Racial Liberalism and School Desegregation Jurisprudence: Notes Toward a More Usable Past
When it comes to struggles for racial justice, federal equal protection doctrine has reached a dead end. “Color-blind constitutionalism,” a weapon deployed to undercut even modest racial reforms, now approaches a complete formal-legal victory. How did we get here?
In this chapter I suggest a line of analysis that explores the relationship between racial liberalism—a connected body of ideas about race, racism, and racial justice—and the trajectory of federal equal protection doctrine.1
I follow Gordon Silverstein’s account of the juridification of American politics to argue that legal doctrine and judicial policymaking are much like a game of Scrabble, with earlier key moves shaping, without tightly determining, the subsequent language and path of the law as well as subsequent reform ideas and strategies. As Silverstein puts it, in such a game “players start with a blank board, and the first player can head off in any direction she chooses. But slowly, over the course of the game, the players often end up in one corner of the board, whereas another part of the board is totally empty.”2
Although somewhat reductionist, Silverstein’s analogy is a useful way to think about the evolution of school desegregation jurisprudence. Brown, with its many possible meanings and futures, represents the first tiles in the game. Green, not Milliken, is the most significant narrowing case. Then, finally, with Parents Involved in Community Schools (PICS), we end up buried and gasping for air in one cramped corner of the board, one defined by the legalistic logic of intentionally discriminatory acts and the evil of racial classifications per se. Another quadrant concerned with “equal educational opportunities” is sparsely populated, while still another that might have been dedicated to fighting racial subordination is entirely blank. What proponents of school desegregation need now are new ideas and strategies—some of which might be informed by forgotten past moments and turning points—deployed on a new institutional game board.
More broadly, I argue that racial liberalism powerfully shaped the Court’s desegregation jurisprudence; that this doctrine was on the wrong path as early as 1968; that these particular and far from inevitable doctrinal developments were then easily absorbed and coopted by conservative opponents of racial justice; and that, indeed, we might even say that the central commitments of colorblind constitutionalism were already imminent within racial liberalism and liberal court “victories.”
The first section sets the table with a brief sketch of racial liberalism, the second traces the Supreme Court’s school desegregation jurisprudence from Brown to PICS and connects it to racial liberalism, and the third turns to the search for alternative arguments and strategies. In the end, I will suggest that the remaining proponents of school desegregation should look first to the contributions of their most powerful critic (Derrick Bell) for insights, and next to state constitutionalism and state courts as a viable path to the revival of their seemingly lost cause.
Historian Thomas Sugrue has given us a magisterial treatment of “the forgotten history of the Civil Rights Movement” outside the former Confederacy.3 One central theme in Sugrue’s account is the ascendance between 1940 and 1960 of a particular liberal view of race and racism. This view, for which I use the shorthand “racial liberalism,” emphasized “racism as a moral and psychological problem: One in the hearts and minds of misguided whites … Eliminating inequality was a matter of changing attitudes and beliefs; institutional change would follow.”4
Gunnar Myrdal’s An American Dilemma and Gordon Allport’s The Nature of Prejudice were perhaps exemplary texts that embodied and promoted racial liberalism.5 Myrdal famously argued that the “dilemma” was fundamentally a moral one involving the basic contradiction between widely endorsed American ideals—the American Creed of “liberty, equality, and fair opportunity for everybody”—and American practices. As Stephen Steinberg has noted, Myrdal’s master frame tended to reduce “racism to the level of beliefs that whites hold about blacks.” Race was a matter of irrational fear and prejudice on the part of Whites.6
This moral focus on White prejudice was only one side of racial liberalism, however. The other was a deep concern—one might even say an odd fascination—with the psychological damage that racism did to Blacks. Both sides, irrational prejudice and stigmatization, were further developed in Allport’s important book. Racism as White prejudice was most manifest in laws and practices guaranteeing segregation in residential neighborhoods and schools. Segregation stigmatized Blacks. Forced separation meant isolation, and isolation created an inferiority complex and low self-esteem. Damaged Black psyches could give rise to dysfunctional attitudes and values, which could easily congeal into specific, pathological cultural adaptations to oppressive conditions.
