author: Me. Chief Justice Burger

text:
    SWANN et al. v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al.
    No. 281.
    Argued October 12, 1970
    Decided April 20, 1971

      Burger, C. J., delivered the opinion for a unanimous Court.

      Julius LeVonne Chambers and James M. Nabrit III argued the cause for petitioners in No. 281 and respondents in No. 349. With them on the briefs were Jack Greenberg, Norman J. Chachkin, C. O. Pearson, and Anthony G. Amsterdam.

      William J. Wagonner and Benjamin S. Horack argued the cause and filed briefs for respondents in No. 281 and petitioners in No. 349.

      Solicitor General Griswold argued the cause for the United States as amicus curiae in both cases. With him on the brief was Assistant Attorney General Leonard.

    Briefs of amici curiae in No. 281 were filed by Earl Faircloth, Attorney General, Robert J. Kelly, Deputy Attorney General, Ronald W. Sabo, Assistant Attorney General, and Rivers Buford for the State of Florida; by Andrew P. Miller, Attorney General, William G. Broad-dus and Theodore J. Markow, Assistant Attorneys General, Lewis F. Poioell, Jr., John W. Riely, and Guy K. Tower for the Commonwealth of Virginia; by Claude R. Kirk, Jr., pro se, and Gerald Mager for Claude R. Kirk, Jr., Governor of Florida; by W. F. Womble for the Winston-Salem/Forsyth County Board of Education; by Raymond B. Witt, Jr., and Eugene N. Collins for the Chattanooga Board of Education; by Kenneth W. Cleary for the School Board of Manatee County, Florida; by W. Crosby New and John M. Allison for the School Board of Hillsborough County, Florida; by Sam J. Ervin,

      Jr., Charles R. Jonas, and Ernest F. Hoilings for the Classroom Teachers Association of the Charlotte-Mecklenburg School System, Inc.; by Mark Wells White, Jr., for Mrs. H. W. Cullen et al., members of the Board of Education of the Houston Independent School District; by Jack Petree for the Board of Education of Memphis City Schools; by Sherwood W. Wise for the Jackson Chamber of Commerce, Inc., et al.; by Stephen J. Poliak, Benjamin W. Boley, and David Rubin for the National Education Association; by William L. Taylor, Richard B. Sobol, and Joseph L. Rauh, Jr., for the United Negro College Fund, Inc., et al.; by Owen H. Page for Concerned Citizens Association, Inc.; by Charles S. Conley, Floyd B. McKissick, and Charles S. Scott for the Congress of Racial Equality; by the Tennessee Federation for Constitutional Government et al.; by William C. Cramer, pro se, and Richard B. Peet, joined by Albert W. Watson et al., for William C. Cramer; by Charles E. Bennett, pro se, James C. Rinaman, Jr., and Yardley D. Buckman for Charles E. Bennett; by Calvin H. Childress and M. T. Bohannon, Jr., for David E. Allgood et al.; by William B. Spong, Jr., and by Newton Collier Estes.

      Togetlier with No. 349, Charlotte-Mecklenburg Board of Education et al. v. Swann et al., also on certiorari to the same court.

   Me. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari in this case to review important issues as to the duties of school authorities and the scope of powers of federal courts under this Court's mandates to eliminate racially separate public schools established and maintained by state action. Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I).

This case and those argued with it arose in States having a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race. That was what Brown v. Board of Education was all about. These cases present us with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once. Meanwhile district courts and courts of appeals have struggled in hundreds of cases with a multitude and variety of problems under this Court’s general directive. Understandably, in an area of evolving remedies, those courts had to improvise and experiment without detailed or specific guidelines. This Court, in Brown I, appropriately dealt with the large constitutional principles; other federal courts had to grapple with the flinty, intractable realities of day-to-day implementation of those constitutional commands. Their efforts, of necessity, embraced a process of “trial and error,” and our effort to formulate guidelines must take into account their experience.

I

The Charlotte-Mecklenburg school system, the 43d largest in the Nation, encompasses the city of Charlotte and surrounding Mecklenburg County, North Carolina. The area is large — 550 square miles — spanning roughly 22 miles east-west and 36 miles north-south. During the 1968-1969 school year the system served more than 84,000 pupils in 107 schools. Approximately 71% of the pupils were found to be white and 29% Negro. As of June 1969 there were approximately 24,000 Negro students in the system, of whom 21,000 attended schools within the city of Charlotte. Two-thirds of those 21,000 — approximately 14,000 Negro students — attended 21 schools which were either totally Negro or more than 99% Negro.

This situation came about under a desegregation plan approved by the District Court at the commencement of the present litigation, in 1965, 243 F. Supp. 667 (WDNC), aff’d, 369 F. 2d 29 (CA4 1966), based upon geographic zoning with a free-transfer provision. The present proceedings were initiated in September 1968 by petitioner Swann’s motion for further relief based on Green v. County School Board, 391 U. S. 430 (1968), and its companion cases. All parties now agree that in 1969 the system fell short of achieving the unitary school system that those cases require.

The District Court held numerous hearings and received voluminous evidence. In addition to finding certain actions of the school board to be discriminatory, the court also found that residential patterns in the city and county resulted in part from federal, state, and local government action other than school board decisions. School board action based on these patterns, for example, by locating schools in Negro residential areas and fixing the size of the schools to accommodate the needs of immediate neighborhoods, resulted in segregated education. These findings were subsequently accepted by the Court of Appeals.

In April 1969 the District Court ordered the school board to come forward with a plan for both faculty and student desegregation. Proposed plans were accepted by the court in June and August 1969 on an interim basis only, and the board was ordered to file a third plan by November 1969. In November the board moved for an extension of time until February 1970, but when that was denied the board submitted a partially completed plan. In December 1969 the District Court held that the board’s submission was unacceptable and appointed an expert in education administration, Dr. John Finger, to prepare a desegregation plan. Thereafter in February 1970, the District Court was presented with two alternative pupil assignment plans — the finalized “board plan” and the “Finger plan.”

The Board Plan. As finally submitted, the school board plan closed seven schools and reassigned their pupils. It restructured school attendance zones to achieve greater racial balance but maintained existing grade structures and rejected techniques such as pairing and clustering as part of a desegregation effort. The plan created a single athletic league, eliminated the previously racial basis of the school bus system, provided racially mixed faculties and administrative staffs, and modified its free-transfer plan into an optional majority-to-minority transfer system.

The board plan proposed substantial assignment of Negroes to nine of the system’s 10 high schools, producing 17% to 36% Negro population in each. The projected Negro attendance at the 10th school, Independence, was 2%. The proposed attendance zones for the high schools were typically shaped like wedges of a pie, extending outward from the center of the city to the suburban and rural areas of the county in order to afford residents of the center city area access to outlying schools.

As for junior high schools, the board plan rezoned the 21 school areas so that in 20 the Negro attendance would range from 0% to 38%. The other school, located in the heart of the Negro residential area, was left with an enrollment of 90% Negro.

The board plan with respect to elementary schools relied entirely upon gerrymandering of geographic zones. More than half of the Negro elementary pupils were left in nine schools that were 86% to 100% Negro; approximately half of the white elementary pupils were assigned to schools 86% to 100% white.

