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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

S, Swann v. Charlotte-Mecklenburg Board of Education,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 July 2020

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, argued 12 Oct. 1970, decided 20 Apr. 1971 by vote of 9 to 0; Burger for the Court. A logical extension of *Green v. County School Board of New Kent County (1968), Swann nonetheless represented a further—and highly controversial—milestone in the Supreme Court’s effort, following *Brown v. Board of Education II (1955), to effectuate the desegregation of southern public schools. Swann is best known for its approval of busing as a tool to achieve desegregation. But in thirty pages—the longest school desegregation opinion then to date—the Court, still unanimous, supplied broad guidelines to federal district judges still faced with dual school systems fifteen years after Brown II.

Unlike many previous important school desegregation cases involving small rural districts, Swann arose from a sprawling, part-urban, part-rural district covering 550 square miles and serving 84,000 pupils in 101 schools. The school population was 29 percent black, and those pupils were concentrated in one quadrant of Charlotte. The district operated under a court-ordered desegregation plan that focused on geographic zoning and free transfers, but even then more than half of the black pupils attended schools without any white students or teachers. After Green, the federal district court announced that the rules of the game had changed and adopted a sweeping plan to disperse the highly concentrated black-student population under a program that would transport an additional 13,000 children in more than 100 new buses at an annual operating cost of more than $500,000 and a startup cost of more than $1 million.

The Supreme Court approved the plan in a disarmingly simple opinion. After deploring “deliberate resistance” to Brown II and other “dilatory tactics,” the Court announced that new guidelines were necessary in light of Green (p. 13). Once a constitutional violation was found, the question of the scope of the remedy became a routine issue of the appropriate use of remedial powers in equity. Chief Justice Warren *Burger’s opinion, which recent evidence has shown to have been the product of desperate and extensive negotiation among the justices, is important mainly for two features: its treatment of “mathematical ratios” for school composition and its approval of the trial court’s transportation method for effectuating pupil transfers between schools.

In upholding the trial court’s order that efforts be made to reach a 71:29 (white-to-black) ratio in the various schools, the Supreme Court observed that the “constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole” but only that “the very limited use of mathematical ratios was within the equitable remedial discretion of the District Court” (pp. 24–25). Burger did not explain whether there were any limitations on the use of ratios aimed to achieve racial balance in the schools—absent, hypothetically, the eventual achievement of a unitary system.

The opinion was even more elliptical on the focal point of the case: busing. After noting that 39 percent of public school children nationally are bused to school, Burger declared that freedom of choice would not eliminate the dual system and that busing and other remedial techniques, such as redrawing attendance zones, were within the district court’s power to provide equitable relief: “Desegregation plans cannot be limited to the walk-in school” (p. 30). Finally, Burger construed Title VI of the *Civil Rights Act of 1964, which appeared to reaffirm Brown but seemed inconsistent with Green, as not disturbing the Court’s rulings and thus as not circumscribing the district court’s plan. In a companion case, North Carolina State Board of Education v. Swann (1971), Burger held that a state could not prohibit racially explicit transportation or assignment of schoolchildren without violating Brown.

Despite Swann’s frank approval of wholesale, districtwide supervision of affected public schools by federal district courts, the opinion did contain two limitations on equitable discretion that would quickly loom large. Burger stated several times, in different words, that the scope of the constitutional violation determined the scope of the remedy. He also declared that the district court’s jurisdiction ended when remediation had been achieved to the point where the system was once again “unitary.” The former point shaped the decision in *Milliken v. Bradley (1974); the latter presaged *Pasadena Board of Education v. Spangler (1976).

See also desegregation remedies; race and racism; segregation, de jure.

Bernard Schwartz, Swann’s Way (1986).

Dennis J. Hutchinson