Chapter 8


The equal protection guarantee emerged as a significant constitutional force when it was used to dismantle official segregation. Following the decision in Brown v. Board of Education (1954), the Court confronted widespread resistance to implementing its mandate to desegregate public schools. Over the course of nearly two decades following Brown, the Court consistently pressed for compliance. Despite an initially limited impact, passage of the Civil Rights Act of 1964 enabled the federal government to use its power and litigation resources to advance the process of desegregation. As the case for desegregation expanded beyond the South, and into Northern and Western communities where racial separation often was a result of factors less traceable to government action, the Court pondered the equal protection guarantee’s limits. In Keyes v. School District No. 1 (1973), the Court narrowed desegregation obligations to circumstances where racial segregation had been compelled by the state. One year later, in Milliken v. Bradley (1974), the Court announced that interdistrict busing was impermissible when a district had not caused segregation in the other district. Taking this principle beyond just the desegregation process, the Court in Washington v. Davis (1976) determined that any equal protection claim was dependent upon proof of an actual intent to discriminate. This standard is readily satisfied in cases where a racial preference or disadvantage is manifest by the terms of the law itself. Racial preferences, aimed at accounting for past discrimination or to achieve the benefits of diversity, became a primary focal point of equal protection jurisprudence in the final quarter of the twentieth century and the first decade of the twenty-first century. They became the basis for significant decisions in Regents of the University of California v. Bakke (1978), City of Richmond v. J.A. Croson Co. (1989), Adarand Constructors, Inc. v. Pena (1995), Grutter v. Bollinger (2003), and Gratz v. Bollinger (2003).

In more recent decisions, the Court appears to have become somewhat less accommodating toward race-based affirmative action programs. In Schuette v. Coalition to Defend Affirmative Action (2014), Michigan voters adopted Proposal 2 of the State Constitution, which prohibits the use of race-based preferences as part of the admissions process for state universities. Justice Kennedy argued on behalf of the three-person plurality that protecting interests based on race risked allowing the government to classify people based on race, and that this risks perpetuating the kind of racism the affirmative action policies were meant to counter. In upholding the Michigan referendum to outlaw affirmative action, the court stated that voters have the right to determine that some race-based preferences are helpful, as well as the right to deny the voters their democratic rights to make such choices. In Fisher v. University of Texas (2013), Amy Fisher challenged University of Texas’s affirmative action program. The Court held that such programs must be held to the demanding review required by strict scrutiny, and remanded the case for reconsideration because the lower court had failed to do so. Specifically, the Court cautioned that “the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Accordingly, state schools of higher education must be increasingly mindful that they can meet Fisher’s high bar of strict scrutiny, and that the court will no longer be as willing to defer to such schools’ claims that they have considered race-neutral alternatives.

Keyes v. School District No. 1, Denver, Colorado

Citation: 413 U.S. 189.

Issue: Whether segregation of public schools is unconstitutional only if required by law.

Year of Decision: 1973.

Outcome: De jure but not de facto segregation violates the Constitution.

Author of Opinion: Justice William Brennan.

Vote: 5-4.

The Supreme Court’s determination in Brown v. Board of Education (1954) that racially segregated schools were unconstitutional did not end segregation. The Court’s command in Brown for desegregation “with all deliberate speed” generally was met with resistance of and challenge to its authority. The Arkansas legislature even enacted a law that purportedly freed its citizens from compliance and asserted its own authority to review “in every Constitutional manner the Unconstitutional desegregation decisions . . . of the United States Supreme Court.”

In Cooper v. Aaron (1958), however, the Court reaffirmed that its word on the onstitution was final and binding. President Dwight Eisenhower backed the Court by dispatching federal troops to Arkansas to enforce implementation of desegregation.

Desegregation accomplishments overall in the decade after Brown were minimal. So limited was progress during this time that the Court eventually shifted from the “with all deliberate speed standard” to insistence upon remedies “that promise[ ] realistically to work now.”

Even as the Court held firm in its demand to abolish racially segregated schools, public attitude toward desegregation became an increasingly significant factor in the process. The busing of students to achieve desegregation became a major issue in the 1968 presidential election. It was a concern not just in the South but in the North and West, where racially segregated schools also were a common phenomenon. Outside the South, segregated public schools were less a consequence of legal mandate than of residential demographics. In Keyes v. School District No. 1, the Court was called upon to decide whether this type of segregation also violated the Constitution.

At issue in this case were decisions by the Denver, Colorado, school board with respect to the location of public schools, drawing of district lines, and placement of students. The Court found that the school board had developed policies and made implementations in these areas for the purpose of maintaining racial segregation. Whether legislated or otherwise, the Court determined that officially prescribed segregation conflicted with the equal protection guarantee. More significantly, it decided that proof of government’s intent to segregate was a prerequisite for establishing a constitutional violation. The other side of this premise was that if segregation was not the result of intentional state action, it was not constitutionally significant.