Irrationality and stigmatic harm. These two ideas capture the essence of the racial liberal view of the nature of racism and its primary effects. Following Guinier and Torres, we can call this view “race as irrational stigmatization.”7 What links the two sides of racial liberalism is what Myrdal, Allport, and many others after them posited as a “vicious circle.” As it was with slavery, so it was with Jim Crow, and now with the ghetto: prejudice and discrimination have their intended effects; they degrade, dehumanize, and debilitate. Those effects can then be observed and invoked as facts confirming the rationality of the prejudicial attitudes and values in the first place.8
This analysis had powerful implications for racial liberal goals and strategies. The overall goal of racial liberalism was of course racial integration in all walks of life. Racial mixing was always and everywhere the remedy for the disease. Why? As Allport put it, in lines that are still often cited by liberal proponents of school desegregation, “inter-group [inter-racial] contact” on “equal-status terms” would disabuse Whites of their irrational fears and convince Blacks of their basic humanity and equality. For Whites, what was essentially a phobia could be met and dissipated in much the same way that all phobias are: the patient would be exposed to that which is irrationally feared, and thereafter the patient would learn that the anticipated ill-effects did not follow. These social processes of enlightenment were not automatic, of course; they had to be carefully managed or they could go terribly wrong. But research showed that interracial contact reduced prejudice and discrimination, improved race relations, expanded opportunities for minorities, and so on.
And how would the desired racial integration come to pass? The liberal view of social change matched the diagnosis. It was generally a technocratic, top-down approach. “Moral leaders” should emphasize the proper, widely endorsed values and disseminate rational arguments in support of integration. Moral exhortation was invariably supported by copious references to social science research, with a heavy accent on social psychology.9 The emphasis on social psychology arises from and reinforces the “black victimization” side of the liberal case for integration. In portraits of damaged victims, racial liberals found an emotion-laden way to appeal to Whites’ moral conscience.10 If forced separation caused damage psyches and pathological cultural adaptations, then integration would heal the wounds though “exposing” Blacks to mainstream cultural norms and opportunity structures.
Over time, racial liberals’ preferred institutional mechanism for policy change became courts (sometime thought to be the forum of principle) and administrative agencies (sometime thought to be the forum of enlightened expertise). The resort to courts and administrative agencies is most often attributed to the hopelessness of a political process marked by hostility against “discrete and insular minorities.” However, there is also a strong affinity between racial liberalism’s conception of race and racial justice and the seeming attractiveness of social change imposed by judicial or administrative decree. If irrational prejudice was at the heart of the problem, then the imposition of change from above was seen as no problem at all, provided that it could be had. Indeed, liberal reformers often preferred it to the messiness and unpredictability of democratic mobilization and protest. Allport himself often referred to it as “the fait accompli.” If there is too much public argument or discussion in advance of change, then irrational fear and loathing prevail; in advance, Whites typically protest vociferously. However, once change backed by “vigorous leadership” is imposed, reality takes over and White protest and resistance quickly subsides. People quickly get used to it.11
Racial liberalism first arose to combat biological determinism. In that role it was an insurgent doctrine. Its basic antidiscrimination principle has underwritten a great deal of racial progress. However, whatever one makes of our current situation, there is not much dispute that residential and school segregation are two tightly connected areas in which racial liberalism largely failed. The racial ghetto and all that it means—for policing and mass incarceration, for housing, for the experience of community and the quality of life, and for schooling in a political democracy—remains for us to confront in some way.
Is there a viable alternative to racial liberalism? Throughout his book, Sugrue contrasts racial liberalism with many alternative views linked only by a felt sense of what racial liberalism lacked. The critics generally held that American racism was more systemic than racial liberalism allowed, that it was deeply “embedded in American economic, legal, and political institutions.” Race was better understood as a powerful but also a highly flexible marker tied in some way to phenotype but more fundamentally to group identity, relational power, and unequal social positions. For these critics, the alteration of power relationships and winning economic resources would do more to change hearts and minds than would any appeal to conscience or intercultural education programs ever could. What was required was the stuff of group conflict over political power—political organization and mobilization, alliances with other subordinated groups and, as A. Phillip Randolph put it, “pressure, more pressure, and still more pressure.” Here, positive group identity and distinctive cultural forms could and should be viewed as a vital resource for struggle, not as something to repress or downplay or get beyond.12
In the U.S. Supreme Court’s equal protection jurisprudence, it was the liberal view of race and racial justice that eventually prevailed, and this was nowhere more apparent than in the highly contentious matter of school desegregation.
