of this type should be shifted from plaintiffs, seeking redress for a denial of constitutional rights, to defendant school boards. What this means is that upon a prima facie showing of noncompliance with this Court's holding in Green v. County School Board of New Kent County (391 U.S. 430 (1968)) sufficient to demonstrate a likelihood of success at trial, plaintiffs may apply for immediate relief that will at once extirpate any lingering vestiges of a constitutionally prohibited dual school system. Compare Magnum Import Co. v. Coty (262 U.S. 159 (1923)).

Such relief, I believe it was intended, should consist of an order providing measures for achieving disestablishment of segregated school systems, and should, if appropriate, include provisions for pupil and teacher reassignments, rezoning, or any other steps necessary to accomplish the desegregation of the public school system as required by Green. Graduated implementation of the relief is no longer constitutionally permissible. Such relief shall become effective immedi ately after the courts, acting with dispatch, have formulated and approved an order that will achieve complete disestablishment of all aspects of a segregated public school system.

It was contemplated, I think, that in determining the character of such relief, the courts may consider submissions of the parties or any recommendations of the Department of Health, Education, and Welfare that may exist or may request proposals from the Department of Health, Education, and Welfare. If Department recommendations are already available, the school districts are to bear the burden of demonstrating beyond question, after a hearing, the unworkability of the proposals, and if such proposals are found unworkable, the courts shall devise measures to provide the required relief. It would suffice that such measures will tend to accomplish the goals set forth in Green, and, if they are less than educationally perfect, proposals for amendments may thereafter be made. Such proposals for amendments are in no way to suspend the relief granted in accordance with the requirements of Alexander.

Alexander makes clear that any order so approved should thereafter be implemented in the minimum time necessary for accomplishing whatever physical steps are required to permit transfers of students and personnel or other changes that may be necessary to effectuate the required relief. Were the recent orders of the Court of Appeals for the Fifth Circuit in United States v. Hinds County School Board (423 F.2d 1264 (November 7, 1969)), and that of the Fourth Circuit in Nesbit v. Statesville City Board of Education (418 F. 2d 1040 (December 2, 1969)), each implementing in those cases our decision in Alexander, to be taken as a yardstick, this would lead to the conclusion that in no event should the time from the finding of noncompliance with the requirements of the Green case to the time of the actual operative effect of the relief, including the time for judicial approval and review, exceed a period of approximately 8 weeks. This, I think, is indeed the "maximum" timetable established by the Court today for cases of this kind.

Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL express their disagreement with the opinion of Mr. Justice HARLAN, joined by Mr. Justice WHITE. They believe that

those views retreat from our holding in Alexander v. Holmes County Board of Education, ante, at 20, that "the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools."

Memorandum of The CHIEF JUSTICE and Mr. Justice STEWART. We would not peremptorily reverse the judgments of the Court of Appeals for the Fifth Circuit. That court, sitting en banc and acting unanimously after our decision in Alexander v. Holmes County Board of Education, ante, p. 19, has required the respondents to effect desegregation in their public schools by February 1, 1970, save for the student bodies, which are to be wholly desegregated during the current year, no later than September. In light of the measures the Court of Appeals has directed the respondent school districts to undertake, with total desegregation required for the upcoming school year, we are not prepared summarily to set aside its judgments. That court is far more familiar than we with the various situations of these several school districts, some large, some small, some rural, and some metropolitan, and has exhibited responsibility and fidelity to the objectives of our holdings in school desegregation cases. To say peremptorily that the Court of Appeals erred in its application of the Alexander doctrine to these cases, and to direct summary reversal without argument and without opportunity for exploration of the varying problems of individual school districts, seems unsound to us.

SWANN v. CHARLOTTE-MECKLENBURG

402 U.S. 1 (1971)

CERTIORARI

TO THE U.S. COURT OF APPEALS FOR THE 4TH CIRCUIT

No. 281. ARGUED OCTOBER 12, 1970-DECIDED APRIL 20, 19711

The Charlotte-Mecklenburg school system, which includes the city of Charlotte, N.C., had more than 84,000 students in 107 schools in the 1968-1969 school year. Approximately 29 percent (24,000) of the pupils were Negro, about 1,400 of whom attended 21 schools that were at least 99 percent Negro. This resulted from a desegregation plan approved by the district court in 1965, at the commencement of this litigation. In 1968, petitioner Swann moved for further relief based on Green v. County School Board, 391 U.S. 430, which required school boards to "come forward with a plan that promises realistically to work... now... until it is clear that State-imposed segregation has been completely removed." The district court ordered the school board in April 1969 to provide a plan for faculty and student desegregation. Finding the board's submission unsatisfactory, the district court appointed an expert to submit a desegregation plan. In February 1970, the expert and the board presented plans, and the court adopted the board's plan, as modified, for the junior and senior high schools. and the expert's proposed plan for the elemtntary schools. The court of appeals affirmed the district court's order as to faculty desegregation and the secondary school plans, but vacated the order respecting elementary schools, fearing that the provisions for pairing and grouping of elementary schools would unreasonably burden the pupils and the board. The case was remanded to the district court for reconsideration and submission of further plans. This court granted certiorari and directed reinstatement of the district court's order pending further proceedings in that court. On remand the district court received two new plans, and ordered the board to adopt a plan, or the expert's plan would remain in effect. After the board "acquiesced" in the expert's plan, the district court directed that it remain in effect. Held:

1. Today's objective is to eliminate from the public schools all vestiges of State-imposed segregation that was held violative of equal protection guarantees by Brown v. Board of Education, 347 U.S. 483, in 1954. Pages 10-11.

