SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION

During the 15 years that followed the Supreme Court's momentous school desegregation decision in brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), school boards throughout the South did little to eliminate racial separation in the public schools. In some cases school boards merely announced a race-neutral school attendance policy. In other cases white-dominated school boards closed schools that were ripe for integration and instead built new schools in suburban areas that would be virtually white-only. The naacp and the federal government became increasingly frustrated by these methods and sought relief in the federal courts. As federal courts began to issue desegregation plans, questions arose over whether court-ordered supervision of local schools was proper. In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed.2d 554 (1971) (also known as North Carolina State Board of Education v. Swann, the Supreme Court issued another landmark decision, ruling that federal courts could exercise their remedial powers to end a dual school system divided by race. The Court made clear that when school boards refused to act in good faith, the federal courts had broad discretion to order, implement, and oversee the desegregation of school systems. In addition, the Court endorsed the use of busing to ensure desegregation. Swann was a controversial decision that guided federal courts for almost 30 years. By the late 1990s, however, federal courts had ended oversight of school desegregation and busing began to lose favor.

The Charlotte-Mecklenburg school system included the city of Charlotte and the surrounding Mecklenburg County, North Carolina. The school district was very large, encompassing over 550 square miles of territory. During the 1968–1969 school year 84,000 pupils attended 107 schools in the district, with 71 percent of the students white and 29 percent black. Of the 24,000 black students, 21,000 attended schools within the city of Charlotte. Of that number, 14,000 black students attended 21 schools with were either completely black or more than 99 percent black. These statistics demonstrated that the racial segregation persisted 15 years after the Brown decision. James E. Swann and a number of other black parents filed suit in 1965, asking the federal court to mandate that the school system be desegregated. The school board responded by passing a plan based on geographic zoning with a free-transfer provision. Swann and the other plaintiffs returned to court in 1968 and asked again for a plan that would dismantle the dual system and impose a unitary system upon the school district.

The district court conducted many hearings on the issues and found that the school district had drawn school attendance zones in such a way as to result in segregated education. The key issue, however, was how to remedy this situation. The school board proposed closing seven schools and restructuring attendance zones. The court found little merit in this proposal, finding that more than half the black and white students would remain in heavily segregated schools. The court appointed an expert, Dr. John Finger, to prepare another desegregation plan. The "Finger Plan" slightly modified the school board's plans for high school and junior high school students but was more drastic when it came to handling the 76 elementary schools in the system. This plan proposed using zoning, paring, and other grouping techniques so that student bodies in the school district would range from nine percent to 38 percent black. Black students in grades one through four would be bused from the inner city to predominantly white schools in the suburbs, while white students in the fifth and sixth grades would be bused to predominantly black schools in Charlotte. Under this plan, nine inner city schools were grouped with 24 suburban schools.

The Supreme Court, in a unanimous decision, upheld the desegregation plan and outlined what powers a federal court could employ to desegregate a public school system. Chief Justice warren burger, writing for the Court, noted that it had issued a second Brown decision in 1955 that addressed the need for school systems to move with "all deliberate speed" to end state-imposed segregated school systems. Brown v. Board of Education, 349 U.S. 249, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). Despite the Court's desire that desegregation decisions be made by local school boards, it concluded that very little progress had been made when it issued its 1968 decision, Green v. County School Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968). In Green the Court set out standards for measuring success in creating a unitary school system that no longer displayed the vestiges of segregation. The decision had made clear that school districts must take definite action to desegregate all aspects of public education or face court-imposed action. With Swann, Chief Justice Burger saw the opportunity to "make plain" and to "amplify guidelines" that would assist school districts and the lower federal courts.

The Court first stated that once a school district had been found in violation of the Fourteenth Amendment's equal protection clause, a district court's "equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Though judges could only employ these vast powers on the basis of a constitutional violation, once a violation had been established a court could fashion a remedy based on the scope of the violation. Chief Justice Burger rejected the school board's claim that Title IV of the civil rights act of 1964 limited the federal courts' ability to implement the Brown decision. He concluded that the 1964 act restricted the courts from dealing with "de facto segregation," where racial imbalance in the schools had occurred without the discriminatory actions of state officials. The North Carolina schools had been segregated by state laws and therefore were subject to correction by the federal courts.