The Keyes Court thus drew a line between what it characterized as de jure segregation and de facto segregation. The key aspect of de jure segregation, and the basis for its unconstitutionality, is official segregative intent. As the Court put it, “the differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate.” Pursuant to its determination that racial segregation in Denver public schools was purposeful, the Court ordered their desegregation. Absent the finding of segregative intent, racial segregation would have been characterized as de facto and thus constitutionally inconsequential.

Significant as the difference between de jure and de facto segregation may be, the line between these two conditions is not necessarily precise. Residential segregation outside the South typically has been viewed as the result of private choice in choosing where to live. Racially identifiable neighborhoods in the North and West, however, often were facilitated and maintained by official policy. Until they were found unconstitutional in Shelley v. Kraemer (1948), restrictive covenants were used to create and preserve segregated neighborhoods. Such agreements are negotiated and executed as a private transaction, but their viability is dependent upon judicial enforcement. Government involvement in this manner was the basis for the Court’s eventual finding that restrictive covenants were unconstitutional. Their segregative consequences, however, lasted long beyond the determination that they were invalid.

Federal home loan policies contributed further to racially segregated neighborhoods and derivatively to racially segregated public schools. The Federal Housing Administration denied loans for home purchases that would undermine the racial identity of a neighborhood. Residential segregation was fortified further by government policies regarding the siting of public schools and public housing distribution of urban renewal funds. These linkages, as Justice William Douglas observed, established a clear line between government action and racial segregation. The Court, however, was not persuaded that these connections moved it from a de facto to a de jure condition.

Justice Lewis Powell, like Justice Douglas, was unable to differentiate segregation in the way that the Court did. He viewed it as unfair that desegregation obligations should be the work of only one region. The primary evil he perceived in racial segregation related less to official intent and more to its effect on educational opportunity. In an opinion that concurred in part with and dissented in part from the majority, Justice Powell thus advocated an outcome that would eliminate any distinction between de jure and de facto segregation.

The bottom line of Keyes v. School District No. 1 was that the constitutional duty to desegregate hinged upon proof of official segregative intent. Making such a case was not difficult insofar as segregation was a clear and open mandate of the law, as it was during the separate but equal era. With segregation prohibited, a purpose to segregate typically did not manifest itself openly. Justice Powell noted the difficulty of identifying such a motive and that it could be disguised. Within the public school context, he mentioned how segregation could be achieved and maintained through a variety of methods that could hide the real purpose. Among these ways were the location and size of new schools, the configuration of attendance zones, faculty recruiting and assignment, curriculum, and tracking of students into academic or vocational programs.

In his dissenting opinion, Justice Thurgood Marshall expressed dissatisfaction with the distinction between de jure and de facto segregation. In Justice Marshall’s view, racially segregated schools were a source of stigma regardless of causation or intent. He maintained that constitutional rights should not turn upon whether a child was “born into a de facto society.” From his perspective, racially segregated schools under any circumstance created a sense of inferiority among students, impaired their educational opportunity, and undermined their development.

Despite the contrary views of Justices Douglas, Powell, and Marshall, the distinction between de jure and de facto segregation has become a settled boundary. The practical result has been a narrowed reach of the desegregation mandate and an impact primarily upon the South. Exceptions to this norm arose in the North and West to the extent school boards had established racially segregated schools and had not dismantled them consistent with the dictate of Brown v. Board of Education. In Columbus Board of Education v. Penick (1979), for example, the Court found segregation in Columbus, Ohio, schools attributable to knowing acts of omissions by the school board. As in Keyes v. School District No. 1, it thus also found a constitutional violation. The Court thus rejected arguments that segregated schooling was unconstitutional even if not commanded by state law as in the South. Noting that segregation was the direct result of cognitive acts or omissions by the school board that resulted in an enclave of separate, black schools, the Court found a constitutional violation.

By requiring proof of official segregative purpose, the Court established a significant limiting principle. Despite criticism that the distinction between de jure and de facto segregation is artificial, it is a dividing line between constitutional and unconstitutional. The result in Keyes v. School District No. 1 did not break a two decade tradition of forceful application of the desegregation mandate. The segregative intent standard, however, made proof of a constitutional violation much more difficult. This consequence has become evident in the declining number of instances in which racially segregated schools, although still a widespread phenomenon, presented a constitutional issue.


Mr. Justice BRENNAN delivered the opinion of the Court.