The Finger Plan. The plan submitted by the court-appointed expert, Dr. Finger, adopted the school board zoning plan for senior high schools with one modification: it required that an additional 300 Negro students be transported from the Negro residential area of the city to the nearly all-white Independence High School.

The Finger plan for the junior high schools employed much of the rezoning plan of the board, combined with the creation of nine “satellite” zones. Under the satellite plan, inner-city Negro students were assigned by attendance zones to nine outlying predominately white junior high schools, thereby substantially desegregating every junior high school in the system.

The Finger plan departed from the board plan chiefly in its handling of the system’s 76 elementary schools. Rather than relying solely upon geographic zoning, Dr. Finger proposed use of zoning, pairing, and grouping techniques, with the result that student bodies throughout the system would range from 9% to 38% Negro.

The District Court described the plan thus:

“Like the board plan, the Finger plan does as much by rezoning school attendance lines as can reasonably be accomplished. However, unlike the board plan, it does not stop there. It goes further and desegregates all the rest of the elementary schools by the technique of grouping two or three outlying schools with one black inner city school; by transporting black students from grades one through four to the outlying white schools; and by transporting white students from the fifth and sixth grades from the outlying white schools to the inner city black school.”

Under the Finger plan, nine inner-city Negro schools were grouped in this manner with 24 suburban white schools.

On February 5, 1970, the District Court adopted, the board plan, as modified by Dr. Finger, for the junior and senior high schools. The court rejected the board elementary school plan and adopted the Finger plan as presented. Implementation was partially stayed by the Court of Appeals for the Fourth Circuit on March 5, and this Court declined to disturb the Fourth Circuit’s order, 397 U. S. 978 (1970).

On appeal the Court of Appeals affirmed the District Court’s order as to faculty desegregation and the secondary school plans, but vacated the order respecting 'elementary schools. While agreeing that the District Court properly disapproved the board plan concerning these schools, the Court of Appeals feared that the pairing and grouping of elementary schools would place an unreasonable burden on the board and the system’s pupils. The case was remanded to the District Court for reconsideration and submission of further plans. 431 F. 2d 138. This Court granted certiorari, 399 U. S. 926, and directed reinstatement of the District Court’s order pending further proceedings in that court.

On remand the District Court received two new plans for the elementary schools: a plan prepared by the United States Department of Health, Education, and Welfare (the HEW plan) based on contiguous grouping and zoning of schools, and a plan prepared by four members of the nine-member school board (the minority plan) achieving substantially the same results as the Finger plan but apparently with slightly less transportation. A majority of the school board declined to amend its proposal. After a lengthy evidentiary hearing the District Court concluded that its own plan (the Finger plan), the minority plan, and an earlier draft of the Finger plan were all reasonable and acceptable. It directed the board to adopt one of the three or in the alternative to come forward with a new, equally effective plan of its own; the court ordered that the Finger plan would remain in effect in the event the school board declined to adopt a new plan. On August 7, the board indicated it would “acquiesce” in the Finger plan, reiterating its view that the plan was unreasonable. The District Court, by order dated August 7, 1970, directed that the Finger plan remain in effect.

II

Nearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings. None of the parties before us challenges the Court’s decision of May 17, 1954, that

“in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated . . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . . .
“Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity.” Brown v. Board of Education, supra, at 495.

None of the parties before us questions the Court’s 1955 holding in Brown II, that

“School authorities have the primary responsibility for elucidating, assessing, and solving these problems ; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.
“In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown v. Board of Education, 349 U. S. 294, 299-300 (1955).

Over the 16 years since Brown II, many difficulties were encountered in implementation of the basic constitutional requirement that the State not discriminate between public school children on the basis of their race. Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then. Deliberate resistance of some to the Court’s mandates has impeded the good-faith efforts of others to bring school systems into compliance. The detail and nature of these dilatory tactics have been noted frequently by this Court and other courts.

By the time the Court considered Green v. County School Board, 391 U. S. 430, in 1968, very little progress had been made in many areas where dual school systems had historically been maintained by operation of state laws. In Green, the Court was confronted with a record of a freedom-of-choice program that the District Court had found to operate in fact to preserve a dual system more than a decade after Brown II. While acknowledging that a freedom-of-choice concept could be a valid remedial measure in some circumstances, its failure to be effective in Green required that:

“The burden on a school board today is to come forward with a plan that promises realistically to work . . . now . . . until it is clear that state-imposed segregation has been completely removed.” Green, supra, at 439.

This was plain language, yet the 1969 Term of Court brought fresh evidence of the dilatory tactics of many school authorities. Alexander v. Holmes County Board of Education, 396 U. S. 19, restated the basic obligation asserted in Griffin v. School Board, 377 U. S. 218, 234 (1964), and Green, supra, that the remedy must be implemented forthwith.

The problems encountered by the district courts and courts of appeals make plain that we should now try to amplify guidelines, however incomplete and imperfect, for the assistance of school authorities and courts. The failure of local authorities to meet their constitutional obligations aggravated the massive problem of converting from the state-enforced discrimination of racially separate school systems. This process has been rendered more difficult by changes since 1954 in the structure and patterns of communities, the growth of student population, movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented. Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns.

III

The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown II. That was the basis for the holding in Green that school authorities are “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” 391 U. S., at 437--438.

If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.

“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944), cited in Brown II, supra, at 300.

This allocation of responsibility once made, the Court attempted from time to time to provide some guidelines for the exercise of the district judge’s discretion and for the reviewing function of the courts of appeals. However, a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.

In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.

The school authorities argue that the equity powers of federal district courts have been limited by Title IV of the Civil Rights Act of 1964, 42 U. S. C. § 2000c. The language and the history of Title IV show that it was enacted not to limit but to define the role of the Federal Government in the implementation of the Brown I decision. It authorizes the Commissioner of Education to provide technical assistance to local boards in the preparation of desegregation plans, to arrange “training institutes” for school personnel involved in desegregation efforts, and to make grants directly to schools to ease the transition to unitary systems. It also authorizes the Attorney General, in specified circumstances, to initiate federal desegregation suits. Section 2000c (b) defines “desegregation” as it is used in Title IV:

“ ‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.”

Section 2000c-6, authorizing the Attorney General to institute federal suits, contains the following proviso:

“nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards.”

On their face, the sections quoted purport only to insure that the provisions of Title IV of the Civil Rights Act of 1964 will not be read as granting new powers. The proviso in § 2000c-6 is in terms designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers. The legislative history of Title IV indicates that Congress was concerned that the Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called “de facto segregation,” where racial imbalance exists in the schools but with no showing that this was brought about by discriminatory action of state authorities. In short, there is nothing in the Act that provides us material assistance in answering the question of remedy for state-imposed segregation in violation of Brown I. The basis of our decision must be the prohibition of the Fourteenth Amendment that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”

IY

We turn now to the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause. Although the several related cases before us are primarily concerned with problems of student assignment, it may be helpful to begin with a brief discussion of other aspects of the process.

In Green, we pointed out that existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system. 391 U. S., at 435. Independent of student assignment, where it is possible to identify a “white school” or a “Negro school” simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima jade case of violation of substantive constitutional rights under the Equal Protection Clause is shown.

