Indiana Law Review


Indianapolis Desegregation:

Segregative Intent and the Interdistrict Remedy

I. Introduction

The desegregation of this nation's public schools has, since 1954,
posed a series of nearly intractable problems for the federal ju-

diciary. In that year, the "separate but equal" doctrine of Plessy v.

Ferguson^ was discarded for the public schools, and a new era in
education and law was born in the Supreme Court opinion of Brown
V. Board of Education (Brown D.^ Brown I was the result of a
carefully planned and executed campaign by the NAACP against
legally segregated school systems.^ School districts from South

Carolina, Virginia, Kansas, and Delaware were initially confronted
and combined in this case.* The Supreme Court held "that the plain-
tiffs and others similarly situated for whom the actions have been
brought are, by reason of the segregation complained of, deprived of

the equal protection of the laws guaranteed by the Fourteenth

Amendment"^ because "[s]eparate educational facilities are inherently
unequal."^

The Court said that the inequality perceived in segregated
schools stems not from the tangible aspects of education^ but rather

from the fact that "[sjegregation with the sanction of law . . . has a

tendency to [retard] the educational and mental development of
negro children and to deprive them of some of the benefits they
would receive in a racially integrated school system."* When the in-
equality appears on the face of a state statute,^ the violation is ob-

'163 U.S. 537 (1896).

'347 U.S. 483 (1954) (Brown I).

^Afro-American History: Primary Sources 365 (T. Frazier ed. 1970).
*347 U.S. at 483 n.*. It is interesting to note that two of the cases — those from

Kansas and Delaware — were in northern states but were combined with the southern
cases because the segregation of the public school facilities was mandated by state law

in all four. See id. at 486-87 n.l.

'Id. at 495.

'Id.

'Id. at 492.

"Id. at 494.

'The following are examples of facially segregative laws: "The Trustee or

Trustees of each township, town or city, shall organize the colored children into

separate schools, having all the rights and privileges of other schools of the township."

Act of May 13, 1869, ch. 16, § 3 1869 Ind. Acts (Spec. Sess.) 41, as amended by Act of
March 5, 1877, ch. 81, § 1, 1877 Ind. Acts 124 (repealed by Act of March 8, 1949, ch.

186, §§ 1-8, 1949 Ind. Acts 603 (replaced by Ind. Code §§ 20-8.1-2-1 to -7 (1976)). "It shall

be unlawful for pupils of one race to attend the schools provided by the boards of

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800 INDIANA LAW REVIEW [Vol. 14:799

viously offensive and is clearly subject to the strictures of the equal

protection clause of the fourteenth amendment. Such laws inevitably
create a dual system of education wherein blacks and whites each

have their own schools. Therefore, problems of desegregating racially
segregated schools arise predominantly when state action is subtle
and the intent to create a dual system is less defined. This situation is

more likely to be confronted in the North than in the South because
southern legislators promulgated more facially segregative laws.'"

The Indianapolis desegregation case," spanning twelve years of
litigation, is, in many respects, a prototype of school desegregation
actions in the North. The actions creating the segregative condition
were often facially neutral. Yet, the case is unique because the inter-
district remedy suggested by District Judge Dillin in 1971'^ was
relatively innovative. Interdistrict remedies had rarely been con-

sidered, much less implemented, up to that time." The Indianapolis
litigation is also unique for the very reason that there was a nine-
year delay between the 1971 remedy and its "acceptance" in 1980 by
the Supreme Court.'" Because each school desegregation case encom-
passes a different factual situation, it is extremely difficult for the

judiciary, inexperienced in the field of education, to formulate a

coherent and cohesive body of law. The Indianapolis case can be
viewed both as a stage in the evolving case law on desegregation

and as one of the many disparate decisions ratified on a case-by-case
basis by a Court grappling with the almost insurmountable task

created by Brown I.

trustees for persons of another race." S.C. Code § 59-63-10 (1976). "White and colored

children shall not be taught in the same school." Va. Const, of 1902 § 140 (repealed by

Va. Const, art. VIII, § 1 (1971)).

'"Wright, Public School Desegregation: Legal Remedies for De Facto Segre-

gation, 40 N.Y.U.L. Rev. 285. 287 (1965).

"The litigation included many published opinions: United States v. Board of

School Comm'rs, 332 F. Supp. 655 (S.D. Ind. 1971), aff'd, 474 F.2d 81 (7th Cir.), cert,

denied. 413 U.S. 920 (1973) [hereinafter cited as Indianapolis I]; United States v. Board

of School Comm'rs, 368 F. Supp. 1191 (S.D. Ind.) [hereinafter cited as Indianapolis II],

supp. mem. of decision, 368 F. Supp. 1223 (S.D. Ind. 1973) [hereinafter cited as In-

dianapolis III], aff'd in part, rev'd in part, and remanded, 503 F.2d 68 (7th Cir. 1974),

cert, denied, 421 U.S. 929. on remand, 419 F. Supp. 180 (S.D. Ind. 1975) [hereinafter

cited as Indianapolis IV], aff'd, 541 F.2d 1211 (7th Cir. 1976), vacated and remanded

sub nam. Bowen v. United States, 429 U.S. 1068 (1977). on remand, 573 F.2d 400 (7th

Cir.), cert, denied, 439 U.S. 824 (1978), on remand, 456 F. Supp. 183 (S.D. Ind. 1978)

[hereinafter cited as Indianapolis V], aff'd, 637 F.2d 1101 (7th Cir.), cert, denied, 101 S.

Ct. 114 (1980). References to the litigation in this Note will be to the specific bracketed

appellations.

"Indianapolis I, 332 F. Supp. at 679.

'^See note 65 infra and accompanying text.

''United States v. Board of School Comm'rs. 637 F.2d 1101 (7th Cir. 1980). cert.

denied, 101 S. Ct. 114 (1980).



1981] INTERDISTRICT BUSING 801

The purpose of this Note is to analyze the constitutional viola-
tion and the subsequent imposition of an interdistrict remedy in In-
dianapolis. The Indianapolis case will be compared with other case
law with respect to the finding of segregative intent and will be

reconciled with major decisions in other public school cases. This

reconciliation will point out the infirmities in the Indianapolis opin-

ions which enable them to be harmonized with other decisions. This

Note will also indicate why the interdistrict remedy in Indianapolis
would today probably be accepted on a lesser standard of segre-

gative intent than the lower courts' opinions indicate.

II. Northern Segregation

The plight of black pupils in the North began with southern
racial attitudes and the great migrations of black families from the

South in the first decades of the twentieth century.'^ Great numbers
of blacks, discouraged by agricultural conditions in the South and

enticed by the industrial North, arrived at their new urban homes
and found themselves segregated from their white neighbors.'* Al-

though some northern legislatures had enacted facially segregative
laws,'^ most northern segregation was the result of private
discrimination, poverty, and a strong cultural identity creating

distinct black metropolitan ghettos. '*

Today, this isolation is perpetuated in school districts where
there exists a strong policy to send children to schools near their

homes: "[I]t is becoming apparent that perhaps the primary cause of

. . . segregation in urban schools is the socio-economic conditions of

the Negro. . . . Segregation results from adherence to the neighbor-

hood school assignment policy."'® City schools become even more
racially identifiable as a result of "white flight" — the fleeing of
white families from inner cities to outlying areas. This type of

school segregation, called de facto segregation, is racial separation

caused by forces unconnected to any purposeful state action^" and as

such has traditionally not been considered amenable to remedy. De

'^See Afro-American History: Primary Sources 249-51 (T. Frazier ed. 1970).

'"/d. "Between the years 1910 and 1920, the black population increased in Detroit

by 611.3 per cent, in Cleveland by 307.8 per cent, in Gary (Indiana) by 1,283.6 per cent,

in Chicago by 148.2 per cent." Id. at 249.

"Keyes v. School District No. 1: Unlocking the Northern Schoolhouse Doors, 9
Harv. C.R.-C.L.L. Rev. 124, 124 (1974).

"See Spear, The Origins of the Urban Ghetto, 1870-1915, in 2 Key Issues in the
Afro-American Experience 153 (1971).

"40 N.Y.U.L. Rev., supra note 10, at 290.

^°J. NowAK, R. Rotunda & J. Young, Handbook on Constitutional Law 567-68
(1978). Racially identifiable schools create the impression of a dual system.



802 INDIANA LAW REVIEW [Vol. 14:799

jure segregation, on the other hand, is created by intentional state

action and is unconstitutional and remediable. The equal protection
issues in northern school desegregation cases, therefore, revolve

around whether the current duality in schools was caused by the
more "benign" de facto segregation or by de jure segregation.

The emphasis upon finding segregative intent in northern cases
was born in the Supreme Court decision in Keyes v. School District
No. 1, Denver,^^ the first major northern school case to reach the

Court after Brown I. According to the majority in Keyes, only those
acts that have the sanction of law and are intentionally segregative

violate the Constitution.^^ Therefore, the focus of a court's scrutiny

in a northern case must be upon the actions which created a
segregated school system.

Northern schools sometimes became segregated by laws that
either required or permitted segregation by their specific terms, as

in the Kansas and Delaware lower court cases which led to Brown
I.^^ This situation makes the determination of the offense fairly simple.
But intentionally segregative state action is much harder to find
when facially neutral state action has created a segregated condition
or aggravated existing de facto segregation. Such apparently neu-

tral acts as gerrymandered attendance boundaries,^^ optional atten-
dance zones,^^ free transfer systems,^^ and faculty segregation" have

been imposed by local school boards, not by state statute.^* State

^'413 U.S. 189 (1973).

"Id. at 198.

"Brown v. Board of Educ. 98 F. Supp. 797 (D. Kan. 1951); Belton v. Gebhart, 32
Del. Ch. 343, 87 A.2d 862 (1952).

