Three years before Swann was decided, the Supreme Court had established a school board's affirmative duty to dismantle a school system that had been racially segregated by the command of law or by the board's deliberate actions. (See GREEN V. COUNTY SCHOOL BOARD.) In Swann, the Court was asked to apply this standard to a large metropolitan school district including the city of Charlotte, North Carolina, and its surrounding county. President RICHARD M. NIXON had made two appointments to the Court in the intervening years, and some observers expected the Justices' previous unanimity in school DESEGREGATION cases to be shattered in this case. In the event, no such thing happened; a unanimous Court affirmed a sweeping order by the federal district judge, James B. McMillan, calling for districtwide busing of children for the purpose of improving the schools' RACIAL BALANCE. (After issuing this order, Judge McMillan received death threats and was given police protection.) The Swann opinion was signed by Chief Justice WARREN E. BURGER. However, internal evidence strongly suggests that the opinion was a negotiated patchwork of drafts, and ivestigative journalists have asserted plausibly that Justice POTTER STEWART contributed its main substantive points.
Once a constitutional violation was found, the Court said, the school board had an obligation to take steps to remedy both present de jure segregation (see DE FACTO / DE JURE) and the present effects of past de jure segregation. These steps must achieve "the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." The Court thus approved Judge McMillan's use of districtwide racial percentages as "a starting point" in shaping a remedy and placed on the school board the very difficult burden of showing that the continued existence of one-race schools was not the result of present or past de jure segregation. Finally, the Court approved the busing of children to schools not in their own neighborhoods as one permissible remedy within a court's discretion. The matter of busing, however, was not left to lower court discretion. In a COMPANION CASE from Mobile, Alabama, Davis v. Board of School Commissioners, the Court required busing the lower courts had not ordered.