. . . Plainly, a finding of intentional segregation as to a portion of a school system is not devoid of probative value in assessing the school authorities’ intent with respect to other parts of the same school system. On the contrary where, as here, the case involves one school board, a finding of intentional segregation on its part in one portion of a school system is highly relevant to the issue of the board’s intent with respect to the other segregated schools in the system. This is merely an application of the well-settled evidentiary principle that ‘the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent.’ Similarly, a finding of illicit intent as to a meaningful portion of the item under consideration has substantial probative value on the question of illicit intent as to the remainder.

Applying these principles in the special context of school desegregation cases, we hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. This is true even if it is determined that different areas of the school district should be viewed independently of each other because, even in that situation, there is high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the school system, similar impermissible considerations have motivated their actions in other areas of the system. We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann is purpose or intent to segregate. Where school authorities have been found to have practiced purposeful segregation in part of a school system, they may be expected to oppose system-wide desegregation, as did the respondents in this case, on the ground that their purposefully segregative actions were isolated and individual events, thus leaving plaintiffs with the burden of proving otherwise. . .

This burden-shifting principle is not new or novel. There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. . . In the context of racial segregation in public education, the courts, including this Court, have recognized a variety of situations in which “fairness” and “policy” require state authorities to bear the burden of explaining actions or conditions which appear to be racially motivated.

In discharging that burden, it is not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions. The courts below attributed much significance to the fact that many of the Board’s actions in the core city area antedated our decision in Brown. . . .

This is not to say, however, that the prima facie case may not be met by evidence supporting a finding that a lesser degree of segregated schooling in the core city area would not have resulted even if the Board had not acted as it did. . . Thus, if respondent School Board cannot disprove segregative intent, it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools.

The respondent School Board invoked at trial its “neighborhood school policy” as explaining racial and ethnic concentrations within the core city schools, arguing that since the core city area population had long been Negro and Hispano, the concentrations were necessarily the result of residential patterns and not of purposefully segregative policies. We have no occasion to consider in this case whether a “neighborhood school policy” of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting de jure segregation. It is enough that we hold that the mere assertion of such a policy is not dispositive where, as in this case, the school authorities have been found to have practiced de jure segregation in a meaningful portion of the school system by techniques that indicate that the “neighborhood school” concept has not been maintained free of manipulation. . . .

In summary, the District Court on remand, first, will afford respondent School Board the opportunity to prove its contention that the Park Hill area is a separate, identifiable and unrelated section of the school district that should be treated as isolated from the rest of the district. If respondent School Board fails to prove that contention, the District Court, second, will determine whether respondent School Board’s conduct over almost a decade after 1960 in carrying out a policy of deliberate racial segregation in the Park Hill schools constitutes the entire school system a dual school system. If the District Court determines that the Denver school system is a dual school system, respondent School Board has the affirmative duty to desegregate the entire system ‘root and branch.’ If the District Court determines, however, that the Denver school system is not a dual school system by reason of the Board’s actions in Park Hill, the court, third, will afford respondent School Board the opportunity to rebut petitioners’ prima facie case of intentional segregation in the core city schools raised by the finding of intentional segregation in the Park Hill schools. There, the Board’s burden is to show that its policies and practices with respect to schoolsite location, school size, school renovations and additions, student-attendance zones, student assignment and transfer options, mobile classroom units, transportation of students, assignment of faculty and staff, etc., considered together and premised on the Board’s so-called ‘neighborhood school’ concept, either were not taken in effectuation of a policy to create or maintain segregation in the core city schools, or, if unsuccessful in that effort, were not factors in causing the existing condition of segregation in these schools. Considerations of ‘fairness’ and ‘policy’ demand no less in light of the Board’s intentionally segregative actions. If respondent Board fails to rebut petitioners’ prima facie case, the District Court must, as in the case of Park Hill, decree all-out desegregation of the core city schools.

Mr. Justice POWELL concurring in part and dissenting in part.

. . . There is thus no reason as a matter of constitutional principle to adhere to the de jure/de facto distinction in school desegregation cases. In addition, there are reasons of policy and prudent judicial administration which point strongly toward the adoption of a uniform national rule. The litigation heretofore centered in the South already is surfacing in other regions. The decision of the Court today, emphasizing as it does the elusive element of segregative intent, will invite numerous desegregation suits in which there can be little hope of uniformity of result.

The issue in these cases will not be whether regregated education exists. This will be conceded in most of them. The litigation will focus as a consequence of the Court’s decision on whether segregation has resulted in any “meaningful or significant” portion of a school system from a school board’s “segregative intent.” The intractable problems involved in litigating this issue are obvious to any lawyer. The results of litigation—often arrived at subjectively by a court endeavoring to ascertain the subjective intent of school authorities with respect to action taken or not taken over many years—will be fortuitous, unpredictable and even capricious.

