72. DeKalb -- southern DeKalb County is disproportionately black today, but that wasn't true in the early years. The ultimate irony of this case is it was easy to desegregate this school district in the early years, but the school district didn't do that. It assigned -- it continued to do things like assign black faculty and black staff to black schools. We'll never know --

QUESTION: Well, the finding is the demographic changes were inevitable. So as I understood that suggestion, if they had adopted geographic subdistricting, say, into three -- northern, central, southern -- you would have had an all black southern district based on the inevitability of the demographic changes. And I find that a very strange suggestion for the petitioners to be urging on the board.

MR. HANSEN: If you had done it subdistrict north, central, south, that's exactly correct. If you'd done subdistrict east, middle, west, it's not correct because then you would be drawing from the northern black schools in east and -- the northern white schools in the east and the southern black schools in the east, and the northern white schools in the center. I mean, you can divide your subdistrict in any number of ways, so that depending upon how you draw your subdistrict lines you would not necessarily have the result that Your Honor is suggesting. You might well have a much more desegregated school.

QUESTION: I just want to ask you one question about the change in population. Is it all -- the demographic change all attributable to black people moving into the county -- into southern part of the county, or is some of it also white people moving from the south to the northern part of the county?

MR. HANSEN: Both.

QUESTION: Both. Is there any difference in legal significance between those two changes?

MR. HANSEN: No. No. And we don't concede, as I think I've suggested, we don't concede that all of the population -- student assignment population today, can be explained purely by demographics. But the demographic features go both ways. There's a chart particularly, in the joint appendix, that shows how there's been an increase in the number of black people in DeKalb County. Only in the 1975 to 1980 period, then there start to be a decline in white people in DeKalb County and movement into surrounding counties, and also into the northern part of the county.

QUESTION: I think I'm looking at the chart you're describing. The interesting thing to me is that in the period of '70 to '75 apparently there is almost as many additional whites in the county as additional blacks.

MR. HANSEN: Well, that's right. It wasn't until 1975, as we suggest, that this -- the problems that the school district is suggesting are created by the demographics actually started to occur. And of course, by 1975 we already had 73 percent of the black children in the majority black schools. And by the time the whites started to leave the county, we already had the problem that they now complain is giving them -- making it more difficult to desegregate today.

All we ask is that the court of appeals' decision be affirmed and that the black children of DeKalb County one day have a desegregated education.

QUESTION: Thank you, Mr. Hansen.

Mr. Reid, do you have rebuttal? Mr. Lee.

REBUTTAL ARGUMENT OF REX E. LEE ON BEHALF OF THE PETITIONERS

MR. LEE: It is very easy at this point in time to suggest all kinds of things that should have been done in the past. Once again we have a district court finding that is dispositive, and that is that nothing that could have been done, that was suggested, in the district court's view would have led to desegregation that would have happened any faster than it did under the procedures that were followed.

QUESTION: (Inaudible) you and your colleague on the other side, about whether at any point the students were -- the student attendance problem was cured.

MR. LEE: Well, this simply represents a shift from the position that they earlier took. I will refer you to the district court's opinion, which says that, on 35a, plaintiffs concede --

QUESTION: 35a of what, the petitioner's appendix?

MR. LEE: I'm sorry, the petition -- the appendix to the cert. of petition. "Plaintiffs concede that this action effectively desegregated the DCSS for a period of time."

QUESTION: Well, your opponent quotes some figures indicates that's just wrong.

MR. LEE: Well, I know, but they conceded that in an earlier time according to the district court. I wasn't --

QUESTION: And the court of appeals didn't disturb that.

MR. LEE: The court of appeals did not. And I want to make this very clear. There is nothing in the court of appeals opinion that even vaguely implies that anything the school board did led to this problem. The court of appeals' opinion rests on a legal foundation and not on a factual foundation. And it cannot be better summarized than in this single sentence which comes from the court of appeals opinion 20a, of the cert. of petition appendix. "We also reject the district court's refusal to require the DCSS to eradicate segregation caused by demographic changes." And that's what's got to be reversed. That's what's causing the mischief.

QUESTION: Mr. Lee, may I interrupt you right there?

MR. LEE: Yes.

QUESTION: Supposing we agree 100 percent with you that that proposition is wrong. Does it necessarily follow that the decree should be vacated?

MR. LEE: Yes, it does, Justice Stevens. And I'm -- thank you for asking that.

QUESTION: You mean only to that extent, only with respect to that?

MR. LEE: Yes, only with respect to that.

QUESTION: But no, I'm asking does it -- the relief you ultimately seek is to vacate the decree so you don't ever have to run into court and get permission to --

MR. LEE: Yes. And the case really ought to go back to the district court. There is nothing --

QUESTION: But you don't say that the entire decree should be vacated.

MR. LEE: Oh, no, no, no. We still have proof to make back before the district court.

QUESTION: You still have -- you still have a problem of --

MR. LEE: We still have these other two. We're ready to make the proof.

QUESTION: You're just wanting be free from having to readjust student assignments.

MR. LEE: That's right. That's right.

QUESTION: The review should be the judgment of the court of appeals in the decree of the district court.

MR. LEE: That is correct.

QUESTION: That still doesn't answer my question. My question, though, is still supposing that you corrected factor 6 or 5, or whatever it was, as of today, just assume. And you go back to the district court. Are you then entitled to have the decree vacated tomorrow?

MR. LEE: We think so. We think so. By the district court, but that's the procedure in which I would proceed.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lee.

The case is submitted.

(Whereupon, at 11:06 a.m., the case in the above-entitled matter was submitted.)