^^Gerrymandering the attendance boundaries for each school building on racial

lines to maintain segregation is a fairly common practice. See, e.g., Adams v. United
States, 620 F.2d 1277, 1281 (8th Cir.), cert, denied, 101 S. Ct. 88 (1980); NAACP v. Lan-
sing Bd. of Educ. 559 F.2d 1042, 1056 (6th Cir.), cert, denied, 434 U.S. 997 (1977).

"Optional attendance zones give students in racially mixed residential areas the

opportunity to select the school of their choice; the student's decision is usually based

upon the predominant racial composition of the facility. E.g., United States v. Board of

School Comm'rs, 332 F. Supp. 655, 668 (S.D. Ind. 1971).

"Students are able to attend schools outside their attendance zones and even out-

side their districts when a school board has instituted a system of free transfer. E.g.,

Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 142, 149 (5th Cir. 1972),

cert, denied, 413 U.S. 920 (1973) (crossing attendance lines); Evans v. Buchanan, 393 F.

Supp. 428, 433 (D. Del. 1975) (crossing district lines).

"Once a dual system becomes apparent, it is not uncommon for a school board to
assign teachers to buildings in accordance with their own race. E.g.. United States v.

Board of School Comm'rs, 332 F. Supp. 655, 665 (S.D. Ind. 1971); Davis v. School Dist.,

309 F. Supp. 734, 743 (E.D. Mich. 1970), affd, 443 F.2d 573 (6th Cir.), cert, denied, 404

U.S. 913 (1971).

^'For the purpose of charging "state action" under the fourteenth amendment,

local school boards are considered agents of the state. See Cooper v. Aaron, 358 U.S. 1,



1981] INTERDISTRICT BUSING 803

legislatures have also become involved by formulating laws which
change or in some manner affect school district boundaries/'* These
kinds of state action will often have a disproportionate impact upon
blacks, creating the appearance of a dual school system; however,
absent a showing of an intent or purpose to racially segregate, no
remediable cause of action exists.^"

The problem in northern cases becomes further compounded if,
once de jure segregation within one district has been found, a

desegregation order within that district would be futile. This situa-

tion typically occurs when a court believes that an intradistrict
remedy either would accelerate "white flight" and create an iden-
tifiably black district^' or would merely rearrange an already racially

distinct district.^^ In view of this dilemma, the utility of fashioning

an interdistrict metropolitan remedy becomes apparent. Under an
interdistrict remedy, adjacent, usually white, districts are united in

some manner with the offending district in order to cure the con-
stitutional violation. The Indianapolis case revolves around this ad-
junct of the northern desegregation problem and exemplifies many
of the problems surrounding the imposition of an interdistrict

remedy.

III. BACKGROUND OF THE INDIANAPOLIS CASE

A. Segregation and Education in Indiana

Prior to its becoming a state, Indiana was a part of the North-
west Territory, an immense area of land ceded to the United States

16 (1958). In Indiana, actions by school corporations are state actions because the

schools are organized by the state's Department of Public Instruction. The state public
school system is a state institution, thereby making the individual corporations agents
of the state. United States v. Board of School Comm'rs, 332 F. Supp. 655. 659 (S.D. Ind.

1971).

"United States v. Scotland Neck City Bd. of Educ, 407 U.S. 484 (1972); Higgins v.
Board of Educ, 508 F.2d 779 (6th Cir. 1974); Evans v. Buchanan, 393 F. Supp. 428 (D.
Del.), affd, 423 U.S. 963 (1975).

'"See Keyes v. School Dist. No. 1. Denver. 413 U.S. 189. 208 (1973). "We em-
phasize that the differentiating factor between de jure segregation and so-called de

facto segregation ... is purpose or intent to segregate." Id. (emphasis in original).

"United St,ates v. Board of School Comm'rs. 332 F. Supp. 655, 676 (S.D. Ind. 1971).

See text accompanying notes 68-69 infra.

''Milliken v. Bradley, 418 U.S. 717 (1974). In the Milliken case, the District Court

abruptly rejected the proposed Detroit-only plans on the grounds that "while [they]

would provide a racial mix more in keeping with the Black-White proportions of the

student population [they] would accentuate the racial identifiability of the [Detroit]

district as a Black school system, and would not accomplish desegregation." Id. ati

738-39.



804 INDIANA LAW REVIEW [Vol. 14:799

by Virginia.^^ Pro-slavery forces existed in the Indiana area, even

before the territorial cession, as a result of a combination of French,

British, and Virginian colonial influences/^ The pro-slavery factions
were not defeated until statehood in 1816 when the state constitu-
tional convention adopted an anti-slavery clause.^'' But old racial at-

titudes were slow to die, and the Indiana General Assembly, as well

as the constitutional conventions of 1816 and 1851, promulgated

patently discriminatory statutes, some of which were not repealed
until 1965.^** Blacks were separated from whites in most public

places until after World War IP^ and were often the subject of pri-
vate discrimination in the housing market.^* Early Indiana legis-

lators even went so far as to pass laws to exclude blacks and mulat-

tos from the state altogether.^** With this historical background, the

problems that arose in education are easily understandable.

In Indiana, the right to education was traditionally considered a
right conferred only upon white citizens of the state."" It was not

until 1869, subsequent to the adoption of the fourteenth amendment
to the United States Constitution, that education had to be provided

for blacks,"' and the initial legislation required separate schools for

black students."^ In 1877, the policy was made permissive by allow-
ing integration when separate schools were not available." In 1949,
legislation was adopted which prohibited school segregation and in-

cluded a gradual desegregation plan."" But by then, de jure segrega-

tion had already done its damage.

^^G. CoTTMAN, Centennial History and Handbook of Indiana 37 (1915).
'^B. Bond, Jr.. The Civilization of the Old Northwest 154 (1934).

'^M at 171. The anti-slavery clause that was adopted was from the Government

Ordinance of 1787 which formed the basic colonial structure of the Territory. Id. at 10,

171. The clause had already been adopted in Ohio. Id. at 171.

^"Indianapolis I, 332 F. Supp. at 660. One law, not repealed until 1965, declared

marriages between whites and blacks void. 1 Rev. Stat. ch. 67, § 2 (1852), cited in 332

F. Supp. at 660.

^'332 F. Supp. at 661. Such places included public hospitals, theatres, and state

parks. Id.

''Id. at 662-63.

''Ind. Const, of 1851, art. XHI. § 1 (1852), cited in 332 F. Supp. at 661.

"See, e.g., Lewis v. Henley, 2 Ind. 332, 334-35 (1850).

"Indianapolis I, 322 F. Supp. at 663-64.

"Act of May 13, 1869, ch. 16, § 3, 1869 Ind. Acts 41. See note 9 supra.
"See note 47 infra.

"Act of Mar. 8, 1949, ch. 186, 1949 Ind. Acts 603 (currently codified at Ind. Code

§ 20-8.1-2-1 (1976)). This Act reads in part:

[I]t is hereby declared to be the public policy of the State of Indiana to pro-

vide, furnish, and make available equal, non-segregated, non-discriminatory
educational opportunities and facilities for all regardless of race, creed, na-

tional origin, color or sex . . . and to abolish, eliminate and prohibit



1981] INTERDISTRICT BUSING 805

The effect of the discriminatory legislative acts was most notice-
able in larger urban areas, particularly Gary and Indianapolis,
where the black populations were more concentrated and isolated.
Although the school boards of both Gary and Indianapolis adopted
policies that seemed to foster segregation, only Indianapolis has ul-
timately been the subject of a desegregation order/^ The reason the
focus has been on Indianapolis beomes apparent when one looks at
the Indianapolis schools apart from the rest of the state.

B. Segregation in Indianapolis Schools

From the beginning of state-supported education in Indiana, de
jure elementary school segregation existed in Indianapolis;^** how-

ever, between 1877 and 1927, blacks and whites were allowed to go

to the high school of their choice. Indianapolis high schools were in-

tegrated during this period because the city had no separate high

schools for blacks, and the 1877 legislative amendment to the segre-
gration statute allowed integration if there were no separate

schools.''^ In 1927, at the instigation of the Indianapolis Chamber of
Commerce, Crispus Attucks High School was opened, and all black

high school students were compelled to attend that school regard-

less of the distance they were required to travel."* This new facility
solidified and perpetuated the dual school system in Indianapolis.

The school board failed to take advantage of the gradual desegrega-

tion plan offered by the legislature in 1949"^ and thus later en-

countered problems that might have been avoided.

One of the critical dates in the Indianapolis case was 1954 when
Brown /was decided.^" The Indianapolis school board, although adopt-
ing the policy of the 1949 statute, did not incorporate the true spirit

segregated and separate schools or school districts on the basis of race, creed

or color ....

Id. at § 1, 1949 Ind. Acts at 604. The desegregation of previously segregated schools
was to be accomplished on a grade-by-grade basis so that effects of discrimination
would be phased out rather than flatly abandoned. Id. at § 3, 1949 Ind. Acts at 604.

"An action was brought against the Gary schools in 1963, but the complaint was
dismissed for lack of a constitutional violation. Schools in the city were racially iden
tifiable, but the court of appeals attributed this circumstance to de facto causes and

held that there was no intent to discriminate. Bell v. School City of Gary, 324 F.2d 209,
213 (7th Cir. 1963).

Vndianapolis I, 332 F. Supp. at 664.

"Id. The amendment stated in pertinent part "[t]hat in case there may not be
provided separate schools for the colored children, then such colored children shall be

allowed to attend the public schools with white children." Act of Mar. 5, 1877, ch. 81, §
1, 1877 Ind. Acts 124.

"332 F. Supp. at 664.

"See note 44 supra.
'"332 F. Supp. at 657-58.