The Denver situation is illustrative of the problem. The court below found evidence of de jure violations with respect to the Park Hill schools and an absence of such violations with respect to the core city schools, despite the fact that actions taken by the school board with regard to those two sections were not dissimilar. It is, for example, quite possible to contend that both the construction of Manual High School in the core city area and Barrett Elementary School in the Park Hill area operated to serve their surrounding Negro communities and, in effect, to merge school attendance zones with segregated residential patterns. Yet findings even on such similar acts will, under the de jure/de facto distinction, continue to differ, especially since the Court has never made clear what suffices to establish the requisite “segregative intent” for an initial constitutional violation. Even if it were possible to clarify this question, wide and unpredictable differences of opinion among judges would be inevitable when dealing with an issue as slippery as “intent” or “purpose,” especially when related to hundreds of decisions made by school authorities under varying conditions over many years.

This Court has recognized repeatedly that it is “extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment,” Whatever difficulties exist with regard to a single statute will be compounded in a judicial review of years of administration of a large and complex school system. Every act of a school board and school administration, and indeed every failure to act where affirmative action is indicated, must now be subject to scrutiny. The most routine decisions with respect to the operation of schools, made almost daily, can affect in varying degrees the extent to which schools are initially segregated, remain in that condition, are desegregated, or—for the long term future—are likely to be one or the other. These decisions include action or nonaction with respect to school building construction and location; the timing of building new schools and their size; the closing and consolidation of schools; the drawing or gerrymandering of student attendance zones; the extent to which a neighborhood policy is enforced; the recruitment, promotion and assignment of faculty and supervisory personnel; policies with respect to transfers from one school to another; whether, and to what extent, special schools will be provided, where they will be located, and who will qualify to attend them; the determination of curriculum, including whether there will be “tracks” that lead primarily to college or to vocational training, and the routing of students into these tracks; and even decisions as to social, recreational, and athletic policies.

In Swann the Court did not have to probe into segregative intent and proximate cause with respect to each of these “endless” factors. The basis for its de jure finding there was rooted primarily in the prior history of the desegregation suit. But in a case of the present type, where no such history exists, a judicial examination of these factors will be required under today’s decision. This will lead inevitably to uneven and unpredictable results, to protracted and inconclusive litigation, to added burdens on the federal courts, and to serious disruption of individual school systems. In the absence of national and objective standards, school boards and administrators will remain in a state of uncertainty and disarray, speculating as to what is required and when litigation will strike.

Rather than continue to prop up a distinction no longer grounded in principle, and contributing to the consequences indicated above, we should acknowledge that whenever public school segregation exists to a substantial degree there is prima facie evidence of a constitutional violation by the responsible school board. It is true, of course, that segregated schools—wherever located—are not solely the product of the action or inaction of public school authorities. Indeed, as indicated earlier, there can be little doubt that principal causes of the pervasive school segregation found in the major urban areas of this country, whether in the North, West, or South, are the socio-economic influences which have concentrated our minority citizens in the inner cities while the more mobile white majority disperse to the suburbs. But it is also true that public school boards have continuing, detailed responsibility for the public school system within their district and, as Judge John Minor Wisdom has noted, “(w)hen the figures (showing segregation in the schools) speak so eloquently, a prima facie case of discrimination is established.” Moreover, as foreshadowed in Swann and as implicitly held today, school boards have a duty to minimize and ameliorate segregated conditions by pursuing an affirmative policy of desegregation. It is this policy which must be applied consistently on a national basis without regard to a doctrinal distinction which has outlived its time. . . .


Barnes, Craig. “A Personal Memoir of Plaintiffs’ Co-Counsel in Keyes v. School District No. 1.” Denver University Law Review 90 (2013): 1059.

Goodman, Frank I. “De Facto Segregation: A Constitutional and Empirical Analysis.” California Law Review 60 (1972): 275.

Karst, Kenneth L. “Not One Law at Rome and Another at Athens: The Fourteenth Amendment in Nationwide Application.” Washington University Law Quarterly 3 (1972).

Tuttle, William, Jr. Race Riot: Chicago in the Red Summer of 1919. New York: Atheneum, 1971.

Milliken v. Bradley

Citation: 418 U.S. 717.

Issue: Whether suburban schools could be included in a plan to desegregate schools in a major city.

Year of Decision: 1974.

Outcome: An interdistrict desegregation plan was permissible only if segregation in one district was the result of purposeful segregative action by officials in the other district.

Author of Opinion: Chief Justice Warren Burger.

Vote: 5-4.

Racial segregation outside the South is grounded in processes that were less formal and comprehensive but nonetheless effective in achieving separation of the races. During the early twentieth century, many African Americans moved northward in search of economic opportunity and to escape the harsh racial realities of the South. This migration coincided with industrial expansion and demand for labor in the North’s large cities. It was spurred further by World War II and its demands for increased factory productivity.

