Swann v. Charlotte-Mecklenburg Board of Education: Federal Courts Remedying Segregation (04/20/1971)


Swann v. Charlotte-Mecklenburg Board of Education

Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation?

Argued: 10/12/1970

Decision Date: 04/20/1971

Decision Record: 9-0; yes

Justices in Favor: Warren Burger, Hugo Black, William Douglas, John Harlan, William Brennen, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun

Justices Dissenting: None


Effect of the Decision

This case clarifies that federal courts are constitutionally authorized to amend state-imposed segregation.


In Favor

In representation of Swann, attorney Julius Levonne Chambers argued, “The Fourth Circuit adopted a new reasonableness test, approved the plan of the District Court for the junior and senior high schools, and vacated the decision and directed further consideration of a plan for the elementary schools requiring that the District Court apply a reasonableness test.

The plaintiff’s petitioned this Court for certiorari, this Court granted certiorari in Number 281 on June 30, reinstated the District Court’s plan of desegregation and authorized further hearing by the District Court as had been directed by the Fourth Circuit.

The District Court conducted further hearings during July 1970.

And on August 3, 1970, applying the Fourth Circuit’s new test of reasonableness found a plan and had directed in February 1970 to be reasonable and reinstated its February 5th order.

The school board appealed to the Fourth Circuit and petitioned this Court for certiorari prior to the decision by the Fourth Circuit.

This Court granted that petition on October 6th, along with the petition of the school board to review the plan of the court with respect to the junior and senior high schools which the Fourth Circuit had approved as reasonable.

The court therefore has before it, the complete plan of the District Court which had been directed in February 1970, and re-approved by the District Court on August 3rd, 1970.

We think that the decision of the District Court can be sustained under the equitable discretion of that court as authorized by Brown.

We submit however, that the constitutional principles by which the District Court was guided particularly the requirement for the elimination of all Black and racially identifiable Black schools.

On this record and under the circumstances of this case, we’re clearly correct and should be sustained by this Court.”


Then in opposition, representing the Charlotte Mecklenburg Board of Education, attorney Erwin N. Griswold claims, “It has been a long road, we’ve made substantial progress and this is evidenced by the fact that few today question the central rightness of the decision which was reached by this Court in Brown against the Board of Education 16 years ago.

It’s true that 16 years have passed, but in this connection that may be observed that the Brown case itself was twice argued in this Court, and before the initial decision, that it was pending here for two-and-a-half years before it was decided.

It was also here in additional year or a total of three-and-a-half years when the case was set down for further argument with respect to remedy.

For many years, there was a serious problem simply in getting the decision accepted.

I need not recall Little Rock and Oxford in the confrontation at the University of Alabama.

All of that is in the past now, and fortunately and wisely so.

Because of this situation, the court has only recently had occasioned to consider the many problems of detail, which arise in the application of the Brown decision.

On the basis of a careful survey, I find that there are 25 school cases which have been decided on the merits by this Court in the 16 years since Brown was decided.

Many of these are per curiam decisions.

One was Cooper and Aaron which arose out of the Little Rock situation.

Other cases involved various aspects of so-called massive resistance and interposition, such as Bush against the Orleans Parish School Board.

Then only six years ago, in Griffin against Prince Edward County, the court held the schools could not be closed while public money was meant to support private White only schools.

During these years, many hundreds of cases were decided in lower federal courts and great determination and courage was shown there.

Not until recently, however, has this Court had occasioned to focus on detailed aspects of the problem.

At first in the Brown case, there was only the start question, whether legally enforced segregation was consistent with the constitution.

This Court rightly held that it was not.

The problem was inappropriately remitted to the school boards and the local courts to work out the details.

As might be expected, it has been found to be a vastly complex problem.

One can look at it first with a glass, and then with the microscope, and the complexities and the infinite variations soon appear.

Actually, it has been only in the past few years that this Court has had occasion to deal with any of these matters of application in detail.

For many years, school boards and the courts too, to a considerable extent had felt that compliance was reached under freedom of choice plans.

It was only two years ago last May that the court held that freedom of choice plans alone were not adequate when they did not achieve a unitary school system.

As for one reason or another, they almost never do.

And it was only a year ago last June in the Montgomery County Board of education case that the court held for the first time, that a District Court could properly require allocation of White and Black faculty members in equal proportions to all schools.

And there is nothing which more clearly marks a school as Black as that it has a wholly Black faculty.

Now, we have another problem, in the application of the Brown decision, an extremely important and difficult problem.

I think I can put the issue this way without too much over simplification.

What is the standard to be applied, or the objective to be sought by a school board or by a court in reviewing what the school board has done is the standard or objective to achieve racial balance?

Or on the other hand, is the standard or objective to disestablish a dual school system and to achieve a truly unitary system.

Our position is that the latter is the correct formulation of the objective.

We cannot find more in the constitutional command of Equal Protection of the laws or of Due Process of law which as far as I know, are the only constitutional provisions and likewise the most specific constitutional provisions involved in this case.

Before going further, I would like to make it as plain as I can that this not a retreat.

There must not be a retreat in this area, where so much has already been done to redeem the promise of America.

I recognized too that determining what is truly a unitary school system may in actual cases present practical problems of very great difficulty.

My central position is that there is not any basis for saying that this can only be achieved through racial balance.

At this point, I would like to observe that counsel for the petitioners disclaim the phrase racial balance, both in their briefs and in the argument today, but I find a passage in a brief which was filed late last week.

Actually it’s in number 436, the Mobile case which will be argued tomorrow, this is a supplemental brief for the petitioners in Mobile on page three, where at the bottom of the page, the same counsel say, petitioners submit that Mobile’s experience under the Fifth Circuit plan underscores and this is — it seems to me, their statement of their contention.”


The majority in this case was unanimous in the side of Swann. In the opinion slip, written by Chief Justice Warren Burger wrote, “The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term “reasonableness.” In Green, supra, this Court used the term “feasible,” and, by implication, “workable,” “effective,” and “realistic” in the mandate to develop “a plan that promises realistically to work, and . . . to work now.” On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity.

At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. The systems would then be “unitary” in the sense required by our decisions in Green and Alexander.

It does not follow that the communities served by such systems will remain demographically stable, for, in a growing, mobile society, few will do so. Neither [p32] school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but, in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.

For the reasons herein set forth, the judgment of the Court of Appeals is affirmed as to those parts in which it affirmed the judgment of the District Court. The order of the District Court, dated August 7, 1970, is also affirmed.”

My Opinion:

In this case, I agree with the majority. The lower courts should be allowed to attempt to solve for state-imposed segregation. They have the authority to make those type of decisions. The state-imposed segregation should not have been “imposed” in the first place. The Fourteenth amendment specifically states that all citizens have equal protection of the law. Segregation would be a violation of that. Therefore, federal courts should be constitutionally authorized to rectify state-imposed segregation.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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