The Court’s opinions in Brown I and II could plausibly read in several different ways. The precise nature of the wrong, the right, and the remedy were all opaque. The story of the political resistance and intransigence in the South that followed the Court’s decision has been told many times and need not be rehearsed in detail here. In Brown II, the Court never used the words “segregation” or “desegregation.” Rather, it offered several formulations sounding in racial neutrality and delegated authority to school districts and federal district courts to manage some sort of transition away from legally mandated segregation to some unspecified state of affairs that was not that. “With all deliberate speed,” a phrase that highlighted the pace of change, got all the attention, but the foundational issues (for example, “why was legal segregation wrong?”) went unexamined. The Court evaded the deeper questions for over a decade, and when it did finally address them, it gave us the wrong answers.13
In the South, the big game of whack-a-mole came to an end with the Civil Rights Act of 1964, which put coercive federal power behind the quest to eliminate separate schooling mandated by law, and the Elementary and Secondary Education Act of 1965, which vastly enhanced federal aid to education and thereby provided administrators with financial leverage to bring about change. In 1965 and again in 1966, the Office of Civil Rights (OCR) issued guidelines on student assignment policies. The latter set of rules included numerical goals for desegregation.14
Outside the South, interestingly, Brown reinvigorated longstanding civil rights struggles for equal educational opportunity. As current civil rights historians show us, these were typically grassroots efforts grounded in an antisubordination perspective. Here, the subordinated group demands that the dominant group cease and desist from policies and practices that relegate the subordinated group to inferior resources (broadly understood) and second-class citizenship. Integration per se was not the point. When these claimants resorted to courts and administrative agencies, as they often did, they did so in conjunction with a broad array of political strategies and tactics, including social protest.15 We can glimpse the future of school desegregation jurisprudence in the defensive response of non-Southern officials. New terminology, sounding in racial liberalism and racial neutrality, entered the lexicon of debate. “De facto” segregation was a world apart from the “de jure” kind. Whites and Blacks went to different schools, to be sure, but not because they were assigned on the basis of race, but rather because they lived in different “neighborhoods.” And who under the sun could fathom the causes of residential segregation? And wasn’t “segregation” itself the wrong term, implying as it did that someone was doing something wrong to someone else? If the racial population of a school did not match that of a district or region, then might it not be more accurate to say that the school was “racially imbalanced”? Racial balance might be a good policy idea, perhaps, but surely there was no constitutional mandate for “racial balancing for its own sake.” That would be inconsistent with the foundational proposition that race is an irrational and stigmatizing category, would it not?
From 1966 on, the story of the Court’s school desegregation jurisprudence is best understood as one about the official rejection by liberals on the Court of “equal educational opportunity” and/or “antisubordination” justifications for racially integrated schooling in favor of a form of legalism that was not only arid, but pernicious. Once we have the doctrinal path clearly in view, we are then in a better position to pursue harder questions about the relationship between legal doctrines, on one hand, and cultural understandings and political struggles, on the other.
A significant and largely forgotten moment in this trajectory from open possibilities to narrow legalism can be marked by the transition from Judge John Minor Wisdom’s opinion in United States v. Jefferson County (1966) to Justice Brennan’s opinion for the Court in Green v. County School Board (1968). The issue in Jefferson County was the constitutional adequacy of “freedom of choice” plans in seven consolidated cases from Alabama and Louisiana. Writing for a panel of the Fifth Circuit Court of Appeals, Judge Wisdom began with the proposition that Brown promised Black children “equal educational opportunities with white children in a racially nondiscriminatory public school system.”16 Affirmative steps would be required to “disestablish segregation.” Indeed, Wisdom wrote, here “desegregation” and “integration” should be used “interchangeably.” The Southern “dual system” had to be converted to a “unitary, nonracial (nondiscriminatory) system—lock, stock, and barrel: students, faculty, staff, facilities, programs, and activities.” The reason for the transformation was “to offer educational opportunities to all on equal terms.”17 Wisdom would then go on to constitutionalize the numerical goals of OCR’s 1966 Guidelines. He flatly rejected the school districts’ contention that racial integration was not mandatory.