When a system has been dual in these respects, the first remedial responsibility of school authorities is to eliminate invidious racial distinctions. With respect to such matters as transportation, supporting personnel, and extracurricular activities, no more than this may be necessary. Similar corrective action must be taken with regard to the maintenance of buildings and the distribution of equipment. In these areas, normal administrative practice should produce schools of like quality, facilities, and staffs. Something more must be said, however, as to faculty assignment and new school construction.

In the companion Davis case, post, p. 33, the Mobile school board has argued that the Constitution requires that teachers be assigned on a “color blind” basis. It also argues that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. We reject that contention.

In United States v. Montgomery County Board of Education, 395 U. S. 225 (1969), the District Court set as a goal a plan of faculty assignment in each school with a ratio of white to Negro faculty members substantially the same throughout the system. This order was predicated on the District Court finding that:

“The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year 1968-69.” Quoted at 395 U. S., at 232.

The District Court in Montgomery then proceeded to set an initial ratio for the whole system of at least two Negro teachers out of each 12 in any given school. The Court of Appeals modified the order by eliminating what it regarded as “fixed mathematical” ratios of faculty and substituted an initial requirement of “substantially or approximately” a five-to-one ratio. With respect to the future, the Court of Appeals held that the numerical ratio should be eliminated and that compliance should not be tested solely by the achievement of specified proportions. Id., at 234.

We reversed the Court of Appeals and restored the District Court’s order in its entirety, holding that the order of the District Judge

“was adopted in the spirit of this Court’s opinion in Green ... in that his plan 'promises realistically to work, and promises realistically to work now.’ The modifications ordered by the panel of the Court of Appeals, while of course not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, unitary, nondiscriminatory school system becomes a reality instead of a hope. ... We also believe that under all the circumstances of this case we follow the original plan outlined in Brown II ... by accepting the more specific and expeditious order of [District] Judge Johnson . . . .” 395 U. S., at 235-236 (emphasis in original).

The principles of Montgomery have been properly followed by the District Court and the Court of Appeals in this case.

The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.

In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of “neighborhood zoning.” Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with “neighborhood zoning,” further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy.

In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system. When necessary, district courts should retain jurisdiction to assure that these responsibilities are carried out. Cf. United States v. Board of Public Instruction, 395 F. 2d 66 (CA5 1968); Brewer v. School Board, 397 F. 2d 37 (CA4 1968).

V

The central issue in this case is that of student assignment, and there are essentially four problem areas:

(1) to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system;

(2) whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation;

(3) what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and

(4) what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation.

(1) Racial Balances or Racial Quotas.

The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems.

We are concerned in these cases with the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination. We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree. This case does not present that question and we therefore do not decide it.

Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.

In this case it is urged that the District Court has imposed a racial balance requirement of 71%-29% on individual schools. The fact that no such objective was actually achieved — and would appear to be impossible— tends to blunt that claim, yet in the opinion and order of the District Court of December 1, 1969, we find that court directing

“that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others . . . , [t]hat no school [should] be operated with an all-black or predominantly black student body, [and] [t]hat pupils of all grades [should] be assigned in such a way that as nearly as practicable the various schools at various grade levels have about the same proportion of black and white students.”

The District Judge went on to acknowledge that variation “from that norm may be unavoidable.” This contains intimations that the “norm” is a fixed mathematical racial balance reflecting the pupil constituency of the system. If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.

As the voluminous record in this case shows, the predicate for the District Court’s use of the 71%-29% ratio was twofold: first, its express finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969; second, its finding, also approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans. As the statement of facts shows, these findings are abundantly supported by the record. It was because of this total failure of the school board that the District Court was obliged to turn to other qualified sources, and Dr. Dinger was designated to assist the District Court to do what the board should have done.

We see therefore that the use made of mathematical'7 ratios was no more than a starting point in the process ( of shaping a remedy, rather than an inflexible require- I ment. From that starting point the District Court pro- ' ceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances. As we said in Oreen, a school authority’s remedial plan or a district court’s remedial decree is to be judged by its effectiveness. Awareness of the racial^ composition of the whole school system is likely to be a • useful starting point in shaping a remedy to correct past ; constitutional violations. In sum, the very limited use ¡ made of mathematical ratios was within the equitable j remedial discretion of the District Court.

(2) One-race Schools.

The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominately of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.

In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority’s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.

An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move. Cf. Ellis v. Board of Public Instruction, 423 F. 2d 203, 206 (CA5 1970). The court orders in this and the companion Davis case now provide such an option.

(3) Remedial Altering of Attendance Zones.

The maps submitted in these cases graphically demonstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank — and sometimes drastic — gerrymandering of school districts and attendance zones. An additional step was pairing, “clustering,” or “grouping” of schools with attendance assignments made deliberately to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are neither compact nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court.

Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.

No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. “Racially neutral” assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a “loaded game board,” affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.

In this area, we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals.

We hold that the pairing and grouping of noncontiguous school zones is a permissible tool and such action is to be considered in light of the objectives sought. Judicial steps in shaping such zones going beyond combinations of contiguous areas should be examined in light of what is said in subdivisions (1), (2), and (3) of this opinion concerning the objectives to be sought. Maps do not tell the whole story since noncontiguous school zones may be more accessible to each other in terms of the critical travel time, because of traffic patterns and good highways, than schools geographically closer together. Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations.

(4) Transportation of Students.

The scope of permissible transportation of students as an implement of a remedial decree has never been defined by this Court and by the very nature of the problem it cannot be defined with precision. No rigid guidelines as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation’s public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country.

The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case, Davis, supra. The Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer privileges. The District Court’s conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record.

Thus the remedial techniques used in the District Court’s order were within that court’s power to provide equitable relief; implementation of the decree is well within the capacity of the school authority.

The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and transported to the schools they were to attend. The trips for elementary school pupils average about seven miles and the District Court found that they would take “not over 35 minutes at the most.” This system compares favorably with the transportation plan previously operated in Charlotte under which each day 23,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school.

An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed.

VI

The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term “reasonableness.” In Green, supra, this Court used the term “feasible” and by implication, “workable,” “effective,” and “realistic” in the mandate to develop “a plan that promises realistically to work, and ... to work now.” On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity.

At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. The systems would then be “unitary” in the sense required by our decisions in Green and Alexander.

It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.

For the reasons herein set forth, the judgment of the Court of Appeals is affirmed as to those parts in which it affirmed the judgment of the District Court. The order of the District Court, dated August 7, 1970, is also affirmed.

It is so ordered.

         McDaniel v. Barresi, No. 420, post, p. 39; Davis v. Board of School Commissioners of Mobile County, No. 436, post, p. 33; Moore v. Charlotte-Mecklenburg Board of Education, No. 444, post,
        p. 47; North Carolina State Board of Education v. Swann, No. 498, post, p. 43. For purposes of this opinion the cross-petitions in Nos. 281 and 349 are treated as a single case and will be referred to as “this case.”

        Raney v. Board of Education, 391 U. S. 443 (1968), and Monroe v. Board of Commissioners, 391 U. S. 460 (1968).

       A “satellite zone” is an area which is not contiguous with the main attendance zone surrounding the school.

