MR. JUSTICE REHNQUIST, with whom MR. JUSTICE POWELL joins, dissenting.
Efforts to describe the complex of factors that go into a decision by this Court to deny certiorari in any given case date back at least to the opinion of Mr. Justice Frankfurter in Maryland v. Baltimore Radio Show , 338 U.S. 912 (1950), and I shall make no attempt to embroider them here. Some Members of the Court may feel that a case is wrongly decided, but lacking in general importance; others may feel that it is of general importance, but rightly decided; for either reason, a vote to deny certiorari is logically dictated. In these cases it seems to me demonstrable that the Court of Appeals has not properly assessed the relationship between Swann v. Charlotte-Mecklenburg Board of Education , 402 U.S. 1 (1971), and Pasadena City Board of Education v. Spangler , 427 U.S. 424 (1976). Obviously we cannot review in this Court every school desegregation case decided by a Court of Appeals, and particularly where, as here, the Court of Appeals merely remands the case to the District Court for further proceedings, there is a very natural tendency to conclude that the decisions of the Court of Appeals are not deserving of plenary review given the almost unmanageable caseload of the Court. But the Court of Appeals from which these cases come historically has had to decide more school desegregation cases than any other Court of Appeals, and the interminable pendency of school desegregation litigation resulting from remand orders such as these is precisely what was condemned in Pasadena, supra . I would therefore grant
certiorari to review the orders of the Court of Appeals remanding these cases to their respective District Courts.
Nos. 77-1464 and 77-1467. South Park Independent School District
The United States brought this action in 1970, and in that same year the District Court adopted a school desegregation plan submitted by the district, "with certain modifications designed to increase the overall percentage of integration at particular schools." App. to Pet. for Cert. in No. 77-1467, pp. C-1 -- C-2 (hereinafter cited as Pet.). Since no party sought to appeal, the District Court's order became final. Almost six years later, the United States filed a motion for "supplemental relief," seeking an order requiring the district to "develop, adopt and implement a comprehensive school desegregation plan." The Government's motion, it should be noted, was filed after this Court's decision in Pasadena, supra . The motion was supported largely by the Government's assertion that during the 1975-1976 school term, 75.1% of all black students in the system attended schools that were 92% or more black, while 77.5% of all white students attended schools that were 86% or more white. The School District filed a reply, a group of parents successfully sought to intervene, and two separate hearings on the Government's motion were held in the District Court. The School District called witnesses in support of its petition; the Government called none.
The court concluded from the evidence before it that the 1970 desegregation order had dissolved all vestiges of a dual system. Noting that in each academic year since entry of the 1970 order total student enrollment in the district had consistently declined, while the percentage of black students enrolled in the district had steadily increased, the District Court found that "[the] desegregative results differing from those anticipated in 1970 have been the result of shifting residential
patterns, attendance of some district students at private schools, and other factors beyond the control of defendant [school district]...." Pet. B-5. The court also found that the School District had complied with the 1970 order in all respects and had taken no action having a natural and foreseeable segregative effect on schools in the district. Student class assignments in the district had been made without regard to race or color, and no state agency had attempted to alter the residential or demographic patterns affecting the comprehensive neighborhood attendance plan set forth in the 1970 order. Concluding that no further action on its part was constitutionally required, the District Court denied the motion for supplemental relief.*fn1
The Court of Appeals believed that this case was governed by a single passage from Swann v. Charlotte-Mecklenburg Board of Education , 402 U.S., at 26, removed from its context, describing the duty of district courts to scrutinize initial desegregation plans proposed by school boards for systems with a history of segregation where such plans contemplate the continuance of some schools that "are all or predominantly of ...