North Carolina Bd. of Ed. v. Swann, 402 U.S. 43 (1971)
402 U.S.
43
91 S.Ct. 1284.
28 L.Ed.2d 586
NORTH CAROLINA STATE BOARD OF EDUCATION et
al., Appellants,
v.
James E. SWANN et al.
No. 498.
Argued Oct. 13, 1970.
Decided April 20, 1971.
Syllabus
North Carolina's Anti-Busing Law, which flatly forbids assignment of any
student on account of race or for the purpose of creating a racial balance
or ratio in the schools and which prohibits busing for such purposes, held
invalid as preventing implementation of desegregation plans required by
the Fourteenth Amendment. Pp. 4546.
312 F.Supp. 503, affirmed.
Andrew A. Vanore, Jr., Raleigh, for State Bd. of Ed. and others.
James M. Nabrit, III, New York City, for James E. Swann and others.
Mr. Chief Justice BURGER delivered the opinion of the Court.
This case is here on direct appeal pursuant to 28 U.S.C. 1253 from the
judgment of a three-judge court in the United States District Court for the
Western District of North Carolina. The District Court declared unconstitutional
a portion of the North Carolina General Statutes known as the Anti-Busing
Law,1 and granted an injunction against its enforcement.2 The proceeding
before the three-judge court was an ancillary proceeding connected with the
school desegregation case heretofore discussed, Swann v. CharlotteMecklenburg, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. The instant appeal
was taken by the North Carolina State Board of Education and four state
officials. We granted the Charlotte - Mecklenburg school board's motion to join
in the appeal, 400 U.S. 804, 91 S.Ct. 11, 27 L.Ed.2d 34 (1970).
2
When the litigation in the Swann case recommenced in the spring of 1969, the
District Court specifically directed that the school board consider altering
attendance areas, pairing or consolidation of schools, bus transportation of
students, and any other method which would effectuate a racially unitary
system. That litigation was actively prosecuted. The board submitted a series of
proposals, all rejected by the District Court as inadequate. In the midst of this
litigation over the remedy to implement the District Court's order, the North
Carolina Legislature enacted the anti-busing bill, set forth in relevant part in
footnote 1.
Following enactment of the anti-busing statute the plaintiffs in the Swann case
obtained leave to file a supplemental complaint which sought injunctive and
declaratory relief against the statute. They sought to convene a three-judge
court, but no action was taken on the requests at that time because the school
board thought that the anti-busing law did not interfere with the school board's
proposed plan to transport about 4,000 Negro children to white suburban
schools. 306 F.Supp. 1291 (WDNC 1969). Other parties were added as
defendants by order of the District Court dated February 25. In addition, certain
persons who had brought a suit in state court to enjoin or impede the order of
the federal court, the attorneys for those litigants, and state judges who at
various times entered injunctions against the school authorities and blocked
compliance with orders of the District Court were also joined; a three-judge
court was then convened.
We observed in Swann, supra, 402 U.S., at 16, 91 S.Ct., at 1276, that school
authorities have wide discretion in formulating school policy, and that as a
matter of educational policy school authorities may well conclude that some
kind of racial balance in the schools is desirable quite apart from any
constitutional requirements. However, if a state-imposed limitation on a school
authority's discretion operates to inhibit or obstruct the operation of a unitary
school system or impede the disestablishing of a dual school system, it must
fall; state policy must give way when it operates to hinder vindication of federal
constitutional guarantees.
The legislation before us flatly forbids assignment of any student on account of
race or for the purpose of creating a racial balance or ratio in the schools. The
prohibition is absolute, and it would inescapably operate to obstruct the
remedies granted by the District Court in the Swann case. But more important
the statute exploits an apparently neutral form to control school assignment
plans by directing that they be 'color blind'; that requirement, against the
background of segregation, would render illusory the promise of Brown v.
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Just as
the race of students must be considered in determining whether a constitutional
violation has occurred, so also must race be considered in formulating a
remedy, To forbid, at this stage, all assignments made on the basis of race
would deprive school authorities of the one tool absolutely essential to
fulfillment of their constitutional obligation to eliminate existing dual school
systems.
6
Similarly the flat prohibition against assignment of students for the purpose of
creating a racial balance must inevitably conflict with the duty of school
authorities to disestablish dual school systems. As we have held in Swann, the
Constitution does not compel any particular degree of racial balance or mixing,
but when past and continuing constitutional violations are found, some ratios
are likely to be useful starting points in shaping a remedy. An absolute
prohibition against use of such a deviceeven as a starting pointcontravenes
the implicit command of Green v. County School Board, 391 U.S. 430, 88 S.Ct.
1689, 20 L.Ed.2d 716 (1968), that all reasonable methods be available to
formulate an effective remedy.
We likewise conclude that an absolute prohibition against transportation of
students assigned on the basis of race, 'or for the purpose of creating a balance
or ratio,' will similarly hamper the ability of local authorities to effectively
remedy constitutional violations. As noted in Swann, supra, 402 U.S., at 29, 91
S.Ct., at 1282, bus transportation has long been an integral part of all public
educational systems, and it is unlikely that a truly effective remedy could be
devised without continued reliance upon it.
The remainder of the order of the District Court is affirmed for the reasons
stated in its opinion, 312 F.Supp. 503.
Affirmed.
So far as here relevant, N.C.Gen.Stat. 115176.1 (Supp.1969) reads as
follows:
'No student shall be assigned or compelled to attend any school on account of
race, creed, color or national origin, or for the purpose of creating a balance or
ratio of race, religion or national origins. Involuntary bussing of students in
contravention of this article is prohibited, and public funds shall not be used for
any such bussing.'
2
312 F.Supp. 503 (1970). The opinion as printed grants only declaratory relief.
However, the District Court amended its original opinion by withdrawing Part
V and entering an order dated June 22, 1970, which enjoined all parties 'from
enforcing, or seeking the enforcement of,' the portion of the statute found
unconstitutional.