       In its opinion and order of December 1, 1969, later incorporated in the order appointing Dr. Finger as consultant, the District Court stated:
      “Fixed ratios of pupils in particular schools will not be set. If the board in one of its three tries had presented a plan for desegregation, the court would have sought ways to approve variations in pupil ratios. In default of any such plan from the school board, the court will start with the thought . . . that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others, but to understand that variations from that norm may be unavoidable.” 306 F. Supp. 1299, 1312.

       The necessity for this is suggested by the situation in the Fifth Circuit where 166 appeals in school desegregation cases were heard between December 2, 1969, and September 24, 1970.

       Elementary public school population (grades 1-6) grew from 17,447,000 in 1954 to 23,103,000 in 1969; secondary school population (beyond grade 6) grew from 11,183,000 in 1954 to 20,775,000 in 1969. Digest of Educational Statistics, Table 3, Office of Education Pub. 10024r-64; Digest of Educational Statistics, Table 28, Office of Education Pub. 10024-70.

       It must be remembered that the District Court entered nearly a score of orders and numerous sets of findings, and for the most part each was accompanied by a memorandum opinion. Considering the pressure under which the court was obliged to operate we would not expect that all inconsistencies and apparent inconsistencies could be avoided. Our review, of course, is on the orders of February 5, 1970, as amended, and August 7, 1970.

       The final board plan left 10 schools 86% to 100% Negro and yet categorically rejected the techniques of pairing and clustering as part of the desegregation effort. As discussed below, the Charlotte board was under an obligation to exercise every reasonable effort to remedy the violation, once it was identified, and the suggested techniques are permissible remedial devices. Additionally, as noted by the District Court and Court of Appeals, the board plan did not assign white students to any school unless the student population of that school was at least 60% white. This was an arbitrary limitation negating reasonable remedial steps.

       In its August 3, 1970, memorandum holding that the District Court plan was “reasonable” under the standard laid down by the Fourth Circuit on appeal, the District Court explained the approach taken as follows:
      “This court has not ruled, and does not rule that 'racial balance’ is required under the Constitution; nor that all black schools in all cities are unlawful; nor that all school boards must bus children or violate the Constitution; nor that the particular order entered in this case would be correct in other circumstances not before this court.” (Emphasis in original.)

       The reliance of school authorities on the reference to the “revision of . . . attendance areas into compact units,” Brown II, at 300 (emphasis supplied), is misplaced. The enumeration in that opinion of considerations to be taken into account by district courts was patently intended to be suggestive rather than exhaustive. The decision in Brown II to remand the cases decided in Brown I to local courts for the framing of specific decrees was premised on a recognition that this Court could not at that time foresee the particular means which would be required to implement the constitutional principles announced. We said in Green, supra, at 439:
      “The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every ease. The matter must be assessed in light of the circumstances present and the options available in each instance.”

       During 1967-1968, for example, the Mobile board used 207 buses to transport 22,094 students daily for an average round trip of 31 miles. During 1966-1967, 7,116 students in the metropolitan area were bused daily. In Charlotte-Mecklenburg, the system as a whole, without regard to desegregation plans, planned to bus approximately 23,000 students this year, for an average daily round trip of 15 miles. More elementary school children than high school children were to be bused, and four- and five-year-olds travel the longest routes in the system.

       The District Court found that the school system would have to employ 138 more buses than it had previously operated. But 105 of those buses were already available and the others could easily be obtained. Additionally, it should be noted that North Carolina requires provision of transportation for all students who are assigned to schools more than one and one-half miles from their homes. N. C. Gen. Stat. § 115-186 (b) (1966).


source: Caselaw Access Project

author: Mr. Chief Justice Burger

license: Public Domain

text:
    DAVIS et al. v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al.
    No. 436.
    Argued October 13-14, 1970
    Decided April 20, 1971
    Burger, C. J., delivered the opinion for a unanimous Court.

      Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Michael

      Davidson, Norman J. Chachkin, and Anthony G. Amsterdam.

      Abram L. Philips, Jr., argued the cause for respondents Board of School Commissioners of Mobile County et al. With him on the brief were George F. Wood, John J. Sparkman, James B. Allen, and Jack Edwards. Samuel L. Stockman argued the cause for respondents Mobile County Council Parent-Teacher Associations et al. With him on the brief were W. A. Kimbrough, Jr., and John W. Adams, Jr.

      Solicitor General Griswold argued the cause for the United States as amicus curiae. With him on the brief was Assistant Attorney General Leonard.

    Briefs of amici curiae were filed by Albert P. Brewer, Governor, MacDonald Gallion, Attorney General, and Joseph D. Phelps, Special Assistant Attorney General, for the State of Alabama; by A. F. Summer, Attorney General, and Semmes Luckett, Special Assistant Attorney General, for the State of Mississippi; by Robert V. Light and Herschel H. Friday for the Little Rock School District et al., and by William L. Taylor, Richard B. Sobol, and Joseph L. Rauh, Jr., for the United Negro College Fund, Inc., et al.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

Petitioners in this case challenge as inadequate a school desegregation plan for Mobile County, Alabama. The county is large and populous, embracing 1,248 square miles and the city of Mobile. The school system had 73,500 pupils in 91 schools at the beginning of the 1969 academic year; approximately 58% of the pupils were white and 42% Negro. During the 1967-1968 school year, the system transported 22,000 pupils daily in over 200 school buses, both in the rural areas of the county and in the outlying areas of metropolitan Mobile.

The present desegregation plan evolved from one developed by the District Court in response to the decision of the Court of Appeals for the Fifth Circuit in Davis v. Board of School Comm’rs, 414 F. 2d 609 (CA5 1969), that an earlier desegregation plan formulated by the District Court on the basis of unified geographic zones was “constitutionally insufficient and unacceptable, and such zones must be redrawn.” The Court of Appeals held that that earlier plan had “ignored the unequivocal directive to make a conscious effort in locating attendance zones to desegregate and eliminate past segregation.” Id., at 610.

The District Court responded with a new zoning plan which left 18,623, or 60%, of the system's 30,800 Negro children in 19 all-Negro or nearly all-Negro schools. On appeal, the Court of Appeals reviewed all aspects of desegregation in Mobile County. Additional information was requested regarding earlier desegregation plans for the rural parts of the county, and those plans were approved. They are not before us now. The Court of Appeals concluded that with respect to faculty and staff desegregation the board had “almost totally failed to comply” with earlier orders, and directed the District Court to require the board to establish a faculty and staff ratio in each school “substantially the same” as that for the entire district. 430 F. 2d 883, 886. We affirm that part of the Court of Appeals’ opinion for the reasons given in Swann v. Charlotte-Mecklenburg Board of Education, ante, p. 1, at 19-20.

Regarding junior and senior high schools, the Court of Appeals reversed the District Court and directed implementation of a plan that was intended to eliminate the seven all-Negro schools remaining under the District Court’s scheme. This was to be achieved through pairing and adjusting grade structures within metropolitan Mobile, without bus transportation or split zoning. The Court of Appeals then turned to the difficult problem •of desegregating the elementary schools of metropolitan Mobile. The metropolitan area is divided by a major north-south highway. About 94% of the Negro students in the metropolitan area live on the east side of the highway between it and the Mobile River. The schools on that side of the highway are 65% Negro and 35% white. On the west side of the highway, however, the schools are 12% Negro and 88% white. Under the District Court’s elementary school plan for the metropolitan area, the eastern and western sections were treated as distinct, without either interlocking zones or transportation across the highway. Not surprisingly, it was easy to desegregate the western section, but in the east the District Court left 12 all-Negro or nearly all-Negro elementary schools, serving over 90% of all the Negro elementary students in the metropolitan area.

