Columbus Board of Education v. Penick

• Decision Date: 11 August 1978
• Docket Number: No. A-134,A-134
• Citation: 99 S.Ct. 24,439 U.S. 1348,58 L.Ed.2d 55
• Parties: COLUMBUS BOARD OF EDUCATION et al., Applicants, v. Gary L. PENICK et al
• Court: U.S. Supreme Court

439 U.S. 1348

99 S.Ct. 24

58 L.Ed.2d 55

COLUMBUS BOARD OF EDUCATION et al., Applicants,

v Gary L. PENICK et al.

No. A-134.

Aug. 11, 1978.

Mr. Justice REHNQUIST.

The Columbus, Ohio, Board of Education and the Superintendent of the Columbus public schools request that I stay execution of the judgment and the mandate of the Court of Appeals for the Sixth Circuit and execution of the judgment of the United States District Court for the Southern District of Ohio in this case pending consideration by this Court of their petition for certiorari. The Court of Appeals' judgment at issue affirmed findings of systemwide violations of the Equal Protection Clause of the Fourteenth Amendment on the part of the Columbus Board of Education, and upheld an extensive school desegregation plan for the Columbus school system. The remedy will require reassignment of 42,000 students; alteration of the grade organization of almost every elementary school in the Columbus system; the closing of 33 schools; reassignment of teachers, staff, and administrators; and the transportation of over 37,000 students. The 1978-1979 school year begins on September 7, and the applicants maintain that failure to stay immediately the judgment and mandate of the Court of Appeals will cause immeasurable and irreversible harm to the school system and the commu- nity. The respondents are individual plaintiffs and a plaintiff class consisting of all children attending Columbus public schools together with their parents and guardians.

This stay application comes to me after extensive and complicated litigation. On March 8, 1977, the District Court for the Southern District of Ohio issued an opinion declaring the Columbus school system unconstitutionally segregated and ordering the defendants to develop and submit proposals for a systemwide remedy. That decision predated this Court's opinions in three important school desegregation cases: Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Brennan v. Armstrong, 433 U.S. 672 (1977); and School District of Omaha v. United States, 433 U.S. 667, 97 S.Ct. 2905, 53 L.Ed.2d 1039 (1977). In the lead case, Dayton, this Court held that when fashioning a remedy for constitutional violations by a school board, the court "must determine how much incremental segregative effect these violations had on the racial distribution of the . . . school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy." 433 U.S., at 420, 97 S.Ct., at 2775. The defendants moved that the District Court reconsider its violation findings and adjust its remedial order in light of our Dayton opinion. Upon such reconsideration, the District Court concluded that Dayton simply restated the established precept that the remedy must not exceed the scope of the violation. Since it had found a systemwide violation, the District Court deemed a systemwide remedy appropriate without the specific findings mandated by Dayton on the impact discrete segregative acts had on the racial composition of individual schools within the system. The Sixth Circuit affirmed. Penick v. Columbus Board of Education, 583 F.2d 787 (1978).

Prior to its submission to me, this application for stay was denied by Mr. Justice STEWART. While I am naturally reluctant to take action in this matter different from that taken by him, this case has come to me in a special context. Four days before the application for stay was filed in this Court, the Sixth Circuit issued its opinion in the Dayton remand. Brinkman v. Gilligan, 583 F.2d 243 (1978) (Dayton IV ). Pursuant to this Court's opinion in Dayton, the District Court for the Southern District of Ohio had held a new evidentiary hearing on the scope of any constitutional violations by the Dayton school board and the appropriate remedy with regard to those violations. It had concluded that Dayton required a finding of segregative intent with respect to each violation and a remedy drawn to correct the incremental segregative impact of each violation. On that basis the District Court had found no constitutional violations and had dismissed the complaint. The Sixth Circuit reversed, characterizing as a "misunderstanding" the District Court's reading of our Dayton opinion. Dayton IV, supra, at 246. It reinstated the systemwide remedy that it had originally affirmed in Brinkman v. Gilligan, 539 F.2d 1084 (1976) (Dayton III), vacated and remanded sub nom. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977).

Dayton IV and the instant case clearly indicate to me that the Sixth Circuit has misinterpreted the mandate of this Court's Dayton opinion. During the Term of the Court, I would refer the application for a stay in a case as significant as this one to the full Court. But that is impossible here. The opinions of the District Court and the Court of Appeals total almost 200 pages of some complexity. It would be impracticable for me to even informally circularize my colleagues, with an opportunity for meaningful analysis, within the time necessary to act if the applicants are to be afforded any relief and the Columbus community's expectations adjusted for the coming school year.

I am of the opinion that the Sixth Circuit in this case evinced an unduly grudging application of Dayton. Simply the fact that three Justices of ...