What has been largely forgotten is Wisdom’s wide-ranging argument about why this was so. Over the course of his opinion, Wisdom moved seamlessly from his opening focus on equal educational opportunity to the deeper ground of anti-caste subordination. Several times, he called the Southern political and cultural system what it was—“apartheid.” Brown, he argued, was also about how Blacks were harmed “collectively” when “the state, by law or by custom, operates segregated schools or a school system with uncorrected segregation effects.”18 What was the nature of this collective harm? Wisdom gave the following answer, which, it seems to me, could very well apply to our current ghettos and ghetto schooling:
Denial of access to the dominant culture, lack of opportunity in any meaningful way to participate in political or other public activities, the stigma of apartheid condemned by the Thirteenth Amendment are concomitants of the dual educational system. The unmalleable fact transcending in importance the harm to individual Negro children is that the separate school system was an integral element in the Southern States general program to restrict Negroes as a class from participation in the life of the community, the affairs of the State, and the mainstream of American life: Negroes must keep their place.19
This was why, Wisdom continued, the Court in Bolling v. Sharpe, the District of Columbia case, “concluded that racial classifications in public education were so unreasonable and arbitrary as to violate due process,” quite “beyond any question of psychological harm or denial of educational opportunities to the individual …”20 What was really at stake here, then, was nothing less than “the right of Negroes to national citizenship, their right as a class to share in the privileges and immunities only white citizens had enjoyed as a class.” Invoking the first Justice Harlan’s dissent in The Civil Rights Cases (1883), Wisdom wrote that the Civil War Amendments “created an affirmative duty that the States eradicate all relics, ‘badges and indicia of slavery,’ lest Negros sink back into ‘second class’ citizenship.”21
Wisdom could have ended his argument here, but he did not. The antisubordination foundation of his argument led directly to the question of collective (government) responsibility for so-called de facto segregation. That concern pointed sharply up toward the non-South, and Wisdom did not shy away from going there. The law on the question of de facto school segregation in the non-South was highly unsettled, but for Wisdom Brown at least entailed a presumption of a “duty to integrate.” Although strict and inflexible racial balancing was not required, “integration [was] an educational goal to be given a high, high priority among various considerations involved in the proper administration of a school system beset with de facto segregated schools.” Nationwide, racially separate schools were just part of a vast, interlocking, mutually reinforcing complex of ideas and institutions that secured racial subordination. That past, Wisdom seemed to be saying, should never be forgotten.22
In Green v. County School Board of New Kent County (1968), the Supreme Court sets off in a radically different direction on the Scrabble Board.23 This case involved the rural Virginia school district of New Kent County. The district had 1,300 students, of whom 740 were Black and 550 were White, and it operated two K-12 schools, one for Whites and one for Blacks. Because there was little residential segregation, a zoning policy that sent students to the nearest school would have desegregated the district. After plaintiffs filed suit in 1965, the lower courts approved a “freedom of choice” plan that had resulted in 115 Black students transferring to the White school, and no Whites transferring to the Black school.24
Justice Brennan’s opinion for a unanimous Court in Green began not with Brown I, as Wisdom had, but with Brown II. The question was whether the district’s freedom of choice plan complied with the duty “to achieve a system of admission to public schools on a nonracial basis.”25 Brown had outlawed the “pattern of separate ‘white’ and ‘Negro’ schools … established under compulsion of state law,” Brennan wrote. The duty was therefore to effectuate a transition from a “dual system” to “a unitary, nonracial system of public education.” Desegregation remedies had to touch every facet of the system, not just the students but also “faculty, staff, transportation, [and] extracurricular activities and facilities.” These remedies would be imposed to create a system “without a ‘white’ school or a ‘Negro’ school, but just schools.”26
That Brennan borrowed liberally from Wisdom’s phrasings makes it easy to miss the complete erasure of Wisdom’s moral and constitutional foundations. If we think of the two opinions as plastic relief maps, with Green overlaid on Jefferson County, then the only thing left of Jefferson County after Green is the remedial rulebook. In place of Wisdom’s antisubordination perspective, Green substitutes the tort-like logic in which an identifiable wrongdoer commits a discrete act that causes some consequence. The wrong must then be remedied by a finite decree restoring some (in this instance mythical) status quo ante.
Wisdom had figured separate schools “by law or custom” as just a key piece in a total system of racial subordination. In his Jefferson County opinion, “dual” and “unitary” took on meaning in light of the underlying recognition of a history of White supremacy. This sense of the wrong and therefore sense of purpose might have guided approaches to remedies and the compromises and difficulties inevitably attendant to their implementation. Keeping group power and group inequality in mind might have mitigated the extent to which some of the later purported remedies for racial injustice tended to, themselves, embody racism and disadvantage Blacks. Green intimated that judging the adequacy of a remedy was no more complicated than viewing race as phenotype and counting the number of Black and White bodies housed under one school roof. In a deep sense, the proffered purpose of desegregation (to undo specific discriminatory acts) was absurd. Because the real purpose remained hidden (or perhaps no one real purpose existed), the contours of any “transition” from dual to unitary remained opaque.