The Court of Appeals rejected this solution in favor of a modified version of a plan submitted by the Department of Justice. As further modified after a second appeal, this plan reduced the number of all-Negro or nearly all-Negro elementary schools from 12 to six schools, projected to serve 5,310 students, or about 50% of the Negro elementary students in the metropolitan area. Like the District Court’s plan, the Court of Appeals’ plan was based on treating the western section in isolation from the eastern. There were unified geographic zones, and no transportation of students for purposes of desegregation. The reduction in the number of all-Negro schools was achieved through pairing, rezoning, and adjusting grade structures within the eastern section. With yet further modifications not material here, this plan went into effect at the beginning of the 1970-1971 school year.

The enrollment figures for the 1970-1971 school year show that the projections on which the Court of Appeals based its plan for metropolitan Mobile were inaccurate. Under the Court of Appeals’ plan as actually implemented, nine elementary schools in the eastern section of metropolitan Mobile were over 90% Negro as of September 21, 1970 (instead of six as projected), and they housed 7,651 students, or 64% of all the Negro elementary school pupils in the metropolitan area. Moreover, the enrollment figures indicate that 6,746 Negro junior and senior high school students in metropolitan Mobile, or over half, were then attending all-Negro or nearly all-Negro schools, rather than none as projected by the Court of Appeals. These figures are derived from a report of the school board to the District Court; they were brought to our attention in a supplemental brief for petitioners filed on October 10, 1970, and have not been challenged by respondents.

As we have held, “neighborhood school zoning,” whether based strictly on home-to-school distance or on “unified geographic zones,” is not the only constitutionally permissible remedy; nor is it per se adequate to meet the remedial responsibilities of local boards. Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. See Swann, supra, at 22-31. The measure of any desegregation plan is its effectiveness.

On the record before us, it is clear that the Court of Appeals felt constrained to treat the eastern part of metropolitan Mobile in isolation from the rest of the school system, and that inadequate consideration was given to the possible use of bus transportation and split zoning. For these reasons, we reverse the judgment of the Court of Appeals as to the parts dealing with student assignment, and remand the case for the development of a decree “that promises realistically to work, and promises realistically to work now.” Green v. County School Board, 391 U. S. 430, 439 (1968).

It is so ordered.


text:
    McDANIEL, SUPERINTENDENT OF SCHOOLS, et al. v. BARRESI et al.
    No. 420.
    Argued October 13, 1970
    Decided April 20, 1971
    Burger, C. J., delivered the opinion for a unanimous Court.

      Eugene A. Epting argued the cause and filed a brief for petitioners.

      E. Freeman Leverett argued the cause and filed a brief for respondents.
    Briefs of amici curiae were filed by Solicitor General Griswold and Assistant Attorney General Leonard for the United States, and by Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and Alfred L. Evans, Jr., and J. Lee Perry, Assistant Attorneys General, for the State of Georgia.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari in this case to review a state court order enjoining the operation of a school desegregation plan. The action was brought in the Superior Court of Clarke County, Georgia, by parents of children attending public elementary schools in that county. Named as defendants were the Superintendent of Education and members of the Clarke County Board of Education. The trial court denied respondents’ request for an injunction, but on appeal the Supreme Court of Georgia reversed, 226 Ga. 456, 175 S. E. 2d 649 (1970). This Court then granted certiorari, 400 U. S. 804 (1970).

Beginning in 1963, the Clarke County Board of Education began a voluntary program to desegregate its public schools. The student-assignment plan presently at issue, involving only elementary schools, has been in effect since the start of the 1969 academic year. The plan, adopted by the Board of Education and approved by the Department of Health, Education, and Welfare, relies primarily upon geographic attendance zones drawn to achieve greater racial balance. Additionally, the pupils in five heavily Negro “pockets” either walk or are transported by bus to schools located in other attendance zones. As a consequence the Negro enrollment of each elementary school in the system varies generally between 20% and 40%, although two schools have a 50% Negro enrollment. The white-Negro ratio of elementary pupils in the system is approximately two to one.

Respondents contend in this action that the board’s desegregation plan violates the Fourteenth Amendment of the Federal Constitution and Title IY of the Civil Rights Act of 1964. The Supreme Court of Georgia upheld both contentions, concluding first that the plan violated the Equal Protection Clause “by treating students differently because of their race.” The court concluded also that Title IV prohibited the board from “requiring the transportation of pupils or students from one school to another ... in order to achieve such racial balance . . . .” We reject these contentions.

The Clarke County Board of Education, as part of its affirmative duty to disestablish the dual school system, properly took into account the race of its elementary school children in drawing attendance lines. To have done otherwise would have severely hampered the board’s ability to deal effectively with the task at hand. School boards that operated dual school systems are “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board, 391 U. S. 430, 437-438 (1968). In this remedial process, steps will almost invariably require that students be assigned “differently because of their race.” See Swann v. Charlotte-Mecklenburg Board of Education, ante, p. 1; Youngblood v. Board of Public Instruction, 430 F. 2d 625, 630 (CA5 1970). Any other approach would freeze the status quo that is the very target of all desegregation processes.

Nor is the board’s plan barred by Title IV of the Civil Rights Act of 1964. The sections relied upon by respondents (42 U. S. C. §§ 2000c (b), 2000c-6) are directed only at federal officials and are designed simply to foreclose any interpretation of the Act as expanding the powers of federal officials to enforce the Equal Protection Clause. Swann, supra, at 17. Title IV clearly does not restrict state school authorities in the exercise of their discretionary powers to assign students within their school systems.

Reversed.

       It may well be that the Board of Education adopted the present student-assignment plan because of urgings of federal officials and fear of losing federal financial assistance. The state trial court, however, made no findings on these matters. No federal officials are parties in this case.

       Where the distance between the student's residence and his assigned school is more than 1% miles, free transportation is provided. There is no challenge here to the feasibility of the transportation provisions of the plan. The annual transportation expenses of the present plan are reported in the record to be $11,070 less than the school system spent on transportation during the 1968-1969 school year under dual operation.


text:
    NORTH CAROLINA STATE BOARD OF EDUCATION et al. v. SWANN et al.
    No. 498.
    Argued October 13, 1970
    Decided April 20, 1971
    Burger, C. J., delivered the opinion for a unanimous Court.

      Andrew A. Vañore, Jr., Assistant Attorney General of North Carolina, argued the cause for appellants. With him on the brief were Robert B. Morgan, Attorney General, and Ralph Moody, Deputy Attorney General.

      James M. Nabrit III argued the cause for appellees. With him on the brief were Jack Greenberg, Norman J. Chachkin, J. LeVonne Chambers, C. O. Pearson, and Anthony G. Amsterdam.