806 INDIANA LAW REVIEW [Vol. 14:799

of school desegregation into its actions. Construction policies and

transfer plans tended to minimize any efforts at desegregation by a

board which, until 1949, had built separate schools in racially

distinct neighborhoods and had completely segregated the schools'

faculties.^' In the 1952-53 academic year, the board froze attendance

boundaries along racially segregated residential lines.*^ By 1954, the
Indianapolis system was in the throes of nineteenth and twentieth
century de jure segregation and could well have been one of the test

cases in Brown I.
The other crucial date in the litigation, as in most desegregation

cases,^^ was the time of trial in 1968. Between 1954 and 1968, the In-
dianapolis school board's policies tended to maintain the dual nature

of the 1954 system as well as create new segregative conditions. As
racially identifiable neighborhoods grew, the school board added

new schools or enlarged existing schools in line with the racial com-
position of the neighborhood.^" Thus, racially identifiable schools

were created and perpetuated. Other segregative actions by the
school board included using optional attendance zones,^^ busing

students to same-race schools when other schools were closer,^* and
changing attendance boundaries approximately 350 times, with ninety

percent of those changes furthering segregation." The board was
not wholly to blame for the perpetuation of the dual system within

IPS during this period. The board faced a radically changing racial
population,^* new low-rent housing projects,^^ and lack of cooperation
by local officials with respect to zoning and use of city land for

schools.*" However, only the school board's actions became the initial
focus of litigation that lasted twelve years.

C. The Indianapolis Litigation

In 1968, the United States Department of Justice brought suit in

the federal district court for the Southern District of Indiana

against the Indianapolis school board alleging denial of equal protec-

^'M at 665-66.

''Id.

'^'The 1979 Supreme Court opinions concerning Columbus, and Dayton, Ohio, give

less weight to the condition of a school system at the time of trial if de jure segre-

gation existed in 1954 and had not been completely dismantled at the time of trial. See

text accompanying notes 149-55 infra.
"332 F. Supp. at 667-69.

''Id. at 668.

''Id. at 669.

"Id. at 670.

"Id. at 672-73.

"Id. at 673-74.

•7d. at 674.



1981] INTERDISTRICT BUSING 807

tion of the laws.*' In light of the actions taken by the board both

before and after Brown I, the trial court had no difficulty inferring
the necessary segregative intent and holding that the board, acting

as agent of the state of Indiana, was maintaining a de jure segre-
gated school system at the time of trial.*^ The decision upon the
issue of segregation was quickly rendered credible by its affirmation
in the Seventh Circuit Court of Appeals and the subsequent denial

of certiorari by the Supreme Court/'^ The remedy suggested in In-
dianapolis I by District Judge Dillin was the real source of con-
troversy: Proper desegregation of the Indianapolis public schools

would be best achieved by an interdistrict remedy."^

An interdistrict remedy had rarely been suggested or ordered
before 1971."^ District Judge Dillin, to test the efficacy of such relief,
established an interim order for immediately dismantling the dual

system within the Indianapolis district (IPS) and required the plain-

tiff to secure the joinder of outlying school districts as parties

defendant to better facilitate the shaping of an interdistrict

remedy."* The court's rationale was that desegregation within the
district itself just would not be effective — "in the long haul, it won't
work."*^ Because 98.5% of the black population of the county lived
within IPS,*^ the judge feared that desegregation of only those

schools would soon result in an undesirable racial balance of forty

percent minority pupils in the schools, leading to increased "white

flight."*' Therefore, combining outer, basically white, districts with

IPS would be the most effective remedial measure.
The basis for this preliminary decision was a piece of Indiana

legislation passed in 1968, which prevented the growth of the IPS
district into predominantly white residential areas. The General

"/d. at 656. The Justice Department is empowered to bring an action under the

Civil Rights Act of 1964 in school desegregation cases. 42 U.S.C. § 2000c-6(a), (b) (1976).

"'332 F. Supp. at 677-78.

"'See United States v. Board of School Comm'rs, 474 F.2d 81, 88 (7th Cir.), cert,

denied, 413 U.S. 920 (1973). See generally Marsh, The Indianapolis Experience: The

Anatomy of a Desegregation Case, 9 IND. L. Rev. 897, 932-33 (1976).
"332 F. Supp. 680-81.

"^An interdistrict remedy had been ordered the year before in Arkansas when a

white district was forced to annex a smaller black district because the boundaries had

been drawn with the intent to segregate. Haney v. County Bd. of Educ, 429 F.2d 364

(8th Cir. 1970).

""332 F. Supp. at 679-81.

"7d. at 678.

"7d. at 663.

°'M at 676. Judge Dillin believed that a 40% tipping factor would create an iden-
tifiably black district rather than just a dual system. Id.



808 INDIANA LAW REVIEW [Vol. 14:799

Assembly's action, informally entitled "Uni-Gov,"^" allowed govern-

mental reorganization in Indiana counties having first-class cities.''

Indianapolis, being the state's only first-class city, was consolidated
with most of the other civil governments in Marion County'^ in
order to have a larger pool of resources for metropolitan planning

and problem-solving.'^ In Indiana, the boundaries of any school

system were traditionally and statutorily coterminous with any an-
nexations to the civil city.'^ However, two weeks before Uni-Gov
was approved, the legislature repealed the part of the statute pro-
viding for the expansion of school district lines in first-class cities."

Thus, IPS remained frozen with the old city boundaries and could

not expand to include those outer districts which were, by 1968,
becoming identifiably white."^ The principal controversy after the
Supreme Court refused to hear Indianapolis I was the legality of the
interdistrict remedy which was necessary to overcome the impact of
Uni-Gov.

Indianapolis IV^ and Indianapolis IIF^ included the outlying

school districts within and without Marion County as added defend-

ants. The district court confirmed its choice of remedy by finding
that an Indianapolis-only plan would be unsatisfactory.'^ Further,

although the outlying districts had every right to resist school

reorganization into one metropolitan system, they were nevertheless

required to comply with an interdistrict remedy because the frozen
IPS boundary lines made desegregation within the district virtually
impossible.*" District Judge Dillin then granted interim relief from

busing blacks out of IPS in order to afford the legislature time to

^Consolidated First-Class Cities and Counties Act, ch. 173. 1969 Ind. Acts 357

(codified at Ind. Code §§ 18-4-11 to -5-4 (Supp. 1980)).

"Dortch V. Lugar, 255 Ind. 545, 560, 266 N.E.2d 25, 35 (1971). In this case, the In-

diana Supreme Court upheld the constitutionality of the Act. See generally 47 Ind.

L.J. 101 (1971).

''^Beech Grove, Lawrence and Speedway were officially excluded for most pur-

poses except for the right to vote in Indianapolis elections. Indianapolis I, 332 F. Supp.

at 676 n.93.

"See 47 Ind. L.J. 101, 102 (1971).

''Act of Mar. 9, 1931, ch. 94, § 1, 1931 Ind. Acts 291.

"Ind. Code §§ 20-3-14-1 to 11 (1976). In these sections, Act of Mar. 6, 1961, ch.

186, 1961 Ind. Acts 101 was amended by Act of Feb. 25, 1969, ch. 52, 1969 Ind. Acts 57.

'"See 332 F. Supp. at 663.

"368 F. Supp. 1191 (S.D. Ind. 1973).

'"368 F. Supp. 1223 (S.D. Ind. 1973), rev'd in part, aff'd in part, and remanded, 503

F.2d 68 (7th Cir. 1974), cert, denied. 421 U.S. 929 (1975).

'"Indianapolis II, 368 F. Supp. at 1198.

""Id. at 1203-04. By 1973, the date of Indianapolis II and ///, IPS was already

41.1% black, indicating to Judge Dillin that perhaps the tipping point in the city was

much lower than he had originally believed. Id. at 1198.



1981] INTERDISTRICT BUSING 809

formulate some kind of permanent plan to effect school desegrega-
tion in Marion County/' On appeal, the Seventh Circuit Court of Ap-
peals reversed the lower court's decision with respect to districts

outside Uni-Gov boundaries and remanded the rest of the case*^ for
reconsideration in light of the recent Supreme Court decision in
Milliken v. Bradley.^^

In Milliken, the Court reversed an interdistrict metropolitan

remedy in Detroit and demanded that an interdistrict constitutional
violation be shown before such relief could be granted. "Specifically,
it must be shown that racially discriminatory acts of the state or
local school districts, or of a single school district have been a

substantial cause of interdistrict segregation. . . . [W]ithout an inter-

district violation and interdistrict effect, there is no constitutional

wrong calling for an interdistrict remedy."*^ Therefore, on remand of
the Indianapolis case, the district court was required to find not only
segregative effect but also an actual constitutional violation causing

that condition.

In the 1975 district court decision in Indianapolis IV,^^ the Hous-

ing Authority of the City of Indianapolis (HACI) was an added

defendant. The agency had been joined because all low-rent housing

projects built under its auspices were within the IPS boundaries

although it had the authority to build within five miles of the city

limits.'" Further evidence was heard on "the effect ... of housing

and zoning laws, rules, regulations and customs in Marion County,

Indiana and its various political subdivisions upon the de jure

segregation of IPS."'^ Ultimately, Judge Dillin held that a limited in-

terdistrict remedy'* was warranted by the additional evidence and

"'Id. at 1208. The court outlined possible alternatives available to the legislature
in its Indianapolis III supplemental memorandum. Indianapolis III, 368 F. Supp. 1223.

«'503 F.2d 68, 86 (7th Cir. 1974).

''M18 U.S. 717 (1974).

"'Id. at 745.

«H19 F. Supp. 180 (S.D. Ind. 1975).

"'Id. at 182.

"M This evidence was heard in accordance with Justice Stewart's concurring opin-
ion in Milliken:

Were it to be shown, for example, that state officials had contributed to the
separation of the races by drawing or redrawing school district lines. . . . [by]

transfer of school units between districts, ... or by purposeful, racially
discriminatory use of state housing or zoning laws, then a decree calling for

transfer of pupils across district lines or for restructuring of district lines

might well be appropriate.

418 U.S. at 755.

""Indianapolis IV, 419 F. Supp. at 183. The remedy was limited to transferring
black students out of IPS. The Indiana legislature by that time had passed a law that
accommodated such a remedy with the transferor district paying the transferee
districts for tuition. Ind. Code §§ 20-8.1-6.5-1 to 10 (1976).