Although a source of economic opportunity, the North was not a haven from racial prejudice. Northern states did not have the comprehensive systems of racial management that typified the South. African Americans who relocated there, however, were routed into separate neighborhoods by legal and extralegal processes. Segregated housing was established and maintained pursuant to restrictive covenants. These private agreements barred a homeowner from selling his or her dwelling to persons of a different race. Federal lending policies prohibited loans to home buyers whose purchase would undermine racially identifiable neighborhoods. Neighborhood schools in the North thus reflected residential demographics and thus became segregated on the basis of race. School district boundaries, pupil placement policies, and faculty recruiting and assignments further reflected these realities.

The duty to desegregate racially segregated public schools, set forth in Brown v. Board of Education (1954), arose in the context of other significant changes. The advent of the automobile and emergence of suburban communities reflected an increasingly mobile society. The movement of families to new middle class and upper class communities near but apart from traditional urban centers resulted in school systems that did not even exist when Brown v. Board of Education (1954) was decided. These communities, although composed of persons who might have supported or facilitated segregation in their previous environment, had no history of segregation themselves. Minus this legacy, there was no record of the segregative intent that the Court had identified as the key prerequisite for an equal protection violation. As Justice Lewis Powell put it, “[t]he type of state-enforced segregation that Brown condemned no longer exists in this country.” Despite this change, public schools in major cities reflected the historical realities of racial discrimination. Coupled with the accelerated exodus of white families to suburban communities, urban schools increasingly became racially identifiable. In cities like Baltimore, Detroit, New York, and Washington, D.C., African American students ranged from 70 percent to more than 90 percent of total enrollments. Even in the event of a constitutional violation in such circumstances, a desegregation order could not alter racial makeup of the system if it did not cross district lines.

In Milliken v. Bradley (1974), the Court considered the permissibility of interdistrict remedies as a means of achieving desegregation in function as well as in form. At issue was a federal district court order requiring desegregation of public schools in the Detroit metropolitan area. The order was based upon detailed findings that segregation was the result of purposeful action by the city and state. In particular, the lower court found that segregated schools were attributable in part to the school board’s attendance, transportation, and school siting policies. The trial court found that the state also had caused segregated schools by nullifying a voluntary desegregation plan, using transportation to maintain segregation, and signing off on pupil assignment plans that created racially identifiable schools.

The Supreme Court, although conceding that segregation in Detroit was the result of purposeful government action, refused to uphold the interdistrict remedy. Chief Justice Warren Burger, writing for a 5-4 majority, found that responsibility for the segregated schools extended no further than the city itself. Unless the state or suburbs had engaged in actions that purposefully contributed to the segregated conditions, the Court determined that they had no obligation to participate in the desegregation process. The Court thus concluded that the scope of the district court’s remedy exceeded that of the violation. This understanding left open the possibility of interdistrict relief in theory, but limited it to the rare instance in which purposeful action to cause segregation in another community could be demonstrated.

The basic principle of Milliken v. Bradley, that the relief must not exceed the scope of the constitutional violation, has been criticized on grounds that the Court understated the state’s role in causing segregation. The result nonetheless was a significant barrier to desegregation plans that would achieve racial mixing. For practical purposes, it also demonstrated that desegregation did not necessarily require integration. Even if caused by intentional government action, segregation could be addressed only with the obvious constraint of demographic limitations. Desegregation under such circumstances thus meant ridding the system of factors that caused racially identifiable schools but did not require the elimination of racial segregation conditions themselves.

Justice Byron White, in a dissenting opinion, contended that the Court effectively had denied a needed and justifiable remedy. Justice White pointed out that the actions and policies of state public school officials over many years were a primary cause of segregated schools in Detroit, so remedial responsibility extended beyond the city limits. The state’s role, although a basis for the district court’s order, was minimized by the majority. Reversal of the district court represented a significant turnabout from the Supreme Court’s interaction with lower courts during the first two decades of school desegregation. After years of dissatisfaction with the failure of lower courts to press the desegregation mandate, the Court in Milliken v. Bradley expressed displeasure with the district court pushing too hard. As Justice Thurgood Marshall saw it, the outcome provided “no remedy at all . . . guaranteeing that Negro children . . . will receive the same separately and inherently unequal education in the future as they have in the past.”

The Court’s ruling defined the outer limits of the desegregation principle with respect to geography and prefaced a similar restriction with respect to time. Two years later, in Pasadena City Board of Education v. Spangler (1976), the Court determined that school districts that had achieved desegregation were not obligated to maintain an integrated condition. To the extent that white flight or other factors may cause resegregation, and unless official action recreates a dual school system based upon race, no constitutional duty exists to preserve the fruits of desegregation. From Justice William Rehnquist’s perspective, demographic change that unsettled the results of desegregation were attributable to the quite normal pattern of human migration. Dissenting as he did in Milliken, Justice Marshall argued that a state that created a system where whites and Negroes were intentionally kept apart so that they could not become accustomed to learning together is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs.

