Columbus Board of Education v. Penick 443 U.S. 449 (1979) Dayton Board of Education v. Brinkman 433 U.S. 406 (1977); 443 U.S. 526 (1979)

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COLUMBUS BOARD OF EDUCATION v. PENICK 443 U.S. 449 (1979) DAYTON BOARD OF EDUCATION v. BRINKMAN 433 U.S. 406 (1977); 443 U.S. 526 (1979)

These cases demonstrated the artificiality of the de facto / de jure distinction in school desegregation litigation. Both cases arose in cities in Ohio, where racially segregated schools had not been prescribed by law since 1888. In both, however, blacks charged another form of de jure segregation: intentional acts by school boards aimed at promoting segregation.

When the Dayton case first reached the Supreme Court, a related doctrinal development was still a fresh memory. washington v. davis (1976) had held that racial discrimination was not to be inferred from the fact that governmental action had a racially disproportionate impact; rather the test was whether such an impact was intended by the legislative body or other officials whose conduct was challenged. (See legislation.) Dayton I in 1977 applied this reasoning to school segregation, emphasizing that a constitutional violation was to be found only in cases of established segregative intent. The Court remanded the case for more specific findings on the question of intent, and said that any remedy must be tailored to the scope of the segregation caused by any specific constitutional violations.

Many observers took Dayton I to portend the undermining of keyes v. school district no. 1 (1973). In Keyes the Court had held that, once a significant degree of de jure segregation was established, systemwide desegregation remedies (including school busing) were appropriate unless the school board showed that any remaining racially separate schools were the product of something other than the board's segregative intent. When the case returned to the Supreme Court two years later, these predictions were confounded.

Dayton II came to the Court along with the Columbus case, and they were decided together. Columbus, decided by a 7–2 vote, provided the main opinions. Writing for a majority of five, Justice byron r. white applied the Keyes presumptions approach so vigorously that the dissenters remarked that the de factode jure distinction had been drained of most of its meaning. None of the Justices disputed the finding that in 1954–1955, when brown v. board of education was decided, the Columbus school board had deliberately drawn boundary lines and selected school sites to maintain racial segregation in a number of schools. What divided the Court was the question of inferences to be drawn from these undisputed facts.

Justice White reasoned that this de jure segregation placed the school board under an affirmative duty to dismantle its dual system. Its actions since 1954, however, had aggravated rather than reduced segregation; the foreseeability of those results helped prove the board's segregative intent. A districtwide busing remedy was thus appropriate under Keyes. Justice william h. rehnquist, dissenting, pointed out the tension between this decision and Dayton I. Here there was no showing of a causal relationship between pre-1954 acts of intentional segregation and current racial imbalance in the schools. Thus present-day de facto segregation was enough to generate districtwide remedies, so long as some significant pre-1954 acts of deliberate segregation could be shown.

It will be a rare big-city school district in which such acts cannot be found—with a consequent presumption of current de jure segregation. A school board cannot overcome this presumption merely by relying on a neighborhood school policy and showing that the city's residences are racially separated. This analysis obviously blurs the de factode jure distinction.

Dayton II made clear that a school board's segregative purpose was secondary to its effectiveness in performing its affirmative duty to terminate a dual system—and that effectiveness was to be measured in the present-day facts of racial separation and integration. Justice White again wrote for the majority, but now there were four dissenters. Justice potter stewart, the Court's one Ohioan, concurred in Columbus but dissented in Dayton II, deferring in each case to the district court's determination as to a continuing constitutional violation. In Dayton II, the district court had found pre-1954 acts of deliberate segregation, but had found no causal connection between those acts and present racial separation in the schools. That separation, the district judge concluded, resulted not from any segregative purpose on the part of the school board but from residential segregation. Justice Stewart would have accepted that judgment, but the majority, following the Columbus line of reasoning, held that the board had not fulfilled its affirmative duty to dismantle the dual system that had existed in 1954. Chief Justice warren e. burger joined Justice Stewart in both cases; Justice Rehnquist dissented in Dayton II chiefly on the basis of his Columbus dissent.

Justice lewis f. powell joined Justice Rehnquist's dissents, and also wrote an opinion dissenting in both cases. Justice Powell had argued in Keyes for abandoning the de factode jure distinction, and he did not defend that distinction here. Rather he repeated his skepticism that court orders could ever end racial imbalance in large urban school districts and his opposition to massive busing as a desegregation remedy. Justice Powell, a former school board president, argued that, twenty-five years after Brown, the federal courts should be limiting rather than expanding their control of public school operations.

Kenneth L. Karst


Kitch, Edmund W. 1979 The Return of Color-Consciousness to the Constitution: Weber, Dayton, and Columbus. Supreme Court Review 1979:1–15.

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Columbus Board of Education v. Penick 443 U.S. 449 (1979) Dayton Board of Education v. Brinkman 433 U.S. 406 (1977); 443 U.S. 526 (1979)

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Columbus Board of Education v. Penick 443 U.S. 449 (1979) Dayton Board of Education v. Brinkman 433 U.S. 406 (1977); 443 U.S. 526 (1979)