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The Urban Review

, Volume 10, Issue 2, pp 149–156 | Cite as

Discussion of papers presented by Nathaniel R. Jones and Daniel D. Polsby

  • Robert Allen Sedler
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Footnotes

  1. 1.
    See Sedler, Metropolitan Desegregation in the Wake ofMilliken-On Losing Big Battles and Winning Large Wars: The View Largely from Within, 1975Washington Univ. L.Q. 535. TheMilliken case isMilliken v.Bradley, 418 U.S. 717 (1974).Google Scholar
  2. 2.
    I was chief in the Louisville-Jefferson County case,Newburg Area Council v.Board of Education of Jefferson County, Kentucky, 489 F.2d 925 (6th Cir. 1973),vacated and remanded, 418 U.S. 918 (1974),reinstated, 510 F.2d 1358 (6th Cir. 1974),cert. denied, 421 U.S. 931 (1975), and am now co-counsel in the Atlanta metropolitan desegregation case,Armour v.Nix, Civil No. 16708, U.S. Dist. Ct., N.D. Ga.Google Scholar
  3. 3.
    Subsequent to this conference, the United States came down on the side of metropolitan desegregation in the Wilmington-New Castle County, Delaware case, now pending before the Third Circuit.Google Scholar
  4. 4.
    Brown v.Board of Education I, 347 U.S. 483 (1954).Google Scholar
  5. 5.
    InKeyes v.School District No. 1, Denver, 413 U.S. 189 (1973), Mr. Justice Douglas and Mr. Justice Powell, coming from different directions and reaching ultimately different conclusions, urged the Court to treat all racial segregation in the schools in the same way, regardless of cause. For the expression of a similar view by an “opponent of busing,” see L. Graglia,Disaster by Decree 86 (1976).Google Scholar
  6. 6.
    Keyes v.School District No. 1, Denver, supra, note 5. [T]he differentiating factor between de jure segregation and so-called de facto segregation is purpose or intent to segregate.”Id. at 208.Google Scholar
  7. 7.
    To use Professor Polsby's terms.Google Scholar
  8. 8.
    By a racially identifiable school is meant a school having so few blacks, considering the black-white composition of the school district as a whole, that it will be perceived of as a racially-identifiable white school, or so many blacks, considering the black-white composition, that it will be perceived of as a racially-identifiable black school.Google Scholar
  9. 9.
    Davis v.Board of School Commissioners, 402 U.S. 33 (1971).Google Scholar
  10. 10.
    Seee.g., Medley v. School Board of City of Danville, 482 F.2d 1061 (4th Cir. 1973),cert. denied, 414 U.S. 1172 (1974);Goss v. Board of Education of Knoxville, 482 F.2d 1044 (6th Cir. 1973),cert. denied, 414 U.S. 1171 (1974).Google Scholar
  11. 11.
    418 U.S. 754 (1974).Google Scholar
  12. 12.
    347 U.S. at 495, and deprived black children of “some of the benefits they would receive in a racially integrated school system.”Id. at 494.Google Scholar
  13. 13.
    Seee.g., Washington v.Davis, 426 U.S. 299 (1976);Village of Arlington Heights v. Metropolitan Housing Development Corp., __U.S.__, 97 S.Ct. 555 (1977).Google Scholar
  14. 14.
    The California Supreme Court has rejected thede jure-de facto distinction and held that all racial segregation is harmful to black children, so that school boards have an obligation to take affirmative action to eliminate actual segregation. Seee.g., Crawford v.Board of Education of City of Los Angeles, 17 Cal. 3d 280, 551 P.2d 28 (1976).Google Scholar
  15. 15.
    Swann v.Charlotte-Mecklenburg-Board of Education, 402 U.S. 1 (1971).Google Scholar
  16. 16.
    Seee.g., United States v.School District of Omaha, 521 F.2d 530 (8th Cir. 1975), and the numerous cases cited by the court at 535, n. 7.Google Scholar
  17. 17.
    Keyes v.School District No. 1, Denver, supra, note 5.Google Scholar
  18. 18.
    Except for those living in parts of the district that it is “impracticable” to desegregate. In my view all the schools should be desegregated unless it can be shown-which is highly unlikely-that the time or distance involved in busing is “so great as to risk either the health of the children or significantly impinge on the educational process.”Swann, supra, note 14 at 30–31.Google Scholar
  19. 19.
    In addition to many of the papers presented at this conference, see the discussion in Sedler,supra, note 1 at 538–543.Google Scholar