810 INDIANA LAW REVIEW [Vol. 14:799

the "violation" of Uni-Gov, and he enjoined HACI from locating any
more housing within IPS boundaries.*^ This decision satisfied the
court of appeals. The Supreme Court, however, caught in a revolu-
tion of the law of equal protection, vacated and remanded the case
for reconsideration in light of two then recent decisions concerning

discriminatory intent.^"

IV. The Indianapolis Remedy and Segregative Intent

The Supreme Court referred the lower courts to the equal pro-
tection cases of Village of Arlington Heights v. Metropolitan Hous-

ing Development Corp.^^ and Washington v. Davis.^^ Neither of these

cases deal with school desegregation,'^ but both were important with

respect to the determination of segregative intent.

In view of Arlington Heights and Davis, the discriminatory in-

tent in IPS's practices and the disproportionate impact of Uni-Gov

and HACI actions could not support an interdistrict remedy without
a showing of a purposeful interdistrict violation.'* In Indianapolis

V,'^ therefore, the district court was required to look for segregative

"'419 F. Supp. at 183, 186.

The evidence in the record, as taken in all hearings, clearly shows that

the suburban Marion County units of government, including the added

defendant school corporations, have consistently resisted the movement of
black citizens or black pupils into their territory. They have resisted school

consolidation, they resisted civil annexation so long as civil annexation car-

ried school annexation with it, they ceased resisting civil annexation only

when the Uni-Gov Act made it clear that the schools would not be involved.
Suburban Marion County has resisted the erection of public housing projects

outside IPS territory, suburban Marion County officials have refused to

cooperate with HUD on the location of such projects, and the customs and
usages of both the officials and inhabitants of such areas has been to

discourage blacks from seeking to purchase or rent homes therein ....

/(/. at 182-83.

'"'Ivdiavapolis IV, 541 F.2d 1211 (7th Cir. 1976), vacated and remanded sub now.
Bowen v. United States, 429 U.S. 1068 (1977). cert, denied, 439 U.S. 824 (1978). Circuit
Judge Tone's dissent in the court of appeals opinion foreshadowed the subsequent

Supreme Court decision. .541 F.2d at 1224.
"429 U.S. 252 (1977).

'-426 U.S. 229 (1976).

^Arlington Heights involved a claim of residential zoning discrimination. In

Washington v. Davis, the plaintiffs alleged discrimination in the hiring practices of the

Washington. D.C. metropolitan police department.
" The school desegregation cases have . . . adhered to the basic equal

protection principle (hat the invidious quality of a law claimed to be racially

discriminatory must ultimately be traced to a racially discriminatory pur-

pose. That there are both predominantly black and predominantly white

schools in a community is not alone violative of the Equal Protection Clause.

Washington v. Davis, 426 U.S. at 240 (1976).
'•456 F. Supp. 183 (S.D. Ind. 1978).



1981] INTERDISTRICT BUSING 811

intent in those acts which tended to prevent effective metropolitan

desegregation. The court did not have to find that segregative in-
tent was the sole motivation for the acts — the existence of any
segregative intent would support an interdistrict remedy."*'

The court's burden was further lessened because there was no
need to find that the outer districts had intentionally contributed to

or caused the IPS school segregation. This requirement, established

by the Court in Milliken,^'' was obviated by the Indiana General
Assembly which had provided an interdistrict transfer remedy that
could be imposed without culpability of the transferee districts."*

Thus, Indianapolis V dealt exclusively with finding segregative in-
tent in Uni-Gov and HACI actions.

There were neither facially discriminatory statutes nor express

statements of racial purpose present so the district court examined

Uni-Gov and HACI using methods by which intent could be inferred.
The court began its inquiry by examining the disproportionate im-

pact of both forces.*" It reasoned:

"The impact of the official action — whether it 'bears more
heavily on one race than another,' . . . —may provide an im-
portant starting point. Sometimes a clear pattern, unex-

plainable on grounds other than race, emerges from the effect

of the state action even when the governing legislation ap-
pears neutral on its face. . . ."""'

After looking at impact, the trial court, using criteria suggested

in Arlington Heights, examined the passage of Uni-Gov for evidence

of a segregative purpose."" This standard generally guides a court in

^ [A plaintiff is not required] to prove that the challenged action rested

solely on racially discriminatory purposes. Rarely can it be said that a legis-

lature or administrative body operating under a broad mandate made a deci-
sion motivated solely by a single concern, or even that a particular purpose

was the "dominant" or "primary" one.

Village of Arlington Heights v. Metropolitan Dev. Corp., 429 U.S. at 265 (footnote

omitted).

"Milliken v. Bradley, 418 U.S. at 745. In Milliken, the Court stated that a con-

stitutional violation could be proven either by discriminatory acts in one district caus-

ing segregation in an adjacent district or by racially identifiable district lines drawn by
the state. Id.

^^Indianapolis V, 456 F. Supp. at 190-91. The statute provides that pupil transfers

can be effectuated if: (1) the transferor corporation has violated equal protection, (2) a

unitary system cannot be implemented within the offending corporation, and (3) the

court is compelled to order such transfers under the fourteenth amendment. Ind. Code

§ 20-8.1-6.5-1 (1976).

"456 F. Supp. at 185.

""/d. (quoting 429 U.S. at 266).

""The Arlington Heights case suggests that, besides impact, five other factors

could be relevant to inferring intent: (1) the historical background of the decision,



812 INDIANA LAW REVIEW [Vol. 14:799

considering the "totality of the relevant facts"'"^ from which it can

glean an inference of intent. In the instance of Uni-Gov, there was
convincing evidence that segregation had been a factor in the deci-

sion to freeze the IPS boundaries. First, the court recounted the

history of white-black relations in Indiana as well as that of In-

dianapolis' dual school system.'"^ It then considered the sequence of

events leading to the adoption of the Uni-Gov act and emphasized

that the partial repeal of the statute allowing expansion of school

boundaries occurred just prior to passage of Uni-Gov.'"^ Moreover,

the court heard testimony to the effect that the act would not have

been passed if IPS were to grow with the city.'"'' Next, District
Judge Dillin examined substantive departures from prior policy. The
legislature had been eliminating remnants of racially discriminatory

laws since 1949 when it appeared to reverse that progress by
repealing the pertinent section of the annexation statute. '"*' From
this pattern of behavior, the district court found that Uni-Gov was

passed, at least in part, with the purpose of maintaining interdistrict

school segregation.'"^

The court found segregative intent in the actions of HACI in a
different manner. Using a test employed by the Sixth Circuit'"* and

other courts of appeals, District Judge Dillin held that a presump-

tion of segregative intent was raised because the "natural, probable

and foreseeable result of erecting public housing projects wholly

within IPS territory would be to concentrate poor blacks in such

projects and thus to increase or perpetuate public school segrega-

tion within IPS."""* HACI failed to affirmatively establish that its
policies were racially neutral, and it too was found to have commit-

ted an interdistrict constitutional violation.""

To remedy these intentional violations, the district court enjoiiied
HACI from further building within IPS and reinstated its 1975
order to transfer a certain percentage of blacks from IPS to the

(2) any "specific sequence of events leading up to the challenged decision," (3) substan-

tive departures in policy, (4) departures from usual procedure, and (5) any administra-

tive or legislative history. 429 U.S. at 267-68.

'"'Washington v. Davis, 426 U.S. at 242.

'"456 F. Supp. at 186-87.

'"7d. at 187.

'"^d. This testimony was given by then-Mayor Richard Lugar.

'°7d. at 188.

'°Vd

'"^See NAACP v. Lansing Bd. of Educ, 559 F.2d 1042 (6th Cir.), cert, denied, 434
U.S. 997 (1977); Oliver v. Michigan State Bd. of Educ. 508 F.2d 178 (6th Cir. 1974), cert,

denied, 421 U.S. 963 (1975).

""456 F. Supp. at 189.

"7d.



1981] INTERDISTRICT BUSING 813

outlying districts within Uni-Gov's boundaries (the county lines).'"

The court determined the number of pupils to be transferred by
calculating approximately how many children would have gone to
schools in outlying districts absent the HACI violation."^

Except with respect to two districts within Uni-Gov limits,'" the
Seventh Circuit Court of Appeals affirmed the lower court's order"^

by holding that the interdistrict remedy was justified because of the
violations by both Uni-Gov and HACI."'' The court also stated that
the form of the order was proper in light of the "specific incre-

mental effects" of HACI's actions.'"* The court of appeals emphasized
that even though there would be some difficulty determining the ex-
act segregative effects attributable to Uni-Gov alone, a remedy
could have been ordered commensurate with the impact."^ The opin-
ion further indicated that the lower court had the power, if

necessary, to transfer students from outlying districts into IPS

because the state action had had interdistrict effects."* Whether
these measures will be implemented is difficult to determine.

Nonetheless, the district court's order was deemed effective on Oc-
tober 6, 1980, when the Supreme Court denied certiorari.""

V. SCHOOL Desegregation and Segregative Intent

A. Generally

The various dispositions of the Indianapolis case demonstrate
the difficulty inherent in finding segregative intent in desegregation

cases. In accordance with Keyes, segregative intent must be found
in order to establish a constitutional violation.'^" Courts have had little

difficulty discovering segregative intent in the South because of

'"Id. at 191.

'"Id. at 190. This approach had recently been approved by the Supreme Court in

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977). The Court remanded the case to

the district court to limit the desegregation remedy to effect the school distribution

that would have been present without the constitutional violation. Id. at 420-21.

"^The Beech Grove and Speedway judgments were vacated and remanded to

determine whether HACI had jurisdiction to operate in those locales. United States v.
Board of School Comm'rs, 637 F.2d 1101, 1116 (7th Cir.). cert, denied, 101 S. Ct. 114,

115 (1980).

"Yd. at 1117.

"7d. at 1111.

'"Id. at 1112-14.

'"Id. at 1113.

'"Id. at 1115.

'"Bowen v. Buckley, 101 S. Ct. 114 (1980).