The curtailment of desegregation demands during the 1970s reflected a growing attitude that conditions addressed in 1954 either had been accounted for or had changed. As Justice Powell saw it, segregated schools had become a function of familiar segregated housing patterns . . . caused by social, economic, and demographic forces for which no school board is responsible. Despite the Court’s initial resolve to have its orders implemented, the marking of desegregation boundaries two decades after Brown indicated a growing sense of limits to the judiciary’s own influence. Consistent with this perspective, Justice Rehnquist observed that even if the Constitution required it, and it were possible for federal courts to do it, no equitable decree can fashion an Emerald City where all races, ethnic groups, and persons of various income levels live side by side. By the century’s final decade, the Court itself had downscaled not just the principle but the rhetoric of desegregation. No longer would school systems be required to eliminate all vestiges of racial discrimination root and branch. Rather, as pointed out in Board of Education of Oklahoma City Public Schools v. Dowell (1991), good faith compliance with desegregation requirements was to be measured by whether those vestiges had been eradicated to the extent practicable.


Mr. Chief Justice BURGER delivered the opinion of the Court.

. . . The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.

The record before us, voluminous as it is, contains evidence of de jure segregated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based and on which the District Court took evidence. With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court. . . .

Petitioners have urged that they were denied due process by the manner in which the District Court limited their participation after intervention was allowed, thus precluding adequate opportunity to present evidence that they had committed no acts having a segregative effect in Detroit. In light of our holding that, absent an interdistrict violation, there is no basis for an interdistrict remedy, we need not reach these claims. It is clear, however, that the District Court, with the approval of the Court of Appeals, has provided an interdistrict remedy in the face of a record which shows no constitutional violations that would call for equitable relief except within the city of Detroit. In these circumstances there was no occasion for the parties to address, or for the District Court to consider whether there were racially discriminatory acts for which any of the 53 outlying districts were responsible and which had direct and significant segregative effect on schools of more than one district.

We conclude that the relief ordered by the District Court and affirmed by the Court of Appeals was based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts effected the discrimination found to exist in the schools of Detroit. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion leading to prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970.

Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice WHITE join, dissenting.

In Brown v. Board of Education, this Court held that segregation of children in public schools on the basis of race deprives minority group children of equal educational opportunities and therefore denies them the equal protection of the laws under the Fourteenth Amendment. This Court recognized then that remedying decades of segregation in public education would not be an easy task. Subsequent events, unfortunately, have seen that prediction bear bitter fruit. But however imbedded old ways, however ingrained old prejudices, this Court has not been diverted from its appointed task of making “a living truth” of our constitutional ideal of equal justice under law.

After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutional violation, the Court’s answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past.

I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent. Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. I agree with both the District Court and the Court of Appeals that, under the facts of this case, this duty cannot be fulfilled unless the State of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis either in law or in the practicalities of the situation justifying the State’s interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy. Under established and frequently used Michigan procedures, school district lines are both flexible and permeable for a wide variety of purposes, and there is no reason why they must now stand in the way of meaningful desegregation relief.

The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together. . . .


Drake, St. Clair, and Horace R. Clayton. Black Metropolis. New York: Harcourt, Brace and Co., 1945.

Jones, Nathaniel R. “Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall.” Fordham Law Review 61 (1992): 49.

Washington v. Davis

Citation: 426 U.S. 229.

Issue: Whether a test to screen police officer candidates was unconstitutional because a disproportionate number of African Americans failed it.

Year of Decision: 1976.

Outcome: Proof of discriminatory motive is an essential prerequisite for an equal protection violation.

Author of Opinion: Justice Byron White.

Vote: 5-4.

The equal protection guarantee during the final half of the twentieth century established itself as the primary constitutional barrier against racial discrimination. Determining what constitutes discrimination, however, was not a simple task. Government action or policy may have a disproportionate impact upon individuals based, among other things, upon their group status. Placement of a solid waste disposal site near a poor neighborhood, for instance, may impose a disparate burden upon members of a historically disadvantaged racial minority. Whether this action constitutes racial discrimination, however, depends upon how the term is defined.

In the context of school desegregation, the Court differentiated between de jure and de facto segregation. De jure segregation, which reflects an official segregative purpose, is constitutionally prohibited. De facto segregation, which is a consequence of private choice, has no constitutional implications. This distinction, made in Keyes v. School District No. 1 (1973), narrowed the reach of desegregation to circumstances where an actual purpose to segregate could be demonstrated. Put another way, the equal protection guarantee’s concern was with segregative intent rather than segregative effect.

