| Keyes v. School District No. 1, Denver, Colorado
(No. 71-507)
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| Syllabus
| Opinion
[ Brennan ] | Opinion
[ Douglas ] | CDInPart
[ Powell ] | Dissent
[ Rehnquist ] |
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Keyes v. School District No. 1, Denver, Colorado
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
MR. JUSTICE DOUGLAS.
While I join the opinion of the Court, I agree with my Brother POWELL that there is, for the purposes of the [p215] Equal Protection Clause of the Fourteenth Amendment as applied to the school cases, no difference between de facto and de jure segregation. The school board is a state agency and the lines that it draws, the locations it selects for school sites, the allocation it makes of students, the budgets it prepares are state action for Fourteenth Amendment purposes.
As Judge Wisdom cogently stated in United States v. Texas Education Agency, 467 F.2d 848, segregated schools are often created not by dual school systems decreed by the legislature, but by the administration of school districts by school boards. Each is state action within the meaning of the Fourteenth Amendment.
Here, school authorities assigned students, faculty, and professional staff; employed faculty and staff; chose sites for schools; constructed new schools and renovated old ones; and drew attendance zone lines. The natural and foreseeable consequence of these actions was segregation of Mexican-Americans. Affirmative action, to the contrary, would have resulted in desegregation. When school authorities, by their actions, contribute to segregation in education, whether by causing additional segregation or maintaining existing segregation, they deny to the students equal protection of the laws.
We need not define the quantity of state participation which is a prerequisite to a finding of constitutional violation. Like the legal concepts of "the reasonable man," "due care," "causation," "preponderance of the evidence," and "beyond a reasonable doubt," the necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis. Suffice it to say that school authorities here played a significant role in causing or perpetuating unequal educational opportunities for Mexican-Americans, and did so on a system-wide basis.
Id. at 863-864. [p216]
These latter acts are often said to create de facto, as contrasted with de jure, segregation. But, as Judge Wisdom observes, each is but another form of de jure segregation.
I think it is time to state that there is no constitutional difference between de jure and de facto segregation, for each is the product of state actions or policies. If a "neighborhood" or "geographical" unit has been created along racial lines by reason of the play of restrictive covenants that restrict certain areas to "the elite," leaving the "undesirables" to move elsewhere, there is state action in the constitutional sense because the force of law is placed behind those covenants.
There is state action in the constitutional sense when public funds are dispersed by urban development agencies to build racial ghettoes.
Where the school district is racially mixed and the races are segregated in separate schools, where black teachers are assigned almost exclusively to black schools, where the school board closed existing schools located in fringe areas and built new schools in black areas and in distant white areas, where the school board continued the "neighborhood" school policy at the elementary level, these actions constitute state action. They are of a kind quite distinct from the classical de jure type of school segregation. Yet calling them de facto is a misnomer, as they are only more subtle types of state action that create or maintain a wholly or partially segregated school system. See Kelly v. Guinn, 456 F.2d 100.
When a State forces, aids, or abets, or helps create a racial "neighborhood," it is a travesty of justice to treat that neighborhood as sacrosanct in the sense that it creation is free from the taint of state action.
The Constitution and Bill of Rights have described the design of a pluralistic society. The individual has the [p217] right to seek such companions as he desires. But a State is barred from creating by one device or another ghettoes that determine the school one is compelled to attend.