'^°See text accompanying notes 21 & 22 supra.



814 INDIANA LAW REVIEW [Vol. 14:799

numerous facially discriminatory actions.'^' To date, however, the
Court has not explained how lower courts in northern cases are to
find segregative intent absent such actions. Instead, the Court

refers them to non-school cases such as Arlington Heights^'^ (hous-
ing/zoning) and Washington v. Davis^'^^ (employment). Thus, lower

tribunals are left to their own devices in finding purposeful segrega-
tion in school cases.

Another reason courts have experienced difficulty finding

segregative intent in school cases is that the case law is still evolv-

ing. The body of decisions regarding this requirement is growing
but is by no means creating a logical pattern.

1. Methods of Finding Intent. — Courts and commentators
generally discern two separate approaches for finding segregative

intent: the subjective method and the objective method. However,
these labels are actually misnomers. The categories are better named
for the type of evidence used by the courts in finding segregative in-

tent: direct evidence and indirect evidence.

The purported subjective approach for finding discriminatory in-
tent involves the examination of the "subjective" motivation of the

officials promulgating the actions. '^^ Intent is established under this

theory by means of direct evidence of discriminatory motives. Such
evidence includes facially discriminatory statutes and overt expres-

sions of racial motivation made by the persons involved in the
decision-making.'^^ However, it is highly unlikely that there actually

is a test for subjective motivation; segregative intent is subjective

motivation. Facially segregative actions are automatically un-

constitutional because segregation is not a proper legislative goal.

When the motivation is not readily apparent, however, other factors
have to be entered into evidence from which an actor's subjective

motivation, or intent, can be inferred.'^** Courts then use indirect in-

dicia of intent which can be used as evidence of motivation.

'"See generally text accompanying notes 9 & 10 supra.
'^'429 U.S. 252 (1977).

'^'426 U.S. 229 (1976).

"*See Comment, Proof of Racially Discriminatory Purpose under the Equal Pro-

tection Clause: Washington v. Davis, Arlington Heights, Mt. Healthy, and Williams-

burgh, 12 Harv. C.R.-C.L.L. Rev. 725, 733 (1977); Note, Reading the Mind of the

School Board: Segregative Intent and the De Facto/De Jure Distinction, 86 Yale L.J.
317, 321 (1976).

'^'Morgan v. Kerrigan, 509 F.2d 580, 588 (1st Cir. 1974), cert, denied, 421 U.S. 963

(1975) (pattern of segregative action included "statements of express intention not to

counter anti-integration sentiment").

'™One court has expressly stated this concept. "[W]e treat the District Court's

finding of a lack of racial motivation as irrelevant in the face of his findings of foresee

able effect [based on objective evidence]." Hart v. Community School Bd. of Educ, 512

F.2d 37, 51 (2d Cir. 1975).



1981] INTERDISTRICT BUSING 815

Indirect evidence of segregative intent includes such acts as gerry-

mandered boundary lines and free transfer systems. These acts can be

motivated by legitimate objective educational reasons as well as by

covert segregative intent, hence the term "objective" approach.

However, when direct evidence of discrimination is not available,
courts must rely on this indirect evidence to infer segregative in-

tent. Thus, it is apparent that courts do not rely on subjective or ob-

jective approaches to find segregative intent. Rather, they rely upon

the two types of evidence these approaches are based on.

Finding intent from indirect evidence is the most commonly used
approach in northern desegregation cases. '^' This method has given

rise to several so-called "objective" tests and is, for that reason, the

more successful procedure for finding segregative purpose in widely

differing fact situations. The analysis using indirect evidence has

been called "objective intent,"'^* "institutional intent,"'^' the "fore-

seeability test,"'*" "cumulative violation,"'^' "the Omaha presump-
tion,"'^^ and even "totality of the facts" test.'^^ Regardless of the

name appended to it, the approach is essentially the same: The court
looks at what was done, how it was done, and who was affected.

One of the indirect analyses that has been used successfully is
whether segregation or maintenance of existing segregation was a
natural, foreseeable result of the official action. '^^ Another of the
more comprehensive indirect analyses is for a court to look at pat-
terns of official conduct, such as drawing school attendance lines

that maintain or increase segregation'^^ or planning school construc-

tion.'^^ Such patterns are not mutually exclusive, and many practices
that tend to segregate are often combined and viewed as a whole.

For such a case, the decision in Washington v. Davis^^'' suggests that
"an invidious discriminatory purpose may often be inferred from the

'"See, e.g., cases cited notes 134-36 & 141 infra.
'''See Note, supra note 124, at 328.

•"/d. at 334.

""See Comment, supra note 124, at 732.
'^'M at 734.

'''Id. at 735.

'"Note, Finding Intent in School Segregation Constitutional Violations, 28 Case
W. Res. L. Rev. 119, 162 (1977).

'^'NAACP V. Lansing Bd. of Educ, 559 F.2d 1042, 1047 (6th Cir.), cert, denied, 434
U.S. 997 (1977); United States v. School Dist., 521 F.2d 530, 535 (8th Cir.), cert, denied,

423 U.S. 946 (1975); Hart v. Community School Bd. of Educ, N.Y. School Dist. #21, 512
F.2d 37, 50 (2d Cir. 1975); Morgan v. Kerrigan, 509 F.2d 580, 588 (1st Cir. 1974), cert,
denied, 421 U.S. 963 (1975).

"'Booker v. Special School Dist. No. 1, Minneapolis, 351 F. Supp. 799, 808 (D.

Minn. 1972).

""Morgan v. Kerrigan, 509 F.2d at 592-93.
'^'426 U.S. 229 (1976).



816 INDIANA LAW REVIEW [Vol. 14:799

totality of the relevant facts.""* Similarly, a court can find that a

school board was motivated, at least in part, by a segregative pur-
pose by looking for "institutional intent." This route is very much
like the one used in Arlington Heights^^"^ and Indianapolis V except
that the court looks solely at the acts of the school board and at

whether a less segregative alternative is available absent a strong
educational justification for the choice made.'^" The various tests
also subsume a method known as "the Omaha presumption" in
which a presumption of intent arises when official acts or omissions
have created a foreseeably segregative condition. The presumption
may only be rebutted if the defendant board can establish that dis-
criminatory intent was not a motivating factor.'^' Though this
method was used in Indianapolis V for the HACI offense, the
Supreme Court questioned the validity of this presumption in
1979.'^^ It appears, therefore, that the prior success of this test is

probably attributable to the weight of the indirect evidence.

Although each test has distinctive features, they are virtually

interchangeable and often not clearly distinguishable. Rather than

searching for the "best" method or waiting for the Supreme Court
to select one, courts have required plaintiffs to bring forth as much
evidence as possible that appears to indicate segregation. The
courts have then judged that evidence by whatever method suits
their tastes or as equitably as possible. Generally, school boards

which have engaged in a great number of suspect acts will be re-
quired to dismantle the effects of those acts. Fewer and unconnected
actions will usually not require a remedy because they are often ex-
plainable by de facto conditions. Whatever approach is used, the
Supreme Court has usually demonstrated its amenability to the ap-
proach by denying certiorari. '^^

"7d. at 242.

"''See note 101 supra.

""See Note, supra note 124, at 334-35.

•"United States v. School Dist., 521 F.2d 530, 535-36 (8th Cir.). cert, denied, 423

U.S. 946 (1975); Oliver v. Michigan State Bd. of Educ, 508 F.2d 178, 182 (6th Cir. 1974),

cert, denied, 421 U.S. 963 (1975). See generally Note, Intent to Segregate: The Omaha
Presumption, 44 Geo. Wash. L. Rev. 775 (1976); Comment, supra note 124, at 735.

'"Referring to the Sixth Circuit's emphasis upon Oliver v. Michigan State Bd. of

Educ, the Court said:
We have never held that as a general proposition the foreseeability of segre-
gative consequences makes out a prima facie case of purposeful racial dis-

crimination and shifts the burden of producing evidence to the defendants if

they are to escape judgment; and even more clearly there is no warrant in

our cases for holding that such foreseeability routinely shifts the burden of

persuasion to the defendants.

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 536 n.9 (1979).

'"See cases cited notes 125, 134 & 171.



1981] INTERDISTRICT BUSING 817

2. Recent Trends in the Supreme Court. —The Court's tacit ap-
proval speaks well of the lower courts' treatment of such a sensitive

issue, but it also indicates wise restraint from establishing any one

standard as the rule. Because of the great disparity in the history,

school organization, disputed official acts, and other facts relevant to

each case, a single rule would be virtually impossible to formulate.

The Court's restraint is even more apparent when one considers
some of the decisions from the Fifth Circuit. Because it is situated in

the South, this particular court of appeals has had to deal with

numerous school desegregation cases. '^'' The constitutional issue, as

that court views it, does not necessarily depend upon the de jure/de

facto distinction drawn by the Supreme Court in Keyes. The court

in Cisneros v. Corpus Christi Independent School DistricV^^ stated

that "while [discriminatory motive and purpose] may reinforce a find-
ing of effective segregation, [they] are not necessary ingredients of

constitutional violations in the field of public education. We . . . hold
that the racial and ethnic segregation that exists ... is unconstitu-

tional—not de facto, nor de jure, but unconstitutional."'^*'

The Keyes decision, requiring intent, would seem to preclude
reliance on Cisneros. However, the Court declined to hear Cisneros
four days after the decision in Keyes was handed down. Commen-
tators"^ and at least two Justices'''* have suggested either that the

de jure/de facto distinction has no merit or that de facto segregation

should be dismantled also. Generally, their arguments are the same:
Segregation is just as harmful whether it is de facto or de jure.

Although the Supreme Court has never espoused the Fifth Cir-
cuit's approach, two recent cases have diminished the significance of
the de jure/de facto distinction to some extent. In Columbus Board

of Education v. Penick^^^ and Dayton Board of Education v. Brink-
man {Dayton II),^^° the Court in essence ruled that if racially iden-
tifiable schools existed in 1954 and still exist at time of trial, the

school board has failed in its affirmative duty to dismantle the dual

'"See generally F. Read & L. McGouGH, Let Them Be Judged: The Judicial In-
tegration OF THE Deep South xii, 565-72 (1978).

