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58 Nw. U. L. Rev. 157 (1963-1964)
Segregation Litigation and the Schools-Part II: The General Northern Problem

handle is hein.journals/illlr58 and id is 169 raw text is: Nortwestemt,:fnivmrsi LAW REVIEW VOLUME 58 MAY-JUNE NUMBER 2. SEGREGATION LITIGATION AND THE SCHOOLS-PART II: THE GENERAL NORTHERN PROBLEM* John Kaplant N the New Rochelle case' the court had found it unnecessary to decide the basic complaint of the Negro plaintiffs-that mere de facto segrega- tion involved a violation of constitutional right. The facts revealed at the trial allowed the court to base its decision on the narrower proposition that the deliberate attempt to segregate or contain Negroes in given schools by discriminatory drawing of attendance zone boundaries, site selection and the like, was unconstitutional. Though the proposition of law enunciated in the New Rochelle case was undoubtedly correct, it does not give a great deal of guidance on the more basic issue. Although many Negro leaders have asserted that, in almost all cities, gerrymandering, or racially moti- vated zoning, has been the rule rather than the exception, this is extremely difficult and expensive to establish. Moreover, it involves a number of factual findings as to purpose which the Negro leadership would prefer not to leave in the hands of the inferior courts-even the federal courts. Accordingly, Negro leaders throughout the United States sought a legal theory which could, as a matter of law, eliminate the difficulties of proof that could plague plaintiffs attempting to capitalize on the New Ro- chelle theory. In a sense, it might be said that they were looking for a doctrine that would obviate the need to prove deliberate purpose, very much as Brown v. Board of Education had rendered unnecessary an ex- pensive case-by-case attack upon school boards violating the separate but equal doctrine. If it could be established that a school board's purpose or its deliberate policy of segregation was as irrelevant as the tangible inequality of segregated schools, this could be accomplished. Thus, any action taken by a school board regardless of its purpose or other effects which caused in the main a separation of the races would be constitution- * This is the second part of a two-part article concerning the problem of school segregation in the North. The first part appears in 58 Nw. U.L. REv. 1 (1963). tAssociate Professor of Law, Northwestern Univ. Taylor v. Board of Educ., 191 F. Supp. 181 (S.D.N.Y.), appeal dismissed as premature, 288 F.2d 600 (2d Cir.), final decree, 195 F. Supp. 231 (S.D.N.Y.), aff'd, 294 F.2d 86 (2d Cir.), stay denied, 82 Sup. Ct. 10, cert. denied, 368 U.S. 940 (1961). See Kaplan, Segregation Lit- igation and the Schools-Part I: The New Rochelle Experience, 58 Nw. U.L. REv. 1 (1963).

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