Freeman v. Pitts, 503 U.S. 467, 51 (1992)

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Cite as: 503 U. S. 467 (1992)

Blackmun, J., concurring in judgment

students in the district population were just 20% and 13%, respectively. Id., at 269-380.

Of the 13 new elementary schools DCSS opened between 1969 and 1975, 6 had a total of four black students in 1975. Id., at 272, 299, 311, 316, 337, 353. One of the two high schools DCSS opened had no black students at all.3 Id., at 367, 361. The only other measure taken by DCSS during the 1969-1975 period was to adopt the M-to-M transfer program in 1972. Due, however, to limitations imposed by school-district administrators—including a failure to provide transportation, "unnecessary red tape," and limits on available transfer schools—only one-tenth of 1% of the students were participating in the transfer program as of the 1975- 1976 school year. Id., at 75, 80.

In 1976, when the District Court reviewed DCSS' actions in the M-to-M program, it concluded that DCSS' limitations on the program "perpetuate the vestiges of a dual system." Id., at 83. Noting that the Department of Health, Education, and Welfare had found that DCSS had ignored its responsibility affirmatively to eradicate segregation and perpetuate desegregation, the District Court found that attendance zone changes had perpetuated the dual system in the county. Id., at 89, 91.

Thus, in 1976, before most of the demographic changes, the District Court found that DCSS had not complied with the 1969 order to eliminate the vestiges of its former de jure school system. Indeed, the 1976 order found that DCSS had contributed to the growing racial imbalance of its schools. Given these determinations in 1976, the District Court, at a minimum, should have required DCSS to prove that, but for the demographic changes between 1976 and 1985, its actions would have been sufficient to "convert promptly to a system without a 'white' school and a 'Negro' school, but just

3 By 1986, one of those two high schools was 2.4% black. The other was 91.7% black. Of the 13 elementary schools, 8 were either virtually all black or all white and all were racially identifiable. App. 269-359.

517

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