'^'467 F.2d 142 (5th Cir. 1972), cert, denied, 413 U.S. 920 (1973).

'''Id. at 149.

'"See Goodman, De Facto School Segregation: A Constitutional and Empirical
Analysis, 60 Cal. L. Rev. 275 (1972); 40 N.Y.U.L. Rev., supra note 10: Note, De Facto
School Segregation and the "State Action" Requirement: A Suggested New Ap-
proach, 48 IND. L.J. 304 (1973).

'"In Keyes, both Justices Powell and Douglas decried the use of the distinction

because it did not ameliorate segregation caused by a neighborhood school policy

where there was private housing discrimination. 413 U.S. at 214-53.
'"443 U.S. 449 (1979).

"°443 U.S. 526 (1979).



818 INDIANA LAW REVIEW [Vol. 14:799

system, and an appropriate remedy must be imposed.'^' The deter-
mination of present intent in the Columbus and Dayton districts was
based upon the foreseeable consequences and impact of official ac-

tions which showed that the boards were perpetuating past
segregative practices rather than eliminating them.'^^ This method
of finding present intent was approved as early as 1973, in Keyes,
when the Court stated that:

a connection between past segregative acts and present
segregation may be present even when not apparent .... In-
tentional school segregation in the past may have been a fac-
tor in creating a natural environment for the growth of fur-

ther segregation. Thus, if respondent School Board cannot

disprove segregative intent, it can rebut the prima facie case

only by showing that its past segregative acts did not create

or contribute to the current segregated condition . . . .'^^

The approach in Columbus and Dayton II is best described in a re-
cent review:

The approach to . . . school desegregation that the Su-
preme Court endorses . . . has four elements: first, the exist-
ence of identifiably black schools in the school system in

1954[;] . . . [sjecond, a legal determination that the existence

of such schools in 1954 . . . [created] a continuing constitu-

tional duty to eliminate identifiably black schools[;] . . .

[t]hird, an intensive and detailed examination of school

system actions since 1954 in order to determine whether the

school system has taken all feasible actions to eliminate the

identifiably black schools[;] . . . [f]ourth, the conclusion that

the only way to eliminate the identifiably black character of
some schools is to modify the neighborhood school policy
through appropriate racial transfers ... so that no school
has a distinctly black enrollment . . . .'^^

The Court's current view, then, is that when a district combines
the vestiges of a 1954 de jure situation with actions which have the

foreseeable consequence of disparate racial impact, the system has

not been effectively dismantled. The Court may have "accepted" any
mode of finding intent so long as a lower court's decision was not
clearly erroneous, but its focus since Brown I has been primarily

'^'443 U.S. at 461; 443 U.S. at 541.

'^''443 U.S. at 464: 443 U.S. at 536 n.9.

'"413 U.S. at 211.

"'^Kitch, The Return of Color-Consciousness to the Constitution: Weber, Dayton,

and Columbus, 1979 Sup. Ct. Rev. 1, 2-3 (1980).



1981] INTERDISTRICT BUSING 819

upon a school board's affirmative duty to dismantle a dual system

rather than the board's purpose in maintaining it.'^^

It is with reference to this attitude that the Indianapolis inter-

district remedy can be understood. Circuit Judge Tone's 1979 dis-
sent in Indianapolis V is probably more correct than the majority's
rationale when he states that "today's decision cannot, I think, be
reconciled with the distinction between de jure and de facto segre-

gation."'^* The Court's current trend away from the importance of
the de jure/de facto distinction explains part of the reason why the
Indianapolis remedy was not overturned. The Court's disposition of
the Indianapolis case is further understood when one considers
other interdistrict cases.

B. Interdistrict Remedies

1. Interdistrict Remedy and Segregative Intent. —Milliken v.
Bradley^^^ is the first and essentially the only opinion by the

Supreme Court on the interdistrict remedy and public schools.
According to Milliken, plaintiffs must show an interdistrict violation
with an interdistrict effect in order to obtain such a remedy.'^*

Typically, intentional acts of an adjacent school district or racially

drawn district lines constitute such a violation and elicit the
necessary effect.'*® In Milliken, the Court could find neither type of

violation.'®" Detroit, therefore, had to dismantle its own de jure
system, but as a district it remained identifiably black.'®'

Many courts have tried to avoid this result, especially in the
North where urban areas have a great concentration of minorities.
Their cure for the problem has often been to initially suggest, and

even order, interdistrict relief as soon as they find that the "city"

district is operating a dual system. The interdistrict actions found to
support the remedy generally fall into one, if not both, of the
Milliken categories — district actions or legislative redistricting.

'"Keyes v. School Dist. No. 1, Denver, 413 U.S. at 220-21 (Powell, J., concurring in

part and dissenting in part); McDaniel v. Barresi, 402 U.S. 39, 41 (1971); Swann v.
Charlotte-Mecklenburg Bd. of Educ, 402 U.S. 1. 15 (1971); Green v. County School Bd.,

391 U.S. 430, 437-38 (1968) ("School Boards such as the respondent then [1954]

operating state-compelled dual systems were nevertheless clearly charged with the af-

firmative duty to take whatever steps might be necessary to convert to a unitary

system in which racial discrimination would be eliminated root and branch.").

'"Indianapolis V, 637 F.2d at 1130.

'"418 U.S. 717 (1974).

'"Id. at 744-45.

"*Id. at 745. See text accompanying note 84 supra.
'•»418 U.S. at 748.

"'Id. at 759.



820 INDIANA LAW REVIEW [Vol. 14:799

There is also the occasional anomaly, as in Indianapolis, in which
housing is deemed to create an interdistrict effect. However, for a
court to order any interdistrict remedy, it must find the inter-
district act violative. That is, the act must be accompanied by
segregative intent.

Segregative intent, as well as an interdistrict act, were missing
in Milliken. As in the intradistrict cases, however, the Court failed
to elucidate the standards a court is to use to determine segregative

intent. Thus, courts are left with the same direct and indirect
methods used in finding intradistrict violations. In some cases, these
methods are appropriate; in others, their use seems less reliable, if
they are actually used at all.

2. Interdistrict Violations by School Districts.— The easiest in-
terdistrict violations to ascertain are those that are blatantly, if not

expressly, segregative in purpose. The interdistrict order in Louis-
ville'^^ was designed to remedy just such practices. The Louisville
district was one of three school districts in Jefferson County, two of
which were operating state-mandated dual systems at the time of
trial.'*' Before Brown I, the two latter districts had actively engaged
in segregative practices by disregarding boundary lines and

transferring blacks into an inner city school for blacks because the

county system had no such school.'*^ The lines were also ignored
when one high school, belonging to the Louisville district, was built
within another district's system, and white students from both

districts attended it.'®^ In an action for interdistrict relief, the court

held that prior disregard for district lines "for the purpose and with

the actual effect of segregating school children among the public
schools of the county on the basis of race" required an interdistrict

remedy.'**

School boards have been involved in other more ingenious

methods of segregation, some of which did not require courts to infer

intent. In Lee v. Macon County Board of Education^^^ and Wright v.
Council of Emporia,^^^ boards attempted to secede from county-wide

'"^Newburg Area Council. Inc. v. Board of Educ, 510 F.2d 1358 (6th Cir. 1974),

cert, denied, 421 U.S. 931 (1975).

'"510 F.2d at 1359-60.

"Vd. at 1360.

""Id.

'"'Id. at 1361. The court also believed the remedy appropriate because the school

boundaries and city limits of Louisville were not coterminous, and the presence of

almost 10,000 children, mostly white, between the two lines aggravated the problem.

Id.

""'448 F.2d 746 (5th Cir. 1971).

"•407 U.S. 451 (1972).

I



1981] INTERDISTRICT BUSING 821

desegregation plans. In each case, the court focused upon the

adverse effects of the action which would ultimately have created an

interdistrict violation if allowed to attain fruition.'"*' As stated by the
court in Lee, "The city cannot secede from the county where the ef-
fect—to say nothing of the purpose — of the secession has a substan-
tial adverse effect on the desegregation of the county school

district."'^" The violation was actually prevented in both of these
cases, but their precedential value is in their analyses. The courts'
relative indifference to the element of intent in these cases explains,

to a certain extent, the acceptability of decisions in which legisla-

tures were involved. Courts have often looked to the segregative effect

as of utmost importance, with segregative purpose as a secondary con-

sideration.

3. Interdistrict Violations by State Legislatures. — Several in-
terdistrict violations have been found and corrected within the se-

cond Milliken category in which the state legislature or the state

school board, rather than the local school district, has promulgated a

violative policy or statute. Violations of this nature usually involve

the drawing or redrawing of district lines, but the manner of finding
intent sometimes differs.

The Eighth Circuit has been particularly active in correcting
segregation flowing from legislative actions. In Haney v. County
Board of Education,

^''^
a 1970 Arkansas case, the Eighth Circuit

Court of Appeals ordered the annexation of a black school district to

a larger, more populous, white district in order to achieve a "unitary
non-racial school system."''^ A prior opinion in the litigation justified
the remedy in this fashion: Because the state of Arkansas had re-
quired separate schools for blacks and whites,'" school district lines

drawn for school reorganization had racial contours and were
violative as a matter of law because they were a reflection of that
earlier policy.

'^^

Five years later, in United States v. Missouri,^''^ the Eighth Cir-

cuit again ordered annexation of a racially identifiable school

district.'^" The district in question had been separated from the

'^^48 F.2d at 752; 407 U.S. at 462.

""448 F.2d at 752.

'"429 F.2d 364 (8th Cir. 1970).

"7d. at 369.

'"Haney v. County Bd. of Educ, 410 F.2d 920, 923-24 (8th Cir. 1969).

