Supreme Court declares desegregation busing constitutional

Supreme Court declares desegregation busing constitutional

On April 20, 1971, the U.S. Supreme Court unanimously declares busing for the purposes of desegregation to be constitutional. The decision in Swann v. Charlotte-Mecklenburg Board of Education settled the constitutional question and allowed the widespread implementation of busing, which remained controversial over the next decade.

The Supreme Court’s 1954 ruling in Brown v. Board of Education officially banned racial segregation in American schools, but the end of formal segregation did not lead to a new era of total integration. Many previously segregated schools in the South remained desegregated in name only throughout the '50s and '60s, and the de facto segregation of neighborhoods across the nation meant that many technically-desegregated school districts had little or no racial diversity. Many city governments closed certain schools that were liable to become racially mixed and built new ones in more homogenous areas, creating new schools that were effectively segregated in order to avoid integrating old ones. Additionally, the “white flight” phenomenon saw many white families leave the cities for less-diverse suburbs, or move their children from integrated public schools to all-white private or parochial schools.

Thus, ten years after Brown, fewer than 5 percent of Black children in North Carolina’s Charlotte-Mecklenburg School District attended integrated schools. The city government’s solution was busing, the practice of intentionally moving children to schools outside of their school districts in order to desegregate. When the NAACP sued Charlotte on behalf of a six-year-old boy, James Swann, Judge James McMillan ruled in their favor, upholding the constitutionality of busing and ordering the city to begin moving students from inner-city Charlotte to schools in suburban Mecklenburg, and vice-versa. White parents were incensed, sending McMillan death threats, burning him in effigy, and forming the Concerned Parents Association, which launched an unsuccessful boycott of the public school system and ran a slate of anti-busing candidates for local office.

The case was appealed to the Supreme Court, which unanimously sided with the NAACP on April 20, 1971. The ruling allowed cities across the country to adopt busing, although a 1974 ruling restricted busing to districts that could be proven to have enacted discriminatory policies. From the Deep South to Boston to California, busing policies led to pushback and sometimes violence from white parents, and while many localities did achieve the goal of racial integration, the legacy of busing is still a controversial topic. By the end of the 20th century, busing had all but vanished thanks to legal challenges and local governmental decisions. Although critics argue that busing was unfair to all involved, placing a burden on the Black children it was meant to help, a study by the Civil Rights Project at Harvard University conducted in the early 2000s found that desegregation in American schools had regressed back to the same levels as the mid-'60s, and that the integration of public schools had peaked in 1988.

READ MORE: What Led to Desegregation Busing—And Did It Work?


Swann v. Charlotte-Mecklenburg

The Charlotte-Mecklenburg school district included the city of Charlotte, North Carolina , and rural Mecklenburg County. Twenty-nine percent of the district's school-age children were black, most of them concentrated in one area of Charlotte. Schools in the district were essentially either all-white or all-black, and the all-black schools were more poorly equipped than the all-white schools. In 1965, NAACP attorney Julius LeVonne Chambers (1936–) initiated a lawsuit to end racial segregation in the Charlotte public schools. The first ruling in Swann v. Charlotte-Mecklenburg made only vague requirements for change. Initially, the school district adopted a plan that supposedly permitted students to transfer between schools if there were open places available. After these changes, though, only 490 of the 20,000 black students in the district attended schools that contained any white students, and most of these students were in one school that had only seven white students. The few black students who attempted to attend all-white schools were often attacked by mobs of angry whites.

Chambers filed another legal action in 1969. Federal District Judge James B. McMillan (1916–1995) found that the Charlotte schools were still illegally segregated. With the assistance of education consultants, McMillan developed and imposed a desegregation plan in the public schools that involved transporting white children to previously all-black schools and black children to previously all-white schools to achieve desegregation. By mixing black children and white children in every school building, the school officials would no longer be able to provide adequate educational resources only for white students. Since blacks tended to live in one area of the city, this required transporting the children.

Many white residents did not want their children to attend schools with black children. Judge McMillan received threatening telephone calls and was ostracized (excluded from social events) by the community. Chambers was directly attacked. Firebombs and dynamite damaged his office, car, and home. The school board still wanted to avoid desegregation and appealed to the Supreme Court to overturn Judge McMillan's busing plan.

Many people expected at least some of the Supreme Court justices to rule against busing as a tool for desegregating schools. President Richard Nixon (1913–1994 served 1969–74) had campaigned against the forced busing of school children. Nixon's two appointees to the Supreme Court, Chief Justice Warren Burger (1907–1995) and Associate Justice Harry Blackmun (1908–1999), were presumed to agree with the president's view. Nonetheless, after much debate, on April 20, 1971, the Court ruled unanimously that judges could order school districts to use busing as a means to desegregate schools.