2. In default by the school authorities of their affirmative obligation to proffer acceptable remedies, the district courts have

1 Together with No. 349, Charlotte-Mecklenburg Board of Education et al. v. Swann et al., also on certiorari to the same court.

broad power to fashion remedies that will assure unitary school systems. Pages 11-12.

3. Title IV of the Civil Rights Act of 1964 does not restrict or withdraw from the Federal courts their historic equitable remedial powers. The proviso in 42 U.S.C. § 2000c-6 was designed simply to foreclose any interpretation of the Act as expanding the existing powers of the Federal courts to enforce the Equal Protection Clause. Pages 12-13.

4. Policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities are among the most important indicia of a segregated system, and the first remedial responsibility of school authorities is to eliminate invidious racial distinctions in those respects. Normal administrative practice should then produce schools of like quality, facilities, and staffs. Page 14.

5. The Constitution does not prohibit district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. United States v. Montgomery County Board of Education, 395 U.S. 225, was properly followed by the lower courts in this case. Pages 14-16.

6. In devising remedies to eliminate legally imposed segregation, local authorities and district courts must see to it that future school construction and abandonment are not used and do not serve to perpetuate or reestablish a dual system. Pages 16-17. 7. Four problem areas exist on the issue of student assignment: (1) Racial quotas. The constitutional command to desegregate schools does not mean that every school in the community must always reflect the racial composition of the system as a whole; here the district court's very limited use of the racial ratio not as an inflexible requirement, but as a starting point in shaping a remedy-was within its equitable discretion. Pages 18-21.

(2) One-race schools. While the existence of a small number of one-race, or virtually one-race, schools does not in itself denote a system that still practices segregation by law, the court should scrutinize such schools and require the school authorities to satisfy the court that the racial composition does not result from present or past discriminatory action on their part. Pp. 21-22.

An optional majority-to-minority transfer provision has long been recognized as a useful part of a desegregation plan, and to be effective such arrangement must provide the transferring student free transportation and available space in the school to which he desires to move. P. 22.

(3) Attendance zones. The remedial altering of attendance zones is not, as an interim corrective measure, beyond the remedial powers of a district court. A student assignment plan is not acceptable merely because it appears to be neutral, for such a plan may fail to counteract the continuing effects of past school segregation. The pairing and grouping of noncontiguous zones is a permissible tool: judicial steps going beyond contiguous zones should be examined in light of the objectives to be sought. No rigid rules can be laid down to govern conditions in different localities. Pp. 23–25.

(4) Transportation. The district court's conclusion that assignment of children to the school nearest their home serving their grade would not effectively dismantle the dual school system is supported by the record, and the remedial technique of requiring bus transportation as a tool of school desegregation was within that court's power to provide equitable relief. An objection to transportation of students may have validity when the time or distance of travel is so great as to risk either the health of the children or significantly impinge on the educational process: limits on traveltime will vary with many factors, but probably with none more than the age of the students. Pp. 25–27.

8. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once a unitary system has been achieved. Pp. 27-28.

431 F. 2d 138 affirmed as to those parts in which it affirmed the district court's judgment. The district court's order of August 7, 1970, is also affirmed.

BURGER, C. J., delivered the opinion for a unanimous Court.

CERTIORARI

TO THE U.S. COURT OF APPEALS FOR THE 4TH CIRCUIT

APRIL 20, 1971

Mr. Chief Justice BURGER delivered the opinion of the Court. We granted certiorari in this case to review important issues as to the duties of school authorities and the scope of powers of Federal courts under this Court's mandates to eliminate racially separate public schools established and maintained by state action. Brown v. Board of Education, 347 U.S. 483 (1954).

This case and those argued with it arose in States having a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race. That was what Brown v. Board of Education was all about. These cases present us with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once. Meanwhile, district courts and courts of appeals have struggled in hundreds of cases with a multitude and variety of problems under this Court's general directive. Understandably, in an area of evolving remedies, those courts had to improvise and experiment without detailed or specific guidelines. This Court, in Brown I, appropriately dealt with the large constitutional principles; other Federal courts had to grapple with the flinty, intractable realities of

1

1 McDaniel v. Barresi, No. 420; Davis v. Board of School Commissioners of Mobile County, No. 436; Moore v. Charlotte-Mecklenburg Board of Education, No. 444; North Carolina State Board of Education v. Swann, No. 498. For purposes of this opinion the cross-petitions in Nos. 281 and 349 are treated as a single case and will be referred to as "this case."