  20. 20.
    In some urban areas, however, it is still possible to achieve meaningful desegregation within the boundaries of the urban district alone.Google Scholar
  21. 21.
    See generally Sedler,supra, note l at 571–584.Google Scholar
  22. 22.
    Newburg Area Council v.Board of Education of Jefferson County, Kentucky, supra, note 1.Google Scholar
  23. 23.
    Evans v.Buchanan, 393 F. Supp. 428 (D. Del.),aff'd. mem., 423 U.S. 963 (1975).Google Scholar
  24. 24.
    United States v.Missouri, 515 F.2d 1365 (8th Cir.),cert. denied, 423 U.S. 951 (1975).Google Scholar
  25. 25.
    See the discussion of this point inHills v.Gautreaux, 425 U.S. 284, 297–298 (1976).Google Scholar
  26. 26.
    418 U.S. at 741,Google Scholar
  27. 27.
    In the Indianapolis-Marion County, Indiana situation, the Seventh Circuit upheld the imposition of an inter-district remedy on the dual grounds that the exclusion of the schools from the Uni-Gov plan for Indianapolis-Marion County by the state legislature had a racially discriminatory effect, and that the government was responsible for urban-suburban racial residential segregation, although the latter point had not been extensively developed in the record.United States v.Board of School Commissioners of City of Indianapolis, 541 F.2d 1211 (7th Cir. 1976). The Supreme Court vacated the judgment and remanded the case for a reconsideration of the matter of “intent to discriminate.” 97 S. Ct. 801 (1977).Google Scholar
  28. 28.
    See generally the discussion of this case in Sedler,supra, note 1 at 584–600.Google Scholar
  29. 29.
    See the discussion of this point in Sedler,supra, Note 1 at 581-582.Google Scholar
  30. 30.
    See the discussion in Sedler,supra, note 1 at 579–584,Google Scholar
  31. 31.
    And for the patterns of racial residential segregation that exist within the city itself.Google Scholar
  32. 32.
    Just as in school desegregation cases, the school board is required to come up with a desegregation plan. Here the involved governments-federal, state and local-should be required to come up with an “access to suburbia” plan, including, for example, the construction of public housing, provision for subsidized low-income housing, suspension of zoning laws that impeded black movement to the suburbs, “affirmative recruiting” of black residents and the like.C.f. the discussion inHills v.Gautreaux, supra, note 24 at 300–306.Google Scholar
  33. 33.
    Since white children have no constitutional right to avoid going to school with black children,Brown I, and no constitutional right to avoid being bused away from a “neighborhood school,”Swann, busing them to schools located in the urban district raises no constitutional question. And if it had not been for state-imposed discrimination, presumably some of them would be residing in the suburban districts.Google Scholar
  34. 34.
    InSwann, however, the Court did note that, “We do not reach in this case the question of whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree.” 402 U.S. at 23.Google Scholar
  35. 35.
    As embodied in Art. VI, Sect. 2.Google Scholar
  36. 36.
    418 U.S. at 755.Google Scholar
  37. 37.
    There were other factors as well.Google Scholar
  38. 38.
    Seee.g., Swann.Google Scholar
  39. 39.
    It has already been held that racial discrimination was practiced in regard to public housing and that because of such discrimination, the Atlanta Housing Authority failed to locate public housing in Fulton County, although it had the statutory authority to do so.Crow v.Brown, 332 F. Supp. 372 (N.D. Ga. 1971),aff'd., 457 F.2d 788 (5th Cir. 1972)Google Scholar
  40. 40.
    Thus, inCalhoun v.Cook, 522 F.2d 717 (5th Cir. 1975), the Fifth Circuit affirmed a finding that the Atlanta school system was unitary, although 92 out of its 148 schools had student bodies that were over 90% black. The court noted, however, that the matter of metropolitan desegregation remained to be decided inArmour v.Nix.Google Scholar
  41. 41.
    Milliken v.Bradley, at 802 (Marshall, J., dissenting).Google Scholar

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© Agathon Press, Inc. 1978

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  • Robert Allen Sedler

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