Discretion on De Facto

THE SUPREME COURT

Are school boards constitutionally obliged to remedy school segregation caused by housing patterns? No, implied the Supreme Court last spring when it refused to review a lower-court decision permitting the Gary, Ind., board to ignore de facto segregation. Are school boards constitutionally empowered to remedy de facto if they wish to? Yes, implied the Supreme Court when it refused to review a decision last week by the New York Court of Appeals.

Unlike Gary, New York City's board of education had deliberately made pupils' race a consideration as it tried to "balance" a de facto school. It drew the attendance zone for a new Brooklyn junior high school in such a way that its pupils were equally divided among Negroes, Puerto Ricans and "others," which is the board's euphemistic term for non-Puerto Rican whites. But four white parents claimed that the plan set up a racial quota system that violated a state education law against school racial discrimination. Not so, countered the board, arguing that the so-called quota was designed only to balance the new school at the beginning. After that, the school would be open to any child of any race who lived in or moved into the school's area.

A trial court ruled against the board, but the state's highest court found that the school zoning plan was fair, reasonable, and carefully aimed at avoiding segregation rather than enforcing it. Given such circumstances, ruled the court, the board is constitutionally permitted to zone new schools on the basis of race "in addition to other relevant factors." By refusing to review either the Gary or New York decisions, the only such cases that have thus far reached it, the Supreme Court, as predicted (TiME, Sept. 18), has held in effect that the Constitution currently gives school boards broad discretion to treat de facto as local wisdom dictates.

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