Both of those represent cutbacks from the overwhelming sentiment behind the civil war amendments, which had handily passed.
TX had a black law school at this point, but SCOTUS finds that this is unequal in terms of both tangible and intangible factors. Sweatt was denied admission to the University of Texas school, but they order him admitted.
So this is by the new chief justice (Warren), and it's unanimous, and it explicitly overrules Plessy.
These were test cases: the districts had found that the schools were equal-- the defendant districts were picked to attack the separate part.
So early (reconstruction era) precedent struck down the most egregious discrimination (e.g., statutes that outlawed educating African-American children). But now the court says that separate schools on their face violate the equal protection clause.
The court postpones fashioning a remedy until the next term. That's Brown II. This was unanimous as well, but the delay suggests that the court was having trouble with the idea of the remedy. And indeed, the remedy is left to local school districts and federal courts. And it needs to be enforced "with all deliberate speed." What's that? As quickly as resonably possible was probably what they meant, but the phrase now means "without speed whatsoever."
Public unrest cannot be an excuse to delay enforcing constitutional rights.
Ostensibly this is a remedy case, but really it's a redefinition of the right announced in Brown. There, the thing that was unconstitutional was racial discrimination against students. Here, we're saying that being colorblind (e.g., a "free choice" plan) is not enough: the goal isn't the elimination of discrimination, it's actual integration.
Note that bussing used to be a tool for creating segregation, but here it's about ending it.
Here, it's OK to have a flexible mathematical ratio as a goal. This can be accomplished in a variety of ways: selecting the loctions for new schools, gerrymandering school districts, etc.
So this case is famous for the following:
This kind of lays the seeds of the Milliken case, though: they talk about white flight to the suburbs, for example.
The public schools are, in many senses, the center of the American melting pot. And the state has a strong interest in seeing the citizens grow up in such a way that they can get along with one another. Integration might help resolve other issues as well: social issues or economic issues. Or at least de-fuse them. Because after all, segregation is closely tied to some larger problems. So you get socio-economic integration as well as racial integration.
We don't want people to be trapped in racially segregated situations, but a lot of future leaders (i.e., people at top grad schools, etc.), will never have been in an integrated environment.
On the other hand...
Education is a local thing: federalism. Also, do federal masters whose goal is integration do any harm to the quality of education? They're not educators-- they're just there to achieve integration. Also, is integration so much more important than anything else: for example, are all-black schools so inferior that the government should integrate them? Same as in Brown: we're sending the message that an all-black school is bad. There's a difference between racial isolation and discrimination.
Many students perform better when they're not in a minority (this is one theory behind all-female schools, for example). We're basically making more people into minorities in the schools. And there are minority cultures as well, and we're destroying them by integrating the children into the mainstream of American culture-- this may have bad effects on the family.
And the power handed to the judge here will allow all manner of ideosyncratic agendae to creep in under the guise of integration. And can you really successfully force integration? You can bus people into the same school, but then at the end of the day, the busses take them back to their separate neighborhoods. And even in the school, these people come from very different backgrounds, and they might tend not to mix much-- there might even be increased antagonism.
But in many areas (especially in the north, where you have an inner city that's heavily minority and suburbs that are heavily white), a cross-district remedy is the only way around the problem.
Also, and this is from Swann (though it was edited out of our version), the scope of the remedy is determined by the nature and extent of the constitutional violation.
Substantively, this is a limit on Brown: the suburbs can't be forced to get involved in the inner city's issue.
In Jenkins II, there were four lawyers involved. Two were former Rhenquist clerks. There's a highly specialized bar that specializes in SCOTUS litigation. The other two lawyers were William Webster (now head of the FBI), and David Tatle (now on DC Ct. App.). So an interesting constellation of personae, but that's not surprising given what's at stake. Anyway, this was 1990, and here the argument was that what the district court judge had ordered was just too extreme-- there's got to be a constitutional violation in there someplace. Cert denied on the issue of whether the scope of the remedy exceeds the power of the circuit court judge. Cert granted on another issue: can the judge say how the money for the remedy will be raised (the judge had said 75% from the state, and 25% from the school district, but under MO constitutional law, a district can't just raise its taxes like that). So, can a federal court raise the tax rate above what is allowed in the MO constitution? The court had identified a bunch of means for doing this (income taxes, etc.). SCOTUS says wait a minute: a court can't dictate a tax system to a state-- this is a limit on their power. The court can impose a remedy, but can't dictate how it should be paid.