Whether discrimination should be understood in terms of purpose or effect is a question that extended beyond segregated schools. In Washington v. Davis (1976), the issue arose with respect to an employment test administered by the Washington, D.C., police department to all officer candidates. The examination, which assessed verbal ability, vocabulary, and reading, yielded racially disparate results. The number of African Americans failing the test was four times greater than for whites. Despite these disproportionate results, the trial court found that the examination was reasonably related to police training and performance. It also determined that the examination was not designed or utilized in a manner that discriminated on the basis of race. The trial court’s ruling was reversed by the Court of Appeals, which concluded that the disproportionate impact by itself established an equal protection violation. As the Court of Appeals viewed it, the constitutional offense was not dependent upon a showing of discriminatory purpose.

The Supreme Court sided with the trial court and reversed the Court of Appeals ruling. It thus determined that the unconstitutionality of government action cannot rest solely on the basis of a racially disproportionate impact. Rather, there must be proof that it was motivated by a discriminatory purpose. In finding that disproportionate effect by itself did not establish a constitutional violation, the Court noted too that disparity was not entirely irrelevant. Discrimination is not always self-evident, particularly when potential violators know that it is illegal and thus are motivated to disguise the true nature of their actions. Laws that may be racially neutral on their face also may be applied in a discriminatory manner. In this regard, the Court referenced Yick Wo v. Hopkins (1886). This case concerned a city ordinance prohibiting the operation of laundries in wood frame buildings. Although racially neutral on its face, this law was struck down because it was applied only to persons of Chinese descent.

Identifying a discriminatory purpose is uncomplicated when the law speaks openly with respect to its intent. Discerning a discriminatory purpose was easy, for instance, when enactments typical of the separate but equal era were challenged. Once segregation and discrimination were declared unconstitutional, however, overt indications of purposeful wrongdoing became harder to pinpoint. Against this backdrop, the Court indicated that discriminatory purpose might be inferred from a variety of factors including disproportionate impact. It also might be identified in circumstances where disproportionality is difficult to explain on nonracial grounds.

When discriminatory purpose is identified, the Court intensifies its review to the level of “strict scrutiny.” Pursuant to this standard, a state must demonstrate that its action is justified by compelling reasons and is narrowly tailored to achieve the result desired. Disproportionate effect alone does not trigger this high level of review. When present without a showing of discriminatory purpose, the question is whether the action or regulation reflects a legitimate state interest and is reasonably related to its goal. Viewing the police candidate test itself as a legitimate method for determining critical skills, the Court found that it was racially neutral and reasonably related to its objective.

The Court’s refusal to give greater weight to disproportionate effect reflected concern with making any difference the basis for a constitutional controversy. Such an orientation, the Court feared, would “rais[e] serious questions about and possibly invalidat[e] a whole range of tax, welfare, public service, regulatory and licensing statutes.” These laws by their nature have disparate consequences, but they generally are not motivated by a purpose to discriminate.

In narrowing the range of the equal protection guarantee’s concern, the decision in Washington v. Davis set the scene for controversy over how purposeful discrimination is demonstrated. In Arlington Heights v. Metropolitan Housing Development Corp. (1977), one year later, the Court reviewed a local zoning ordinance that limited land use to single family dwellings. Because the village denied an application to construct racially integrated housing, the zoning decision was challenged on grounds it discriminated on the basis of race. The Court acknowledged that “[t]he impact of the Village’s decision does arguably bear more heavily on racial minorities.” It found no evidence of discriminatory purpose, however, and restated the proposition that disproportionate effect by itself does not establish a constitutional violation or basis for strict scrutiny.

The Court indicated its awareness that proof of discriminatory purpose may be more challenging when a racial motive is not stated or otherwise manifest. It thus suggested ways in which discriminatory purpose may be inferred from relevant circumstances. Toward this end, it noted relevant factors such as “the historical background of a decision including any indications of invidious purposes, departures from normal procedures, changes in standards for decision-making, and legislative or administrative history including contemporaneous remarks by officials.”

Collectively, these factors signaled that history is particularly relevant as a means of drawing inferences of discriminatory purpose. A decade later, in McCleskey v. Kemp (1987), the Court heard arguments against the Georgia death penalty that referenced the history of a dual system of criminal justice. The Court also was presented with a report that showed major disparities in the administration of capital punishment. Evidence showed that prosecutors pursued the death penalty in 70 percent of the cases involving black defendants and white victims, 32 percent of the cases involving white defendants and black victims, 15 percent of the cases involving black defendants and black victims, and 19 percent of the cases involving white defendants and black victims. The death penalty was applied in 22 percent of the cases involving black defendants and white victims, 1 percent of the cases involving black defendants and black victims, and 3 percent of the cases involving white defendants and black victims. The Court, in reviewing this evidence, reaffirmed the premise that disproportionality by itself does not establish an equal protection violation or basis for strict scrutiny. It also described the disparate results as a “discrepancy that appears to correlate with race . . . [and] an inevitable part of our criminal justice system.”