      Solicitor General Griswold and Assistant Attorney General Leonard filed a brief for the United States as amicus curiae.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

This case is here on direct appeal pursuant to 28 U. S. C. § 1253 from the judgment of a three-judge court in the United States District Court for the Western District of North Carolina. The District Court declared unconstitutional a portion of the North Carolina General Statutes known as the Anti-Busing Law, and granted an injunction against its enforcement. The proceeding before the three-judge court was an ancillary proceeding connected with the school desegregation case heretofore discussed, Swann v. Charlotte-Mecklenburg Board of Education, ante, p. 1. The instant appeal was taken by the North Carolina State Board of Education and four state officials. We granted the Charlotte-Mecklen-burg school board’s motion to join in the appeal, 400 U. S. 804 (1970).

When the litigation in the Swann case recommenced in the spring of 1969, the District Court specifically directed that the school board consider altering attendance areas, pairing or consolidation of schools, bus transportation of students, and any other method which would effectuate a racially unitary system. That litigation was actively prosecuted. The board submitted a series of proposals, all rejected by the District Court as inadequate. In the midst of this litigation over the remedy to implement the District Court’s order, the North Carolina Legislature enacted the anti-busing bill, set forth in relevant part in footnote 1.

Following enactment of the anti-busing statute the plaintiffs in the Swann case obtained leave to file a supplemental complaint which sought injunctive and declaratory relief against the statute. They sought to convene a three-judge court, but no action was taken on the requests at that time because the school board thought that the anti-busing law did not interfere with the school board’s proposed plan to transport about 4,000 Negro children to white suburban schools. 306 F. Supp 1291 (WDNC 1969). Other parties were added as defendants by order of the District Court dated February 25. In addition, certain persons who had brought a suit in state court to enjoin or impede the order of the federal court, the attorneys for those litigants, and state judges who at various times entered injunctions against the school authorities and blocked compliance with orders of the District Court were also joined; a three-judge court was then convened.

We observed in Swann, supra, at 16, that school authorities have wide discretion in formulating school policy, and that as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements. However, if a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.

The legislation before us flatly forbids assignment of any student on account of race or for the purpose of creating a racial balance or ratio in the schools. The prohibition is absolute, and it would inescapably operate to obstruct the remedies granted by the District Court in the Swann case. But more important the statute exploits an apparently neutral form to control school assignment plans by directing that they be “color blind”; that requirement, against the background of segregation, would render illusory the promise of Brown v. Board of Education, 347 U. S. 483 (1954). Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems.

Similarly, the flat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swann, the Constitution does not compel any particular degree of racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful starting points in shaping a remedy. An absolute prohibition against use of such a device — even as a starting point — contravenes the implicit command of Green v. County School Board, 391 U. S. 430 (1968), that all reasonable methods be available to formulate an effective remedy.

We likewise conclude that an absolute prohibition against transportation of students assigned on the basis of race, “or for the purpose of creating a balance or ratio,” will similarly hamper the ability of local authorities to effectively remedy constitutional violations. As noted in Swann, supra, at 29, bus transportation has long been an integral part of all public educational systems, and it is unlikely that a truly effective remedy could be devised without continued reliance upon it.

The remainder of the order of the District Court is affirmed for the reasons stated in its opinion, 312 F. Supp. 503.

Affirmed.

       So far as here relevant, N. C. Gen. Stat. § 115-176.1 (Supp. 1969) reads as follows:
      “No student shall be assigned or compelled to attend any school on account of race, creed, color or national origin, or for the purpose of creating a balance or ratio of race, religion or national origins. Involuntary bussing of students in contravention of this article is prohibited, and public funds shall not be used for any such bussing.”

       312 F. Supp 503 (1970). The opinion as printed grants only declaratory relief. However, the District Court amended its original opinion by withdrawing Part V and entering an order dated June 22, 1970, which enjoined all parties “from enforcing, or seeking the enforcement of,” the portion of the statute found unconstitutional.


author: Per Curiam.

text:
    MOORE et al. v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al.
    No. 444.
    Argued October 13, 1970
    Decided April 20, 1971

      Whiteford S. Blakeney argued the cause for appellants. With him on the brief was William H. Booe.

      William J. Waggoner argued the cause for appellees. With him on the brief was Benjamin S. Horack.

      Solicitor General Grisioold and Assistant Attorney General Leonard filed a brief for the United States as amicus curiae.

   Per Curiam.

Appellants seek review of the decision of the United States District Court for the Western District of North Carolina declaring a portion of the North Carolina anti-busing statute unconstitutional, and enjoining its enforcement. It is a companion case to No. 498, North Carolina State Board of Education v. Swann, ante, p. 43. We postponed decision on the question of jurisdiction, 400 U. S. 803 (1970), and after hearing on the merits we now dismiss the appeal for lack of jurisdiction.

At the hearing both parties argued to the three-judge court that the anti-busing law was constitutional and urged that the order of the District Court adopting the Finger plan should be set aside. We are thus confronted with the anomaly that both litigants desire precisely the same result, namely a holding that the anti-busing statute is constitutional. There is, therefore, no case or controversy within the meaning of Art. Ill of the Constitution. Muskrat v. United States, 219 U. S. 346 (1911). Additionally, since neither party sought an injunction to restrain a state officer from enforcing a state statute alleged to be unconstitutional, 28 U. S. C. § 2281, this is not an appeal from “any civil action, suit or proceeding required ... to be heard ... by a district court of three judges,” 28 U. S. C. § 1253, and hence no direct appeal to this Court is available.

Dismissed.


author: Mr. Justice Black Mr. Justice Stewart,

text:
    ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE v. YEE CHIEN WOO
    No. 156.
    Argued February 23, 1971
    Decided April 21, 1971

      Blacic, J., delivered the opinion of the Court, in which Burger, C. J., and HarlaN, White, and Blackmun, JJ., joined. Stewart, J., filed a dissenting opinion, in which Douglas, BreNNAN, and Marshall, JJ., joined, post, p. 58.

      Charles Gordon argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, Beatrice Rosenberg, Paul C. Summitt, and George W. Masterton.

      Gordon G. Dale argued the cause and filed a brief for respondent.
   Mr. Justice Black

delivered the opinion of the Court.

Respondent, Yee Chien Woo, is a native of mainland China, a Communist country, who fled that country in 1953 and sought refuge in Hong Kong. He lived in Hong Kong until 1959 when he came to the United States as a visitor to sell merchandise through a concession at a trade fair in Portland, Oregon. After a short stay, he returned to Hong Kong only to come back to the United States in 1960 to participate in the San Diego Fair and International Trade Mart to promote his Hong Kong business. Thereafter he remained in the United States although he continued to maintain his clothing business in Hong Kong until 1965. In 1965 respondent’s wife and son obtained temporary visitor’s permits and joined him in this country. By 1966 all three had overstayed their permits and were no longer authorized to remain in this country. After the Immigration and Naturalization Service began deportation proceedings, Yee Chien Woo applied for an immigrant visa claiming a “preference” as an alien who had fled a Communist country fearing persecution as defined in §203 (a)(7) of the Immigration and Nationality Act of 1952, as amended, 79 Stat. 913, 8 U. S. C. § 1153 (a)(7) (1964 ed., Supp. V).

The District Director of the Immigration and Naturalization Service denied respondent’s application because “the applicant’s presence in the United States ... was not and is not now a physical presence which was a consequence of his flight in search of refuge from the Chinese mainland.” (Emphasis added.) On appeal within the Immigration and Naturalization Service, the decision of the District Director was affirmed by the Regional Commissioner on the ground that “Congress did not intend that an alien, though formerly a refugee, who had established roots or acquired a residence in a country other than the one from which he fled would again be considered a refugee for the purpose of gaining entry into and or subsequently acquiring status as a resident in this, the third country.”

