Certiorari granted, judgment vacated, and case remanded for reconsideration in light of Washington v. Davis, 426 U.S. 229 (1976). MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL dissent because they are persuaded that the Court of Appeals correctly interpreted
and applied the relevant decisions of this Court.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring.
I concur in the action of the Court, and agree that there would be no need to address the issue of remedy if the Court of Appeals upon reconsideration of its opinion in light of Washington v. Davis, 426 U.S. 229 (1976), should conclude that there was no constitutional violation. I would nonetheless include the issue of remedy in the remand order because of what appears to be a misapplication of a core principle of desegregation cases. In such cases, this Court has repeatedly emphasized:
"[The] task is to correct, by a balancing of the individual and collective interests, 'the condition that offends the Constitution.' A federal remedial power may be exercised 'only on the basis of a constitutional violation' and, '[as] with any equity case, the nature of the violation determines the scope of the remedy.'" Milliken v. Bradley, 418 U.S. 717, 738 (1974), quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971).
As suggested by this Court's remand premised upon Washington v. Davis, supra, the Court of Appeals may have erred by a readiness to impute to school officials a segregative intent far more pervasive than the evidence justified.*fn1 That
court also seems to have erred in ordering a desegregation plan far exceeding in scope any identifiable violations of constitutional rights.
As is true in most of our larger cities with substantial minority populations, Austin has residential areas in which certain racial and ethnic groups predominate in the population. Residential segregation creates significant problems for school officials who seek to achieve a nonsegregated school district. In Austin those problems are perhaps accentuated by the geography of the city. Acknowledging these difficulties, the Court of Appeals noted:
"'Countless efforts by school officials, consultants, and visiting teams have found it impossible to produce significant desegregation by boundary line changes, contiguous pairing of schools, magnet schools, or other effective means short of massive crosstown busing incident to noncontiguous pairing of... schools....'" United States v. Texas Education Agency, 532 F.2d 380, 394 (CA5 1976).
The Court of Appeals then concluded that nothing short of extensive cross-town transportation would suffice.
Designed to achieve a degree of racial balance in every school in Austin,*fn2 the ...