Green did “do something,” however. It made many existing judicial decrees in the South, considered “by the numbers,” legally insufficient, and it sparked an intense six-year period of conflict over schools, courts, and racial justice, nationwide. In the South, the NAACP Legal Defense and Education Fund (LDF) and Department of Justice reopened scores of cases, and by 1972 the South was more desegregated than any other region of the country. The most important desegregation battles occurred in America’s large cities.
Swann v. Charlotte-Mecklenburg27 further embedded the legal logic of Green. The LDF had filed Swann in 1965. The case was unusual in that city and county had merged into one school district in 1960, for reasons having nothing to do with race. The new district was vast. It covered 550 square miles, operated 107 schools, and served 84,000 students. Of these students, 71 percent were White and 29 percent were Black. The initial round of litigation had resulted in some desegregation. Still, when the LDF moved to reopen Swann in light of Green, over half of the district’s 24,000 Black students still attended 21 schools in the central city that were 99–100 percent Black. The pattern of residential segregation was common nationwide.28
In March 1970, Federal District Judge James McMillan asked the district to submit a new desegregation plan. He ended up relying on his own expert and imposing an order requiring desegregation secured by extensive two-way busing. In May, the Fourth Circuit reversed McMillan. It held that he went too far in ordering desegregation at the elementary school level. The Supreme Court granted certiorari in June, and issued its decision in April of 1971.
The question before the Court in Swann was whether the trial judge had exceeded his remedial authority. In a unanimous opinion nominally authored by Chief Justice Burger, but in which Justice Brennan played a large role, the Court answered “no.” Scholars are generally critical of Burger’s opinion; one calls it “somewhat schizophrenic” and another “one of the most confused opinions ever produced.”29 Although the opinion is indeed rife with vague and contradictory statements, two things are very clear: the wrong is the intentional segregative act and the remedy is by-the-numbers racial mixing. Neoconservative scholars generally argue that Green and Swann transformed Brown by turning its non-discrimination principle into a mandate for racial integration. But Burger’s opening lines in Swann defined the situation before the Court this way: “Swann and its companion cases arose in states having a long history of maintaining two sets of schools in a single system deliberately operated to carry out a government policy to separate people solely because of their race. That was what Brown was all about.”30 It is only old-fashioned, Jim Crow racism that offends the Constitution. Burger’s most important lines were these:
School authorities are traditionally charged with broad power to formulate and implement education policy, and might well conclude, for example, that, in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy.31
The point is not that the phrase “the violation determines the scope of the remedy” necessarily limits what “intent” amounts to, or the scope of remedies. The Court’s expansive understanding of both violation and remedy in Keyes belies that notion. Rather, the point is that “the why” of it all has been resolved once again against both the contested substance of equal educational opportunity and the contested history of racial subordination and its relevance. Nothing whatsoever was said about educational harms and benefits or our history of racial injustice.
With the table thus set, Burger goes on to offer his schizophrenic effort to define “with more particularity the responsibilities of school authorities in desegregating a state-enforced dual system in light of the Equal Protection Clause.”32 But there is really a much deeper schizophrenia here. On one hand, the Court is saying that there is no constitutional right to “racial balance.” This comment foreshadows the Court’s later, constant refrain that “racial balancing for its own sake” is “patently unconstitutional” (as if anyone ever would pursue “racial balancing for its own sake”). On the other hand, because the Court’s notion of violation (wrong) is historically thin and far removed from social realities, it seems that the Court itself is requiring lower courts to engage in “racial balancing” not for any great or important reason, but almost simply for its own sake. Of course, the proffered reason is to “correct the wrong.” But no one could really believe that there were any tight connections going from segregative acts, to causation, to remedies undoing the wrong. Soon many people, many African-Americans included, could not quite see the point of rigid racial balancing remedies, either.
Swann made busing a central issue on the national agenda.33 After Swann, all eyes turned to whether all-out desegregation via busing would come to the non-South. Perhaps the most avid and astute Court-watcher at the time was President Nixon. Nixon’s public comments after Swann perfectly illustrate how liberal legal doctrine strengthened the hand of conservatives in their quest for a colorblind constitution. Although the final closing down of open doctrinal possibilities would not come until the Court’s decision in Keyes in June 1973, Nixon’s appropriation of legal concepts and categories reveals much about the trajectory of law and politics.