Chief Justice Burger addressed four main issues concerning student assignments to particular schools: (1) the use of racial balance or quotas; (2) the elimination of one-race schools; (3) limitations on attendance zones; and (4) the use of busing to correct state-enforced racial school segregation. As to the first issue, Burger emphasized that courts should not use a "fixed mathematical" ratio of white to black students for each school. A school district did not have the obligation to ensure that "every school in every community must always reflect the racial composition of the school system as a whole." In the case of the Charlotte-Mecklenburg schools, however, the court-approved ratio of 71 percent to 29 percent was "no more than a starting point in the process of shaping of a remedy." The limited use of this ratio was within the discretion of the district court.

As to one-race schools, Chief Justice Burger found that these would require "close scrutiny to determine that school assignments are not part of state-enforced segregation." Moreover, where a school system has a history of segregation, the courts were warranted to presume that one-race schools had been created as a result of past or present discriminatory action. As to the altering of school attendance zones, the Court admitted that federal courts had employed "drastic" gerry-mandering to ensure a mix of white and black students. Such actions were acceptable as "interim corrective measure[s]" and were not "beyond the broad remedial powers of a court."

The use of busing to desegregate public schools was the most controversial remedy imposed by the federal courts. Chief Justice Burger noted that bus transportation had been an integral part of U.S. schools for years and that 39 percent of public school children had been bused during the 1969–1970 school year. The "normal" use of bus transportation, coupled with the finding that neighborhood school attendance zones would not dismantle the dual school system, led the Court to conclude that busing was an acceptable remedy. Burger pointed out that under the desegregation plan many students would actually have shorter bus rides. To rule out busing would doom desegregation.

The Court pointed out that the school system would someday be judged unitary and that the federal court would withdraw from its oversight of the system. At that point the school board would be free to consider how it wanted to draw its attendance zones. This happened in 1999 when the district court released the Charlotte-Mecklenburg district from its order. The school district then ended busing and returned to neighborhood attendance zones. Segregation of the school district also returned.

further readings

Kluger, Richard. 1976. Simple Justice. New York: Random House.

Orfield, Gary, Susan E. Eaton, and Elaine R. Jones. 1997. Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education. New York: New Press.

Schwartz, Bernard. 1986. Swann's Way: The School Busing Case and the Supreme Court. New York: Oxford Univ. Press.

cross-references

Civil Rights Acts; Discrimination.

Swann v. Charlotte‐mecklenburg Board of Education, 402 U.S. 1, argued 12 Oct. 1970, decided 20 Apr. 1971 by vote of 9 to 0; Burger for the Court. A logical extension of Green v. County School Board of New Kent County (1968), Swann nonetheless represented a further—and highly controversial—milestone in the Supreme Court's effort, following Brown v. Board of Education II (1955), to effectuate the desegregation of southern public schools. Swann is best known for its approval of busing as a tool to achieve desegregation. But in thirty pages—the longest school desegregation opinion then to date—the Court, still unanimous, supplied broad guidelines to federal district judges still faced with dual school systems fifteen years after Brown II.

Unlike many previous important school desegregation cases involving small rural districts, Swann arose from a sprawling, part‐urban, part‐rural district covering 550 square miles and serving 84,000 pupils in 101 schools. The school population was 29 percent black, and those pupils were concentrated in one quadrant of Charlotte. The district operated under a court‐ordered desegregation plan that focused on geographic zoning and free transfers, but even then more than half of the black pupils attended schools without any white students or teachers. After Green, the federal district court announced that the rules of the game had changed and adopted a sweeping plan to disperse the highly concentrated black‐student population under a program that would transport an additional 13,000 children in more than 100 new buses at an annual operating cost of more than $500,000 and a startup cost of more than $1 million.

The Supreme Court approved the plan in a disarmingly simple opinion. After deploring “deliberate resistance” to Brown II and other “dilatory tactics,” the Court announced that new guidelines were necessary in light of Green (p. 13). Once a constitutional violation was found, the question of the scope of the remedy became a routine issue of the appropriate use of remedial powers in equity. Chief Justice Warren Burger's opinion, which recent evidence has shown to have been the product of desperate and extensive negotiation among the justices, is important mainly for two features: its treatment of “mathematical ratios” for school composition and its approval of the trial court's transportation method for effectuating pupil transfers between schools.

