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Chapter 5. The Detroit Case in the Supreme Court, June, 1973, to July, 1974
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Chapter 5 The Detroit Case in the Supreme Court, June, 1973, to July, 1974 Narrowing the Issues Nate Jones believed that the Supreme Court would review the Detroit case in order to resolve the four-to-four split in the Richmond case. He feared, however , that another landmark issue would have to be decided at the same time as the metropolitan issue: What is the legal standard for judging the constitutionality of school segregation within Northern school districts where dual schooling has not been mandated by state law or local ordinance? It was a major threshold issue that had to be reached before confronting multidistrict concerns. The Supreme Court, however, reached the issue in the Denver school case before review of the Detroit case. The Legal Defense Fund, in a rare foray into a school case outside the South, had challenged segregation in the Denver public schools as intentional and as a denial of equal educational opportunity. The trial judge found intentional segregation in only one portion of the Denver district (Park Hill), but ordered systemwide desegregation including "the [black] core city schools" on the theory that truly equal educational opportunity could be provided to minority children only in integrated schools. On appeal, the Tenth Circuit affirmed only the findings of intentional segregation with respect to Park Hill but disapproved the educational theory and desegregation of the inner city schools. The Supreme Court eventually agreed to review this judgment. The LDF decided to focus its brief and oral argument on the legal standards for judging intentional segregation. The school board, with the support of the Nixon Justice Department, countered that any violation and remedy should be limited to those specific schools directly segregated by school board misconduct; this school-by-school analysis also posited that incorporation of residential segregation in neighborhood schools was no violation. In an opinion for the Court (in which Justices Marshall, Blackmun, and Stewart joined), Justice Brennan "emphasize[d] that the differentiating factor between de jure and so-called de facto segregation . . . is purpose, or intent to segregate." Without specifying what proof would ordinarily trigger a finding of intentional segregation, the Court found that essential elements include' 'a current condition of segregation resulting from intentional state action. " Justice Brennan held that the Denver board's long-standing, intentional segregation of the schools in the Park Hill section through racial departures from 97 98 Beyond Busing neighborhood school concepts made it more likely that segregation in the remainder of the district had similarly discriminatory underpinnings. In such circumstances, Brennan held that the burden of proof should shift to school authorities to show that the impact of the Park Hill segregation did not extend elsewhere and that the racial motivation underlying the Park Hill practices did not contribute at all to other school board decisions resulting in racially separate schools in other parts of the district. Building on the chief justice's opinion for the Court in Swann, Justice Brennan added that discriminatory practices earmarked schools according to their racial composition. In conjunction with the location and construction of one-race schools, this racial identification "may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further concentration within the schools." The Court vacated the parts of the Tenth Circuit decree concerning the core city schools and remanded the case for further proceedings in the trial court where the Denver school board would have to meet the heavy proof burdens imposed . If the board failed, the opinion directed the trial court to find that the entire Denver school system was dual and to order "all-out desegregation" of all schools within the district consistent with Swann.* Chief Justice Burger concurred in the remand to the trial court, but did not join the opinion. Justice Douglas concurred in a separate opinion. Justice White did not participate in the case at all. Justice Powell, the former school board president from Virginia and Nixon appointee, wrote an opinion "concurring in part and dissenting in part. " He expressed his disagreement with prior decisions imposing affirmative duties on Southern schools not shared by their Northern counterparts. He, therefore, discarded the de jure/de facto distinction in favor of a national right to an "integrated school system. " Justice Powell defined this "right," however , as a system of "neighborhood education . . . neutrally administered [without] compulsory transportation.' , Powell defended neighborhood schools as the bastion of public schooling, parental choice over their children 's upbringing, and school and community ties...