Nixon’s approach hinged crucially on the de jure/de facto distinction. As early as March 1970, in response to Judge McMillan’s order requiring extensive busing in Charlotte, Nixon issued a carefully considered written statement. He wrote that: “[t]he constitutional mandate will be enforced.” But he went on to stake his initial claim about the nature of this mandate. It was one guaranteeing fair, unbiased treatment, but not “any compulsory busing beyond normal geographic school zones for the purpose of achieving racial balance.” “To the extent possible,” he added, “the neighborhood school concept should be the rule.” Nixon went farther. He linked this position with a broader vision of American society. He stated:
In speaking of “desegregation” or “integration,” we often lose sight of what these mean within the context of a free, open, pluralistic society. We cannot be free, and at the same time be required to fit our lives into prescribed places on a racial grid—whether segregated or integrated, and whether by some mathematical formula or by automatic assignment. Neither can we be free, and at the same time be denied because of race—the right to associate with our fellow citizens on a basis of human equality.34
Nixon thus laid claim to Green’s understanding of wrong and remedy. As between the two, controlling the notion of “the wrong” is obviously more important than debates over remedies. The wrong, Nixon argues, is racial classification itself; indeed, our very freedom is threatened if the government places us on a “prescribed” place on “a racial grid.” It comes almost as an afterthought that the government must also ensure that a “right to associate” is not irrationally denied on the basis of racial prejudice. Although it was not much perceived at the time, Nixon actually ended up getting much of what he wanted in from the Court in Swann.
In April 1971, when reporters asked Nixon for a reaction to the Court’s decision, Nixon specifically referred back to his March 1970 statement and highlighted what he rightly perceived as hardening of legal doctrine based on the de jure/de facto distinction. He had, he said, long opposed “busing for the purpose of achieving racial balance” and supported the “neighborhood school.” But now that the Court had spoken on the permissible scope of remedies, he would follow the law. Indeed, he said, “no one is above the law.” Translation: “If the Court says that it is the law, I will enforce it. If you do not like it, blame the Court, don’t blame me.”35 Nixon was then happy to step aside while a bi-partisan consensus emerged in Congress over the latter half of 1971 against busing to achieve integration. In September of that year, he nominated Lewis Powell and William Rehnquist to serve on the Court.
But then developments in the lower courts provided Nixon with another golden opportunity to, all at once, claim the mantle of legality, appeal to White working-class resentments, and profess his concern for the minority poor. In Richmond, Virginia, in January 1972, District Court Judge Robert Merhige issued a 325-page opinion ordering consolidation of Richmond with two surrounding suburban districts.36 After concluding that Brown stood for a right to equal educational opportunity, Merhige found that, in a “bi-racial community,” “meaningful integration” was an essential element of that right. Although Merhige offered several justifications for consolidation, this key one did not hinge on a predicate finding of intentional segregation on the part of the suburbs. Like Wisdom’s argument in Jefferson County, Merhige’s pointed sharply to the non-South.37 Around the same time, in Detroit, Michigan, District Court Judge Stephen Roth was moving toward consolidation of the city schools with 53 suburban districts.
Nixon seized the moment. He used a nationally televised address to urge Congress to adopt anti-busing measures. The matter was now “urgent,” Nixon said,
because of a number of recent decisions of the lower Federal courts. Those courts have gone too far in some cases beyond the requirements laid down by the Supreme Court in ordering massive busing to achieve racial balance. The decisions have left in their wake confusion and contradiction in the law; anger, fear, and turmoil in local communities; and, worst of all, agonized concern among hundreds of thousands of parents for the education and safety of their children who have been forced by court order to be bused miles away from their neighborhood schools.