In upholding the trial court's order that efforts be made to reach a 71:29 (white‐to‐black) ratio in the various schools, the Supreme Court observed that the “constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole” but only that “the very limited use of mathematical ratios was within the equitable remedial discretion of the District Court” (pp. 24–25). Burger did not explain whether there were any limitations on the use of ratios aimed to achieve racial balance in the schools—absent, hypothetically, the eventual achievement of a unitary system.

The opinion was even more elliptical on the focal point of the case: busing. After noting that 39 percent of public school children nationally are bused to school, Burger declared that freedom of choice would not eliminate the dual system and that busing and other remedial techniques, such as redrawing attendance zones, were within the district court's power to provide equitable relief: “Desegregation plans cannot be limited to the walk‐in school” (p. 30). Finally, Burger construed Title VI of the Civil Rights Act of 1964, which appeared to reaffirm Brown but seemed inconsistent with Green, as not disturbing the Court's rulings and thus as not circumscribing the district court's plan. In a companion case, North Carolina State Board of Education v. Swann (1971), Burger held that a state could not prohibit racially explicit transportation or assignment of schoolchildren without violating Brown.

Despite Swann's frank approval of wholesale, districtwide supervision of affected public schools by federal district courts, the opinion did contain two limitations on equitable discretion that would quickly loom large. Burger stated several times, in different words, that the scope of the constitutional violation determined the scope of the remedy. He also declared that the district court's jurisdiction ended when remediation had been achieved to the point where the system was once again “unitary.” The former point shaped the decision in Milliken v. Bradley (1974); the latter presaged Pasadena Board of Education v. Spangler (1976).

See also Desegregation Remedies; Race and Racism; Segregation, De Jure.

Bibliography

Bernard Schwartz , Swann's Way (1986).

Dennis J. Hutchinson

Swann v. Charlotte‐Mecklenburg Board of Education (1971), a landmark U.S. Supreme Court decision, based on a case arising in North Carolina, that extended to large metropolitan school districts the duty to dismantle de jure (legally established) racial segregation. Crafted by Justice Potter Stewart, the unanimous ruling upheld federal district judge James B. McMillan's countywide busing order. According to the Court, busing schoolchildren to achieve greater racial balance in individual schools is a constitutionally proper remedy in districts burdened by the effects of past or present de jure segregation. Dismissing the North Carolina school board's argument that Judge McMillan's race‐based busing order violated the 1964 Civil Rights Act, the Court sanctioned the use of optimal racial percentages and the involuntary transfer of children to schools outside of their neighborhoods.

Swann placed a heavy burden of proof on any school board attempting to demonstrate that racially imbalanced schools did not reflect official policy, but rather resulted from de facto forces. As a result, it became the touchstone of school desegregation litigation in the 1970s and 1980s mandating the use of court‐ordered busing programs in hundreds of American cities. The effects of such programs were mixed, leading to meaningful desegregation in some districts and counterproductive “white flight” in others. In many communities, the dictates of the Swann decision triggered widespread opposition to “forced busing” among angry parents who demanded a return to traditional neighborhood schools. The opponents of court‐ordered busing received a measure of legal relief in the early 1990s when the Court weakened Swann by ruling (in Board of Education v. Dowell, 1991, and Freeman v. Pitts, 1992) that lower courts could suspend busing programs in districts that made a good‐faith and “reasonable” effort to desegregate.
See also Brown v. Board of Education; Civil Rights Legislation; Civil Rights Movement; Education: Education in Contemporary America.

Bibliography

Bernard Schwartz , Swann's Way: The School Busing Case and the Supreme Court, 1986.
Bob Woodward and and Scott Armstrong , The Brethren: Inside the Supreme Court, 1988, pp. 96–112.

Raymond O. Arsenault

Swann v. Charlotte-Mecklenburg County Board of Education case decided in 1971 by the U.S. Supreme Court . The Court held that the constitutional mandate (see Brown v. Board of Education of Topeka, Kans .) to desegregate public schools did not require all schools in a district to reflect the district's racial composition, but that the existence of all-white or all-black schools must be shown not to result from segregation policies. The Court added that because bus transportation had traditionally been employed by school systems, busing could be used in efforts to correct racial imbalances.