Respondent then sought review in the United States District Court for the Southern District of California which reversed the District Director’s determination. That court, without ever deciding whether resettlement would have barred respondent’s claim, found as a matter of fact that he had never firmly resettled in Hong Kong. The Immigration and Naturalization Service appealed to the United States Court of Appeals for the Ninth Circuit. That court affirmed the District Court because in its view whether Yee Chien Woo was “firmly resettled” in Hong Kong was “irrelevant” to consideration of his application for an immigration quota. It stated:

“Whether appellee was firmly resettled in Hong Kong is not, then, relevant. What is relevant is that he is not a national of Hong Kong (or the United Kingdom); that he is a national of no country but Communist China and as a refugee from that country remains stateless.” 419 F. 2d 252, 254 (1969).

The Court of Appeals for the Second Circuit in a case decided after the Ninth Circuit decision below faced the issue of the relevancy of resettlement and expressly declined to follow the Ninth Circuit interpretation of the statute. Shen v. Esperdy, 428 F. 2d 293 (1970). We granted certiorari in this case to resolve the conflict. 400 U. S. 864 (1970).

Since 1947 the United States has had a congressionally enacted immigration and naturalization policy which granted immigration preferences to “displaced persons,” “refugees,” or persons who fled certain areas of the world because of “persecution or fear of persecution on account of race, religion, or political opinion.” Although the language through which Congress has implemented this policy since 1947 has changed slightly from time to time, the basic policy has remained constant — to provide a haven for homeless refugees and to fulfill American responsibilities in connection with the International Refugee Organization of the United Nations. This policy is currently embodied in the “Seventh Preference” of § 203 (a) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1153 (a) (1964 ed., Supp. V), which provides in pertinent part:

“(a) Aliens who are subject to the numerical limitations specified in section 201 (a) shall be allotted visas or their conditional entry authorized, as the case may be, as follows:
“(7) [A]liens who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-dominated country, (A) that (i) because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area, . . . and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the countries or areas in which their application for conditional entry is made . . .

The Ninth Circuit supported its conclusion that the “firmly resettled” concept was irrelevant under § 203 (a) (7) upon two bases. First, the court noted that the “firmly resettled” language was first introduced in the Displaced Persons Act of 1948, 62 Stat. 1009, and was then expressly stated in the Refugee Relief Act of 1953, 67 Stat. 400, both of which are predecessors of the present legislation. However, when the Refugee Relief Act of 1953 was extended in 1957, the “firmly resettled” language was dropped in favor of a formula defining an eligible refugee as “any alien who, because of persecution or fear of persecution on account of race, religion, or political opinion has fled or shall flee” from certain areas. 71 Stat. 643. The 1957 Act was then followed by the Fair Share Refugee Act of 1960, 74 Stat. 504, which defined “refugee” as one “not a national of the area in which the application is made, and (3) [who] is within the mandate of the United Nations High Commissioner for Refugees.” Finally, the present legislation was added to the Immigration and Nationality Act in 1965. From the 1957 abandonment of the words “firmly resettled” the Court of Appeals determined that Congress had purposely rejected “resettlement” as a test for eligibility for refugee status.

Second, the Ninth Circuit gave particular significance to the statutory requirement that refugees “are not nationals of the countries or areas in which their application for conditional entry is made.” Thus, in the court’s view, Congress intended to substitute the “not nationals” requirement for the not “firmly resettled” requirement. For substantially the reasons stated by the Second Circuit in Shen v. Esperdy, 428 F. 2d 293 (1970), we find no congressional intent to depart from the established concept of “firm resettlement” and we do not give the “not nationals” requirement of § 203 (a) (7) (A) (iii) as broad a construction as did the court below.

While Congress did not carry the words “firmly resettled” over into the 1957, 1960, and 1965 Acts from the earlier legislation, Congress did introduce a new requirement into the 1957 Act — the requirement of “flight.” The 1957 Act, as well as the present law, speaks of persons who have “fled” to avoid persecution. Both the terms “firmly resettled” and “fled” are closely related to the central theme of all 23 years of refugee legislation- — the creation of a haven for the world's homeless people. This theme is clearly underlined by the very titles of the Acts over the years from the Displaced Persons Act in 1948 through the Refugee Relief Act and the Fair Share Refugee Act of 1960. Respondent’s reliance on the Fair Share Refugee Act of 1960 to show that Congress abandoned the “firmly resettled” concept is particularly misplaced because Congress envisioned that legislation not only as the means through which this country would fulfill its obligations to refugees, but also as an incentive to other nations to do likewise. Far from encouraging resettled refugees to leave one secure haven for another, the Act established United States quotas as a percentage— 25% — of the refugees absorbed by all other cooperating nations. The Fair Share Refugee Act, like its successor and predecessors, was enacted to help alleviate the suffering of homeless persons and the political instability associated with their plight. It was never intended to open the United States to refugees who had found shelter in another nation and had begun to build new lives. Nor could Congress have intended to make refugees in flight from persecution compete with all of the world’s resettled refugees for the 10,200 entries and permits afforded each year under § 203 (a)(7). Such an interpretation would subvert the lofty goals embodied in the whole pattern of our refugee legislation.

In short, we hold that the “resettlement” concept is not irrelevant. It is one of the factors which the Immigration and Naturalization Service must take into account to determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid persecution. The District Director applied the correct legal standard when he determined that § 203 (a) (7) requires that “physical presence in the United States [be] a consequence of an alien’s flight in search of refuge,” and further that “the physical presence must be one which is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.”

Finally, we hold that the requirement of § 203 (a)(7) (A) (iii) that refugees not be “nationals of the countries or areas in which their application for conditional entry is made” is not a substitute for the “resettlement” concept. In the first place that section is not even applicable to respondent. He was applying for an immigrant visa, not a conditional entry permit to which part (A) (iii) of subsection 7 is expressly limited. He had already been granted entry to the United States as a business visitor. Second, even if the provision were applicable, the country “in which” respondent’s application was made was the United States and he was certainly not a national of this country. Had he been a national he of course would have been entitled to remain here. Section 203 (a) (7) (A) (iii) applies only to applications for conditional entry into this country made to Immigration and Naturalization officers authorized to accept such applications at points outside the United States.

Because it was under the erroneous impression that resettlement was irrelevant to refugee status under § 203 (a) (7), the Court of Appeals failed to review the District Court’s finding that respondent had never firmly resettled in Hong Kong. The District Director is, of course, entitled to review of that determination under the legal test set out in this opinion and the appropriate standards for judicial review. Consequently, the judgment below is reversed and the case is remanded to the Ninth Circuit for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Stewart,

with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join, dissenting.

On March 8, 1966, the respondent, who fled mainland China for Hong Kong in 1953 and has resided in the United States since May 22, 1960, filed with the Immigration and Naturalization Service an application for adjustment of status pursuant to §203 (a)(7) of the Immigration and Nationality Act, as amended, 8 U. S. C. §1153 (a)(7) (1964 ed., Supp. V). By the terms of § 203 (a)(7) applicants for adjustment of status are required to show:

1. that they “have been continuously physically present in the United States for a period of at least two years prior to application for adjustment of status;”

2. that “because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area . . . ;”

3. that they “are unable or unwilling to return to such country or area on account of race, religion, or political opinion;”

4. that they “are not nationals of the countries or areas in which their application for conditional entry is made . . .