The “vast majority of Americans, white and black,” he added, “feel strongly that the busing of school children away from their own neighborhoods for the purpose of achieving racial balance is wrong.” Nixon’s attack on busing came couched in concern for the minority poor. Congress should also spend more money to improve ghetto schools. James Ryan calls this “Nixon’s Compromise”: “students in the city would remain in the city and not be permitted to attend suburban schools; in exchange for staying put, they would get more resources.”38
Nixon’s turning of the tables was remarkably astute. It prefigured the world of race and equal protection doctrine that that we inhabit today. One central idea here is that liberals favor pursuing racial balance for its own sake. What makes this facially strange idea plausible is the liberals’ reduction of race to phenotype, prejudice, and stigma. If liberals think race amounts to skin color and prejudice, then it follows that they think racial mixing produces racial justice. They want racial balancing not for no reason, as Nixon alleges, but for reasons that run back to the older, Jim Crow form of racism. These reasons would become increasingly weak as time went on. It then becomes easier and easier to say that liberals favor racial balancing for its own sake. Nixon added another constant theme of subsequent Supreme Court opinions—namely, the claim that liberals who pursue race-conscious policies are, themselves, mindlessly fostering racialist thinking and racial divisiveness and balkanization. They are to blame for White resentments and heightened racial conflict.39
The Court’s next major pronouncement on school desegregation came in Keyes. The posture of Keyes on appeal forced the Court to confront the validity of the de jure/de facto distinction. It had to either reaffirm or abandon it. When the Court initially voted in the case in January 1973, Burger, Powell, and Rehnquist indicated that they would affirm the Tenth Circuit and hold that desegregation should be required only for the Park Hill area, the only neighborhood for which intentional segregation had been proven. The other justices “coalesced around the views of Justice Brennan.” Brennan, it has been reported, liked to greet his new law clerks by asking them what the most important rule of law was, and then holding up five fingers, by which he meant five votes. The important thing for this liberal justice was the result, and not the legal justification for the result. The Court’s decision process in Keyes illustrates this view perfectly.40
Brennan’s draft opinion, which would eventually command the Court, rejected the trial judge’s claim that there was a positive right to “equal educational opportunity.”41 The touchstone of a constitutional violation would remain “purpose or intent to segregate.” However, Brennan noted, the lower courts had not applied “the correct legal standard.” A proper analysis, Brennan argued, required a two-step process that entailed shifting burdens onto the defendants’ shoulders. First, a finding of intentional segregation in a substantial part of the district would impose a burden on defendants to rebut a strong presumption in favor of the conclusion that the segregation was systemic. Defendants would have to show that the parts of the system were really isolated from each other. If they could not, then the system would be deemed a “dual system,” and, as in Green and Swann, an “all-out effort to desegregate” should follow.42 Moreover, even in the unlikely event that a district met this first burden, Brennan continued, the finding of intentional segregation in a substantial part of the district still cast a shadow over any circumstantial evidence with respect to the rest of the district. The finding had “probative value” in assessing official intent elsewhere in the system.
Justice White recused himself (his old law firm in Colorado had once represented the school district), Justice Powell determined to draft his own opinion, concurring in the result but dissenting in part, and Justice Blackmun withheld his vote until he saw both the Brennan and Powell drafts. Brennan did not yet have his five votes.
Powell’s view was not grounded in the country’s history of racial subordination or in a positive right to equal educational opportunity. Rather, it was mostly grounded in his anger at sectional hypocrisy and his concerns about the potential counter-productivity of rigid racial balance remedies in general and busing in particular. His basic point was that what was fair for Charlotte should be fair for Denver.
Powell argued that the existence of racial separation in the schools, without regard to its cause, could trigger a judicial inquiry into whether school officials were “operating a genuinely integrated school system.” Powell was exceedingly vague about what a district would have to show to meet this test, or about how this inquiry would then differ from the Court’s focus on intentionally segregative acts. Moreover, Powell was careful throughout his opinion to emphasize that his analysis applied only within a school district, and not across districts. Finally, even if a violation were found, remedies would have to be “reasonable,” by which Powell meant the result of “a balanced evaluation of the obligation of public school boards to promote desegregation with other, equally important educational interests,” like “the neighborhood school concept.”43
We now know that there may have been five, or perhaps even six, votes on the Court in Keyes for abandoning the de jure/de facto distinction. When Justice Brennan saw Powell’s draft, he immediately circulated a memo stating that he would be happy to recast his majority opinion, and, indeed, to start the analysis where Powell said it should start. However, Brennan made it clear that he could not simply accept Powell’s view of “neighborhood schools” and opposition to busing. Not surprisingly, Powell never responded to Brennan’s invitation to negotiate over legal doctrine and remedies. Like his “diversity” rationale in Bakke, the doctrinal gymnastics that he proffered in Keyes were just instrumental, if not somewhat “tongue-in-check.” For his part, Brennan then stood pat on the firmer legal foundation built up in Green and Swann