Justice William Brennan authored a dissenting opinion that was joined by three other justices. Justice Brennan maintained that the Court had ignored historical reality and thus the factor that it had declared relevant. On this point, he cited a long tradition in Georgia of operating a dual system of criminal justice system. Of particular consequence, given this history, was the practical consequence for counsel when having to advise defendants in capital cases on whether to accept a plea bargain. In his view, an attorney in this context could not ignore the potential for outcomes that differed on the basis of race. As Justice Brennan put it, “[a]t some point in this case, [the defendant] doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid assessment by the attorney invariably would include the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.”

Although a settled premise of the law, the discriminatory purpose standard still is a magnet for criticism. Among its detractors is the noted constitutional scholar Laurence Tribe, who contends that equal protection is not just about “stamp[ing] out impure thoughts.” Rather, it should factor “government action which in the light of history, context, source, and effect are likely to perpetuate subordination of or reflect hostility, blindness or indifference toward a group that traditionally has been subjugated.” Other critics, such as Charles Lawrence III, argue that motive-based inquiry is obsolete and unproductive because it overlooks or cannot detect subtle discrimination and unconscious racism.

Chief Justice William Rehnquist, who joined the majority in Village of Arlington Heights v. Metropolitan Housing Authority, also has expressed concern with motive-based inquiry in other constitutional contexts. In a commerce clause case that raised the question of whether a state transportation regulation discriminated against out-of-state highway users, Chief Justice Rehnquist dissented from an inquiry into actual intent. His concern, in Kassel v. Consolidated Freightways Corp. (1981), was that legislative intent generally was indeterminable.

Justice Antonin Scalia, although signing on to discriminatory motive inquiry for equal protection purposes, also has described it as a usually impossible task. In Edwards v. Aguillard (1987), Justice Scalia identified a multiplicity of reasons why a legislator might vote for a particular outcome. As he put it, a legislator might vote in a particular manner based not only on the merits of the legislation but whether it would provide jobs for his district, might enable him or her to make amends with a previously alienated political faction, was sponsored by a close friend, presented an opportunity to repay a favor to another politician, earned him appreciation from influential colleagues or wealthy contributors, represented the strong will of his or her constituency, was a way of getting even with a political nemesis or even a spouse that had made him or her mad, or whether it was voted on while he or she was intoxicated and [thus] utterly unmotivated.

Consistent with his understanding that a legislated outcome may reflect any combination of these and other motivations, Justice Scalia maintained that “looking for the sole purpose of even a single legislator is probably to look for something that does not exist.”

Consistent with the difficulty of establishing discriminatory motive, when this factor is not manifest, the success rate of equal protection claims over the past few decades has diminished. The most notable equal protection victories in contemporary times concern cases challenging racial preferences in employment and education. Like official segregation, and although differing with respect to utility and objective, these programs have a manifest racial orientation. Based upon these decisions, equal protection review responds primarily to formality and has yet to develop the capacity to factor more subtle or disguised variants of discrimination.


Mr. Justice WHITE delivered the opinion of the Court.

. . . The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. . . .

The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of De jure segregation is “a current condition of segregation resulting from intentional state action. The Court has also recently rejected allegations of racial discrimination based solely on the statistically disproportionate racial impact of various provisions of the Social Security Act because “(t)he acceptance of appellants’ constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be.”

This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law’s disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. . . With a prima facie case made out, “the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.”

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact in the jury cases for example, the total or seriously disproportionate exclusion of Negroes from jury venires may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule. . . .

As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies “any person . . . equal protection of the laws” simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. . . .


Brest, Paul. “Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive.” Supreme Court Review 95 (1971).

Haney-López, Ian. “Intentional Blindness.” New York University Law Review 87 (2012): 1779.

Lawrence III, Charles R. “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism.” Stanford Law Review 39 (1987): 317.

Ortiz, Daniel R. “The Myth of Intent in Equal Protection.Stanford Law Review 41 (1989): 1105.

Straus, David A. “Discriminatory Intent and the Taming of Brown.” University of Chicago Law Review 56 (1989): 935.

Regents of the University of California v. Bakke

Citation: 438 U.S. 265.

Issue: Whether a public university medical school’s admissions policy, which reserved some seats for designated minorities, violated the equal protection guarantee.

Year of Decision: 1978.

Outcome: Race cannot be an exclusive factor in the admissions process, but it may be used as one of several factors in achieving a diverse student body.

Author of Opinion: No majority opinion.

Vote: 4-4-1.