The District Director denied the respondent’s application for adjustment of status because of “intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.” An administrative appeal was certified to the Regional Commissioner who held that § 203 (a)(7) does not apply “to aliens who although they had fled from their own country were later resettled in another country.”

Section 203 (a)(7) contains no requirement that an applicant shall not have “resettled” prior to his application for conditional entry or adjustment of status. A requirement that an applicant shall not have “firmly resettled” did appear in an earlier version of the law but was eliminated by the 1957 amendments to the Refugee Relief Act of 1953. The requirement was not reintroduced in any of the subsequent enactments. To the contrary, cognizant House and Senate committees rejected a proposal of the Department of State that contained a requirement that a refugee alien must be one who “has not been firmly resettled . . . .” S. Rep. No. 1651, 86th Cong., 2d Sess., 19; H. R. Rep. No. 1433, 86th Cong., 2d Sess., 12. Senator Kennedy, who, as Chairman of the Subcommittee on Immigration and Naturalization of the Senate Judiciary Committee, presided over Senate hearings on the present §203 (a)(7), stated that refugees “[a]s defined in this bill” “must be currently settled in countries other than their homelands.” Ill Cong. Rec. 24227. This statement is flatly inconsistent with the proposition that the persons described in § 203 (a)(7) cannot have resettled in another country following their original flight.

In the face of the unambiguous language of § 203 (a) (7) and this clear legislative history, the Court today holds that a requirement of firm resettlement may properly be read back into the statute so as not to subvert what it considers to be the “central theme” of refugee legislation — “the creation of a haven for the world's homeless people.” I have no doubt that in enacting refugee legislation Congress intended to provide a haven for the homeless. But the Court offers no reason to believe that Congress did not also intend to help those others who have fled their homeland because of oppression, have found a temporary refuge elsewhere, and now desire to immigrate to the United States. Congress may well have concluded that such people should be preferred to immigrants who have not suffered such hardship. The clear language of §203 (a)(7) demonstrates to me that this was exactly what Congress intended to accomplish.

Whether the Attorney General has discretion concerning the order in which § 203 (a) (7) applications are processed is a different issue and one that is not before us. The Attorney General has not sought to invoke whatever discretion he may have to process the applications of the homeless before turning to those whose plight may be thought less pressing. Indeed it appears that in many years a number of the visas annually available for § 203 (a)(7) applicants have gone unused.

The only issue before the Court is whether a refugee is totally barred from any consideration under § 203 (a) (7) by virtue of resettlement following flight. In view of the language of the statute and its legislative history, I cannot but conclude that under § 203 (a) (7) the respondent was eligible for the adjustment of status that he sought.

For these reasons I dissent.

       “Without expressing any opinion as to why Congress chose to omit the ‘firmly resettled’ provision in the amendments to the Refugee Relief Act of 1953, this court finds that plaintiff was never ‘firmly resettled’ and still qualifies as a refugee under the terms of section 203 (a) (7). Accordingly, the District Director erred in denying plaintiff’s application.” 295 F. Supp. 1370, 1372 (1968).

       The Second Circuit dealt at length with the Ninth Circuit’s opinion in this case, concluding:
      “In so far as Yee Chien Woo v. Rosenberg holds that the concept of firm resettlement is irrelevant to applications made under section 203 (a) (7) of the Act, we must disagree with the Ninth Circuit.” 428 F. 2d 293, 298 (1970).

       The Displaced Persons Act of 1948 defined a “displaced person” by reference to the Constitution of the International Refugee Organization (IRO) and to persons who were of concern to that organization. Persons ceased to be of concern to the IRO when they acquired a new nationality or by their firm establishment. S. Rep. No. 950, 80th Cong., 2d Sess., 68.
      The Refugee Relief Act of 1953 provided: “ ‘Refugee’ means any person in a country or area which is neither Communist nor Communist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not been firmly resettled, and who is in urgent need of assistance for the essentials of life or for transportation.” Refugee Relief Act of 1953, § 2 (a), 67 Stat. 400.

       The 1957 amendments to the Refugee Relief Act of 1953 did not mark any great change in American refugee policy. Congress was primarily concerned with distributing 18,656 visas that were originally authorized under the 1953 Act but remained unissued when that Act expired on January 1, 1957. The Senate report on the bill states the congressional intent: “It is the intention of the committee that the distribution of this remainder will be made in a fair and equitable manner, without any prescribed numerical limitations for any particular group, according to the showing of hardship, persecution, and the welfare of the United States.” S. Rep. No. 1057, 85th Cong., 1st Sess., 6. Indeed, after the 1957 Act became law the Immigration and Naturalization Service promulgated and uniformly administered regulations which specifically referred to the resettlement requirement.
      “§ 44.1 Definitions.

      “(f) ‘Refugee’ means any person in a country or area which is neither Communist nor Communist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not been firmly resettled and who is in urgent need of assistance for the essentials of life or for transportation.” 22 CFR § 44.1 (1958), 22 Fed. Reg. 10826 (Dec. 27, 1957).

       Careful study of the Fair Share Refugee Act demonstrates that resettlement was relevant even under that legislation. In order to qualify as a refugee under the Fair Share Refugee Act, the alien had to be “within the mandate of the United Nations High Commissioner for Refugees.” Specifically excluded from the Commissioner’s competence was a person who “is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country . . . .” Statute of the Office of the United Nations High Commissioner for Refugees, c. II, par. 7 (b), contained in G. A. Res. 428 (V), December 14, 1950. It appears that under this statute, Yee Chien Woo probably would not have fallen within the Commissioner’s mandate because although he was not a Hong Kong (or British) national, he possessed valid Hong Kong identity papers enabling him to return and live there.

       The legal standard employed by the District Director and approved here today does not exclude from refugee status those who have fled from persecution and who make their flight in successive stages. Certainly many refugees make their escape to freedom from persecution in successive stages and come to this country only after stops along the way. Such stops do not necessarily mean that the refugee’s aim to reach these shores has in any sense been abandoned. However, there are many refugees who have firmly resettled in other countries and who either never aimed to reach these shores or have long since abandoned that aim. In the words of the District Director, the presence of such persons in this country is not “one which is reasonably proximate to the flight” or is “remote in point of time or interrupted by intervening residence in a third country.” Such persons are not entitled to refugee status under § 203 (a) (7).
      In this very case, the District Court found that Yee Chien Woo was not firmly resettled even though he had lived in Hong Kong for six years after his initial flight. We do not express an opinion on that finding but merely remand the case to the Court of Appeals for review in accord with the proper legal standard.

       Section 203 (c), 8 U. S. C. § 1153 (c) (1964 ed., Supp. V), which provides that visas shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General, does not by its terms apply to visas issued pursuant to § 203 (a) (7). And Senator Kennedy stated that under § 203 (a) (7) “the cases of greatest need can be processed at once.” Ill Cong. Rec. 24227.

       1969 Annual Report, Immigration and Naturalization Service 38.