Gomperts v. Chase 8212 245

• Decision Date: 10 September 1971
• Docket Number: No. A,A
• Citation: 92 S.Ct. 16,30 L.Ed.2d 30,404 U.S. 1237
• Parties: Robert GOMPERTS et al. v. Charles E. CHASE et al. —245
• Court: U.S. Supreme Court

404 U.S. 1237

92 S.Ct. 16

30 L.Ed.2d 30

Robert GOMPERTS et al.

v Charles E. CHASE et al.

No. A—245.

Sept. 10, 1971.

Mr. Justice DOUGLAS.

I have reluctantly concluded to deny the motion for a preliminary injunction. Though the equities are on the side of the applicants, the application comes late, the school year opens Monday next, and the alternative to the present inadequate plan may be complete confusion. An opinion is being filed in Washington, D.C.

William O. Douglas

Yakima, Washington

This case—-before me on a motion for a preliminary injunction which both the District Court, 329 F.Supp. 1192, and the Court of Appeals for the Ninth Circuit have denied—-presents novel and unresolved issues of constitutional law, which have been argued at the hearing this day at Yakima, Washington. The Board of Trustees of Sequoia Union High School District in San Mateo County, California, designed and approved a high school integration plan dated June 24, 1970, to become effective September 13, 1971, when the school year opens. It was designed to effect the substantial integration of Blacks, Chicanos and Whites. The county was divided in opinion on the matter, and as the result of an election in the spring of 1971, new school trustes were chosen who helped make up a new majority which modified the Board's earlier action. That is the plan of the Board dated July 7, 1971. It is argued that the modifications will substantially restore the prior existing segregated high school regime. It is said in reply that the modified plan is based on voluntary transfers which it is hoped will mean that some 600 Whites will move into Black schools and some 400 Blacks will move into White schools. The mandatory aspect of the June 24, 1970, plan was suspended for the school year 1971—1972. This action was brought by Blacks and Whites under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 to end the racially segregated school regime. The case has not been heard on the merits and, as I have indicated, the new school year starts in less than a week.

If this were the classical de jure school segregation, the injunction plainly should be granted. But the precise contours of de jure segregation have not been drawn by the Court. Historically, it meant the existence of state-created dual school systems. That is to say, de jure segregation was a mandate by the legislature, carried into effect by a school board, whereby students were assigned to schools solely by race. E.g., Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172; Cumming v. Richmond County Board of Education, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262. As I indicated the other day in my opinion in Lee v. Johnson, 404 U.S. 1215, 92 S.Ct. 14, 30 L.Ed.2d 19, California had such a dual system until recent years. In the Guey Heung Lee case it was apparent that the force of that custom had not been spent even though the satute providing for the establishment of separate schools had been repealed, because the San Francisco School Board continued meticulously to draw racial lines in spite of the repeal of the statute.

So far as I can tell, a different history has prevailed in San Mateo County, or at least it is not apparent from this record that California's earlier dual school system shaped the existing San Mateo school system. The main argument now is that other state action created de jure segregation in San Mateo County:

(1) California's Bayshore Freeway effectively isolated the Blacks and resulted in a separate and predominantly Black high school.

(2) State planning groups fashioned and built the Black community around that school.

(3) Realtors—-licensed by the State—kept 'White property' White and 'Black property' Black.

(4) Banks chartered by the State shaped the policies that handicapped Blacks in financing homes other than in Black ghettoes.

(5) Residential segregation, fostered by state enforced restrictive covenants, resulted in segregated schools.

Whether any of these factors add up to de jure segregation in the sense of that state action we condemned in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, is a question not yet decided.

If I assume, arguendo, that they do not establish de jure segregation, another troublesome question remains. There can be de facto segregation without the State's being implicated in the actual creation of the dual system....