"Yd. at 926. The school districts were not required to be distinctly separate, "[b]ut

the fact that the various reorganized districts in Sevier County reflect a bi-racial

system of education by district lines must be accepted as more than mere coincidence."

Id. at 924.

"'515 F.2d 1365 (8th Cir.), cert, denied, 423 U.S. 951 (1975).

"«515 F.2d at 1373.



822 INDIANA LAW REVIEW [Vol. 14:799

other adjacent districts in 1937 and had been excluded ever since

from reorganization plans formulated by the county and state.'" The
court ordered its annexation with two adjoining districts on the

basis of intent as found in Keyes, and later in Columbus and Dayton
11:'^^ "Intentional school segregation in the past may not be ignored
in assessing the impact of present inaction which has the effect of

maintaining segregation."'^^

Very recently, another Arkansas case was decided which involved

a fact situation similar to that in //awe?/ — district lines were drawn
as a reflection of the same statute. But in Morrilton School District
No. 32 V. United States,^^° rather than finding purpose as a matter of

law the court of appeals followed much the same reasoning as was
used in United States v. Missouri. It found that the impact of the

discriminatory statute was still being felt;'*' therefore, sufficient in-
tent was present to justify an interdistrict remedy to eliminate all
vestiges of state-imposed segregation.'*^

An interesting and distinctively northern case in which both the
school board and legislature created the need for an interdistrict

remedy is Evans v. Buchanan.^^^ That case dealt with the school
segregation situation within and without Wilmington, Delaware.

Delaware, at one time, had state-imposed segregation.'*^ Even
after Brown I, New Castle County schools were involved in a
transfer system across district lines'*^ which, as in Louisville,

established a certain amount of interdependence among the dis-
tricts. For many years, the only high school in the county that would
accept black students was in Wilmington itself. Consequently, cross-
district transportation of blacks was required.'*^ Also, the district
court in Evans found that various governmental authorities had con-
tributed to the racial disparity between the city and the rest of the

county,'*^ in much the same manner the district court in Indianapolis

"'Id. at 1370.

"'See text accompanying notes 149-55 supra.

»"515 F.2d at 1370.

''"606 F.2d 222 (8th Cir. 1979), cert, denied, 444 U.S. 1071 (1980).

'"606 F.2d at 225-26.

"'Id. at 228-29.

"'393 F. Supp. 428 (D. Del.), aff'd, 423 U.S. 963 (1975). The litigation began as one

of the companion cases in Brown I under the designation, Belton v. Gebhart, 32 Del.

Ch. 343, 87 A.2d 862 (1952). Because there have been so many reported opinions, this

Note will confine itself to the district court opinions which found the constitutional

violation to require interdistrict relief and which granted the remedy.

'"393 F. Supp. at 432.

"'Id. at 433.

"'Id.

"Ud. at 438. This action helped create a situation whereby 75% of the county's
black students attended school in Wilmington. Id. at 439.



1981] INTERDISTRICT BUSING 823

IV had found HACI actions segregative.'** These violations included
acts by the New Castle County Housing Authority'*' and discrimina-
tion in the private housing market sanctioned by state officials until
1968."° One of the more decisive factors in the Wilmington case,
however, was the passage of the Education Advancement Act of
1968.'" This Act provided for school reorganization throughout the

state with the exception of Wilmington. The Act also included fac-
tors to be considered when reorganizing but failed to include any
criterion for reorganization on the basis of race. Therefore, the court

held that the statute created a suspect racial classification"^ which

contributed to segregation by maintaining district lines on the basis

of race."^ ,

In addition to the segregative cross-district transactions, the

court inferred segregative intent from the impact of all the other

more "neutral" actions."^ On the basis of these violations, the court
declared pertinent provisions of the legislative act "nonconstitu-

tional""^ and, a year later, ordered the consolidation of most of the

county's school districts."^

From these representative cases, it is evident that determining
intent when considering an interdistrict remedy is a much less
strenuous task once intradistrict de jure segregation has been

found. A court's emphasis is upon the additional segregative impact
of the official actions rather than upon the purpose for which they

were formulated. Attributing such importance to impact is consis-
tent with the renewed Supreme Court attitude that the affirmative
duty to dismantle de jure segregation will not allow any hindrance

or inaction to stop its full fruition. The Indianapolis case came at the
right time and involved the right type of violation.

VI. Analysis of the Indianapolis Case

A. Non-Educational Violations

The Indianapolis litigation has one component present in few
other cases: the state actions which affected school desegregation

were only tangentially concerned with education.

'*'See note 87 supra and accompanying text.
'^'393 F. Supp. at 435.

"7d. at 434.

'"56 Del. Laws, ch. 292, § 6 (1968) (current version at Del. Code Ann. tit. 14, §§
1001 to 1005 (Supp. 1980)).

'^'393 F. Supp. at 442.

^'Id. at 445-46.

"7d. at 438, 442-43.

"7d. at 447.

"'Evans v. Buchanan, 416 F. Supp. 328, 353 (D. Dei. 1976).



824 INDIANA LAW REVIEW [Vol. 14:799

The two factors purporting to cause interdistrict segregation in
the schools — Uni-Gov and HACI — did not have the educational em-
phasis that school board actions or legislative redistricting have had.

The district court could have found a legitimate state purpose for
the creation of Uni-Gov and could have corrected the housing viola-

tion without taking affirmative action with respect to the schools.

Metropolitan reorganization and public housing can have a

distinct impact upon a school system, but their purposes are to af-

fect altogether different aspects of society. If there were a segre-

gative intent involved in these kinds of decisions, their cure would

eventually eliminate their respective constitutional violations as

well as school segregation. Cases have arisen which deal with these

kinds of state actions individually. One case has even demonstrated
that the issue of school desegregation does not alter the considera-

tion of such a state action on its own merits. '^^

In Higgins v. Board of Education, ^^^ the Sixth Circuit confronted

a situation much like the problem encountered with Uni-Gov. The
reasoning of this case could have been used to justify the propriety

of maintaining pre-existing school district boundaries within Uni-

Gov. The Michigan legislature passed a senate bill which changed
prior law by preventing the boundaries of a school district from ex-

panding with civil annexation in second-class cities. '^^ Certain

suburbs of Grand Rapids actively supported and partially financed
this bill which would affect only Grand Rapids and one other city.^°°
Although the question concerning an interdistrict remedy was
mooted by the fact that Grand Rapids was not operating a
segregated system, the court of appeals nevertheless determined

that there was no constitutional violation in the passage of the
senate bill.'^"' The bill was justified on the grounds that surburban
school districts would otherwise lose a substantial portion of their

tax bases because most of the areas annexed were industrial, and

the few children affected did not warrant such a loss.^"'
The propriety of the boundary problem created by Uni-Gov

could also have been justified with a more specialized test for intent.

A focus on legislative intent rather than segregative intent might
have garnered sufficient governmental justification to overcome the

"'See Higgins v. Board of Educ, 395 F. Supp. 444 (W.D. Mich. 1973), affd, 508

F.2d 779 (6th Cir. 1974).

"*395 F. Supp. 444 (W.D. Mich. 1973), affd, 508 F.2d 779 (6th Cir. 1974).

''"395 F. Supp. at 473. Senate Bill 1100 was modified to become Act 177 of Public

Acts of 1962 and is currently found at MiCH. CoMP. Laws § 380.401 (Supp. 1980-81)

where it differs in substance because of school reorganization.
^°°395 F. Supp. at 473.
'^'"508 F.2d 779, 797 (6th Cir. 1974).

'"^395 F. Supp. at 474.



1981] INTERDISTRICT BUSING 825

suspicion of an illicit discriminatory purpose/"'' Metropolitan

reorganization has importance on its own merit without regard to
its tangential effect upon schools.

The other anomaly in the Indianapolis case is the interdistrict

effect attributed to housing. Hills v. Gautreaux,^"* a 1976 Supreme
Court case, effectuated an interdistrict housing remedy for viola-
tions by the Chicago Housing Authority and the United States

Department of Housing and Urban Development (HUD). The offense
was entirely within Chicago's city limits, the only location where the
two agencies had selected sites for public housing^"'^ although they

had the power to operate within a three-mile radius from the city
limits.^"® The Court determined in Hills that the district court had

authority to force HUD to start selecting sites and assistance out-
side of Chicago, the power to do so already having been conferred

by law.^"^ Unlike the schools in Milliken,^°^ there would be much less
disturbance of local control because the agencies were not authorized

to seek locations within other incorporated areas.^"** No relief was
ordered for those people currently living at the discriminatorily

selected sites, but then, unlike the Indianapolis case, the issue of

school desegregation demanding immediate relief was not involved.
With HACI's violations, it would have been simple to stop at a hous-
ing remedy which would have effectuated school desegregation
sooner or later, and probably would have been less expensive for

the school board.^'" This consideration, as well as the arguably

legitimate state purpose for Uni-Gov, had to have created substan-

tial problems in justifying an interdistrict desegregation order. At
least one circuit court judge recognized this.

B. Dissension in the Indianapolis Case

When reading the 1980 Seventh Circuit opinion of Indianapolis
V, one wonders whether the majority and the dissent are speaking
of the same case. Circuit Judge Tone, whose research into the prob-
lem forced him to change his vote in Indianapolis IV "^ wrote three

'°^See Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitu-
tional Legislative Motive, 1971 Sup. Ct. Rev. 95, 131.

^'''425 U.S. 284 (1976).

'"'Id. at 286.

""Id. at 298 n.l4.

""Id. at 306.

'•"'418 U.S. 717 (1974).

'°M25 U.S. at 298-99 n.l4.

''"Comment, Housing Remedies in School Desegregation Cases: The View from
Indianapolis, 12 Harv. C.R.-C.L.L. Rev. 649, 687 (1977).

"'541 F.2d at 1224 n.* (Tone, J., dissenting).



826 INDIANA LAW REVIEW (Vol. 14:799

strong dissents based specifically on the failure to demonstrate

segregative purpose.^'^ His most recent dissent disputes the majority's

conclusion that the Uni-Gov act and HACI evinced the requisite in-
tent for supporting an interdistrict remedy.