So SCOTUS was nervous about what was going on, but not to the extent of questioning the remedy. Now here we are in Jenkins III. The basic problem is that there's not money for the programs the court has ordered. So is there a right to a certain level of educational funding? SCOTUS: no, following Lindsey, or more specifically Rodriguez (which we don't have in the materials, holding that there's no constitutional right to any specific level of expenditure on education).
The strategy here is to make the KS City school district into the most perfect school district-- that will attract people from other areas to come in. All the schools were "magnet" schools: special schools with programs in particular subject areas (math, language, etc.) to attract students interested in that specialty.
SCOTUS says there are limits here. These remedies are within the scope of the original law-- the court has the theoretical constitutional power to do this. But everything is a matter of degree, and things are spiralling out of control here. They are backing away from the principle that integration is the only goal.
Thomas has two points in his concurrence. First off, this is a judge who has run amok-- it's supposed to be a democracy around here, but we've got a single guy extracting and committing huge bundles of money. Second, the fact that the schools are 68% black doesn't in itself justify calling them terrible.
Souter: we denied cert on the scope of the remedy in Jenkins II, so nobody argued this, and it wasn't briefed. Really, though, it's unlikely that he's worried about a procedural issue, even though that's what he says. He's concerned about the merits.
Ginsburg's dissent goes to the merits: the disagreement here has been on the value of integration. We've got a ton of firmly entrenched history with segregation, and it doesn't make sense to back off so quickly.
Con Law I arguments (role of courts, separation of powers) favor the majority. Also, factually, even after $1B spent, nothing really changed integration-wise.
Con Law II arguments favor the dissent. The court needs to protect minorities from majoritarian disregard in the legislature (where funds are allocated).
What was the holding in Brown? Separation is inherently unequal, maybe. If that's so, then we should perhaps go as far as we need to in order to fix these schools. Or maybe the holding is just that government mandated segregation is bad, and that's what must be cured.
At any rate, Separate but Equal might be returning de facto. And in the days of Plessy, there was separate, but resources were allocated such that there was no equality. Nowadays perhaps there's equal.
Black campuses aren't getting the kind of funding or prestige that the white campuses are in the University of MS.
But just equalizing the money isn't the solution: that's back to Plessy, and we've roundly condemned that. The court says the solution must be integration. And the university is doing some stuff that deepens the segregation, in spite of the fact that they have an affirmative duty to correct it. Admissions policies, for example. And differing educational programs, but similar core curricula (the schools are too similar, and the schools are not similar enough... somehow these are both said to entrench segregation).
Ultimately (long after the text of this case), there's another vindication of Separate but Equal: the remedy implemented is to even out some of the funding. And after all, maybe we want to keep historically black colleges: there are a lot of good reasons to do that (c.f. Thomas's concurrence).
The DC PD was disproportionately white, compared to DC itself, and there was a recruitment effort on to change that. And the effect of the exam was to disqualify the very people they were trying to recruit.
The court mentions a suit under Title 7 of the 1964 act (Griggs v. Duke Power). Why is the litigation here constitutional? Because Title 7, at that time, did not apply to federal employees. But (reverse incorporation), 14A does.
District court says that the disparate impact is no problem, there's no violation here.
Ct. App. says that disparate impact is enough to require the employer to prove that the use of the test is necessary. Reversed. SCOTUS says no-- there's been no proof of intentional discrimination, and the constitutional rule is different from the Title 7 rule. Defendant wins.
The school cases have always required intent in order to prove discrimination, the court says. Title 7 will shift the burden of proof on the basis of disparate impact alone, but that's merely a statute, and under the constitution, the plaintiff must show intent.