Keyes, the Denver school DESEGREGATION case, was the first such case to reach the Supreme Court from a district outside the South. The case gave the Court an opportunity to decide whether the fact of separation of the races in a city's schools was sufficient to justify desegregation remedies, even in the absence of any history of state law commanding SEGREGATION or any deliberate segregative action by the school board. The Court found it unnecessary to decide this question. Deliberate segregative actions of the board in one substantial part of the city, the Court said, raised a presumption of de jure segregation affecting the whole district; absent a showing that the district's parts were truly unrelated, a districtwide remedy would be approved on the basis of SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION (1971). The Court thus affirmed a busing order affecting twelve percent of the district's pupils. Justice WILLIAM J. BRENNAN wrote for a Court that was no longer unanimous.
Justice LEWIS F. POWELL, in a separate opinion that was more dissent than concurrence, argued that the time had come to scrap the DE FACTO / DE JURE distinction. In his view, Swann effectively required a school board to provide a remedy not only for segregation deliberately brought about by its own action or by state law but also for residential segregation?a fact of urban life throughout the country. "Segregative intent" was an illusory concept, he said. Once the fact of racial separation is shown, a board should have the duty to take appropriate steps to minimize school segregation. Massive busing, however, was not an
appropriate remedy in his opinion, chiefly because of its costs to the...