Judge Tone did not view the Uni-Gov act as fulfilling the Arling-
ton Heights factors as they were used by the majority and the
district court. He found no historical background of the act itself
that showed segregative purpose.^'^ He also concluded that past re-
jections of proposed consolidation in Marion County were warranted

by financial reasons and the goal of local school district autonomy.^'^

He completed his repudiation of Uni-Gov's role in the controversy
by pointing out that the repeal of the statute, which had made
school boundaries coterminous with civil annexation, was un-
necessary because Uni-Gov was not an annexation by the city but
rather a governmental reorganization imposed by the state.^'^

As for HACI, Judge Tone minimized its actual effect by explain-
ing that its function in site selection was limited. Most of the loca-
tions were selected by a "turn-key" method, whereby a private
developer selects the site and turns the project over to the housing

authority after it is built. ^'^ The remaining sites were selected by a
mayoral task force.^'^ HACI's involvement was therefore de
minimus. Judge Tone thus bemoaned the majority's reliance upon
the disparate racial impact of a de facto situation, the only rationale

he perceived as actually supporting the decision.^'*

C. The Indianapolis Case—A Result-Oriented Decision?

Indianapolis V was a case whose time had come. Nine years had
been spent litigating essentially the same issue, the interdistrict
remedy. As a newly applicable Supreme Court opinion was handed
down, the case was returned to the district court. First, there was
Milliken v. Bradley."^ Then, there were Arlington Heights^^" and

'"Id. at 1224 (Tone, J., dissenting): 637 F.2d at 1119 (Tone, J., dissenting): 573 F.2d

at 415 (Tone, J., dissenting). Judge Tone's dissent in Indianapolis IV warned the court

of appeals of the deficiency in its decision because it did not include a finding of intent

as prescribed by Washington v. Davis, 426 U.S. 229 (1976). He further denounced the
majority's reliance upon a " 'racial impact' " theory. 541 F.2d at 1227 (Tone, J., dissent-

ing).

"'Indianapolis V, 637 F.2d at 1119-20 (Tone, J., dissenting).

"*Id. at 1121 n.l4. This is similar to the rationale accepted in the Higgins case.

See text accompanying notes 198-202 supra.
''637 F.2d at 1122 (Tone, J., dissenting).

""Id. at 1125-26 (Tone, J., dissenting).

"'Id. at 1126 (Tone, J., dissenting).

""Id. at 1129-30 (Tone, J., dissenting).

•'"418 U.S. 717 (1974).

""429 U.S. 252 (1977).

I



1981] INTERDISTRICT BUSING 827

Washington v. Davis.^^^ Actually, the most important decisions were

Columbus^^^ and Dayton 11,^^^ two cases which could have con-

siderably eased the burden of finding segregative intent in In-

dianapolis if they had been decided sooner.

In the Indianapolis V decision, the district court and the court of
appeals, to a certain degree, contorted a school desegregation case

to fit into the molds of housing and employment decisions. The
analyses from these kinds of cases are generally inapplicable in a

school desegregation case, except that a finding of segregative in-

tent is required and disparate racial impact alone is insufficient. In

the Indianapolis case, the courts did an excellent, but at times un-

convincing, job. The fault is not theirs; it lies with a lack of
guidance. And yet, no blame can fairly be laid upon the Supreme
Court either. School cases differ too much to afford a discernible
pattern to their offenses and cures. Since Brown I, the Court has ac-
cepted various kinds of "segregative intent" and has drawn the line
only when intent cannot be found at all.^^^ That is why Indianapolis
IV had to be remanded — no claim of segregative intent had been
made. And that is why Washington v. Davis and Arlington Heights
were suggested as the ruling authority — not because they in-
structed upon finding intent in the school context but because they

simply required that segregative intent must be found to create a
constitutional violation under equal protection.

There are two explanations of why Indianapolis V was not over-
turned. First, the litigation after Indianapolis I involved essentially

a remedy case, as opposed to a violation case. Dual level litigation
involving both violation and remedy stages is not atypical because

[t]he school desegregation problem usually is divided into the

violation and the remedy stages. In the first stage, the Court
seeks to determine whether the school board or another

state agency engaged in unconstitutional discrimination; the

second prescribes the contours of the plan necessary to correct

the violations. The difficulty in the first stage is in going ... to
the determination that the conduct was intentional or pur-
posive discrimination.^^*

Different considerations are inherent in each phase. In the In-

dianapolis case, the initial violation stage was concluded with a find-

"'426 U.S. 229 (1976).
'="443 U.S. 449 (1979).

"^443 U.S. 526 (1979).

'"*No intent to support an interdistrict remedy was found in Milliken, 418 U.S. at
745.

"'Lane, The Principles and Politics of Equal Protection: Reflections on Crawford
V. Los Angeles City Board of Education, 10 Sw. U.L. Rev. 499, 521 n.l07 (1978).



828 INDIANA LAW REVIEW [Vol. 14:799

ing of de jure segregation in IPS in 1971. The ensuing nine years
were spent vindicating the proposed remedy. Segregative intent
still has to be found to justify an interdistrict remedy because the
extent of any desegregation order must be justified by an
equivalent violation.^^" But a brief survey of interdistrict cases has

shown that once a de jure intradistrict system is discovered, very
little further proof of intent is demanded. Thus, it appears that
Milliken, in which an interdistrict remedy was denied, is the excep-
tional case rather than the rule.

It is also possible that Indianapolis V would have been just as
acceptable even if it had been decided upon the racial impact theory

denounced by Circuit Judge Tone. Indianapolis had a de jure segre-

gated school system at the time of trial, and there had been an affir-

mative duty to dismantle it since 1954. If Brown I is considered a
court-imposed mandate to desegregate a dual system, an analogy

can be made to the Supreme Court's holding in United States v.
Scotland Neck City Board of Education. ^^'' In that case, a legislature
attempted to carve out a new school district in the face of a court
order. " '[I]f a state-imposed limitation . . . operates to inhibit or

obstruct . . . the disestablishing of a dual system, it must fall. ' "^^*

HACI and Uni-Gov are those "state-imposed limitations" which
prevented "the disestablishing of a dual system." The necessary in-
tent, therefore, could have been established by this duty to desegre-

gate IPS combined with the foreseeable consequences of disparate

racial impact and interdistrict effect from Uni-Gov and HACI ac-
tivities.^^® These factors would most likely have been sufficient in-

dications of segregative intent for a Court which had just handed

down Columbus and Dayton II.

VII. Conclusion

Unlike many commentaries on school desegregation cases, this
one has a conclusion. There is no need to speculate as to what might

happen in the next phase of litigation. Later issues arising in the In-

dianapolis case will not deal with the essential constitutional prob-

lem that took nine long years and almost a whole generation of

school children to finish.^^" The case began with the IPS intradistrict

'^'Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977).
"'407 U.S. 484 (1972).

'''Id. at 488 (quoting North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43. 45

(1971)).

"'It must be remembered that the Court has denigrated the intent standard used
to find HACI violations, the Omaha presumption. See note 142 supra.

'^^It will be interesting to note how the case in St. Louis will be decided in the
wake of Indianapolis V. In the most recent St. Louis opinion, the court has required



1981] INTERDISTRICT BUSING 829

violation, but the struggle centered around an interdistrict remedy
for which no equivalent violation had initially been determined. At

the conclusion of the lengthy litigation, the district court and the

court of appeals justified the interdistrict relief by concluding that

two governmental non-educational forces were motivated by segre-

gative purposes. This finding fulfilled the Supreme Court's
desideratum that only de jure, purposeful, segregation can be

judicially corrected. The case therefore ended with a remedy for a
violation.

The decision in the Indianapolis case will be difficult to follow

because school cases make poor factual precedent. However, it is an
excellent example of the effects of changing law and the individuality

of each case. There probably will never be one definitive approach

to finding segregative intent in school cases. Unlike housing and

employment cases, school desegregation cases cannot be defined in
terms of a single practice or decision.^'" The historical background,
alleged violations, and school organization, among other factors, dif-
fer in school cases making them more difficult to judge than other
kinds of equal protection litigation.

Another difference that sets school cases apart from other equal

protection cases is their remedies. In school desegregation cases, the

effects of the discrimination are continuously operating upon the

children and cannot be cured as simply as other equal protection

violations. In housing and employment cases, an injunction or a
remedial order for the immediate plaintiffs can be instituted. But in

school cases, the affected parties can only receive appropriate relief

in some form of affirmative action, such as consolidation or busing.

The Indianapolis case also demonstrates another problem en-
countered in most northern school cases — absent overt discrimina-
tion, courts are compelled to infer intent in these cases. There are
no guidelines for this procedure, which creates difficulties for the

courts. The Indianapolis case shows the weakness in this kind of
judicial treatment because a remand to the lower courts was re-
quired as each new pertinent decision was handed down.

But there is also strength in the flexibility inherent in this ap-
proach. Flexibility has allowed courts to look toward a result before

a constitutional violation is actually found and to remedy segre-
gative conditions that are more suggestive of de facto conditions
than de jure. The continuing nature of school desegregation viola-
tions and the adverse consequences they can engender necessitate

the joinder of outlying districts in order to determine whether an interdistrict remedy
would be appropriate. Adams v. United States, 620 F.2d 1277, 1295-96 (8th Cir. 1980)
cert, denied, 101 S. Ct. 88 (1980).

'''Lane, supra note 225, at 521 n.l07.



830 INDIANA LAW REVIEW [Vol. 14:799

such strong action, perhaps upon less proof of discriminatory intent

than in other cases. This is where the Indianapolis case fits. The
litigation was result-oriented, an approach that the Supreme Court
seems to have accepted without quarrel. If a court can find the
slightest indicium of segregative intent or a former de jure system

with a failure to affirmatively dismantle it, a desegregation order is

not likely to be overturned absent an inequitable remedy.

Susan p. Stuart