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On June 30, 1982, the U.S. Supreme Court rules that Initiative 350, a 1978 voter-approved measure banning mandatory busing for desegregation, is unconstitutional. The ruling represents a victory for the Seattle School District, which had argued it would be impossible to integrate the city's schools without the use of the tools prohibited by Initiative 350.

Initiative 350 was passed by a substantial margin of Washington's voters (66 percent statewide, 61 percent in the city of Seattle) on November 8, 1978, six weeks after the Seattle School District implemented what was known as the Seattle Plan, involving the cross-town busing of entire neighborhoods of children. The initiative was sponsored by Citizens for Voluntary Integration Committee (CiVIC), an anti-busing group headed by Robert O. Dorse, a Seattle businessman. School districts in Tacoma and Pasco joined Seattle in filing a lawsuit challenging its constitutionality in December 1978.

In June 1979, as the first year of district-wide busing in Seattle was ending, U.S. District Court Judge Donald S. Voorhees agreed with the school districts and declared the initiative unconstitutional. One year later, the U.S. Court of Appeals for the Ninth Circuit upheld the District Court ruling.

In a five to four decision affirming the two lower federal courts, the U.S. Supreme Court said the initiative created an "impermissible racial classification" because it allowed busing for non-racial reasons, but banned it for racial reasons. The initiative required school authorities to assign children to the nearest or next-nearest school to their homes, with certain exceptions.

The ruling came at the end of the fourth year of the Seattle Plan. About 13,000 of the district's 46,900 public school students -- nearly 30 percent -- rode buses for purposes of desegregation during that year.


Contents

Educational segregation in the U.S. Edit

Brown v. Board of Education was a landmark desegregation ruling, but difficult to implement. The case also did not take into account many sources of segregation in the US, including an ongoing migration of Black people into cities, white flight to the suburbs, and policies and practices that barred non-whites from suburban housing. By the 1970s, many urban school districts had super-majorities of black students. [4] Educational segregation was therefore widespread, with informal racial barriers in the form of numerous thinly disguised practices that opposed Black people living in suburbs.

Detroit Edit

Detroit is one of the most segregated cities in the United States. [5] [6] During the Great Migration, the city gained a large black population, which was excluded upon arrival from white neighborhoods. This exclusion was enforced by economic discrimination (redlining), exclusionary clauses in property deeds, as well as violence (destruction of property including arson and bombings, as well as assault). [7] Some of the discriminatory policies in Detroit ended as public awareness increased and became more sensitive to the national civil rights movement, which began after World War II, and as black voting power in city precincts increased. The changes allowed Black people to move into additional neighborhoods in the City, but some neighborhoods resisted and for the most part little or no change of segregative practices occurred in the suburbs.

By the mid-70s, more than two-thirds of students in the Detroit school system were black. [4]

Procedural history Edit

On August 18, 1970, the NAACP filed suit against Michigan state officials, including Governor William Milliken. The original trial began on April 6, 1971, and lasted for 41 days. The NAACP argued that although schools were not officially segregated (white only), the city of Detroit and the State as represented by its surrounding counties had enacted policies to increase racial segregation in schools. The NAACP also suggested a direct relationship between unfair housing practices (such as redlining) and educational segregation. [8] District Judge Stephen J. Roth initially denied the plaintiffs' motion for a preliminary injunction.

The Sixth Circuit Court of Appeals ruled that the "implementation of the April 7 plan was [unconstitutionally] thwarted by State action in the form of the Act of the Legislature of Michigan" and remanded the case for an expedited trial on the merits. [9]

On remand to the District Court, Judge Roth held the State of Michigan and the school districts accountable for the segregation, [10] and ordered the implementation of a desegregation plan. [11]

The Sixth Circuit Court of Appeals affirmed some of the decision, [12] specifically the official segregation that had been practiced by the City's school district, but withheld judgment on the relationship of housing segregation with education. The Court specified that it was the state's responsibility to integrate across the segregated metropolitan area. [13]

The accused officials appealed to the Supreme Court, which took up the case on February 27, 1974. [8]

The Supreme Court overturned the lower courts in a 5-to-4 decision, holding that school districts were not obligated to desegregate unless it had been proven that the lines were drawn with racist intent on the part of the districts. Thus, superficially arbitrary lines drawn by State agencies which produced segregated districts were not illegal. [4] [14]

The Court held that "[w]ith no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect," the district court's remedy was "wholly impermissible" and not justified by Brown v. Board of Education. The Court noted that desegregation, "in the sense of dismantling a dual school system," did not require "any particular racial balance in each 'school, grade or classroom.'" The Court agreed that the Constitutional rights of Black people had been violated by the City' school district the segregative results involving suburban districts did not make suburban districts nor the State of Michigan responsible. [13]

The Court also emphasized the importance of local control over the operation of schools.

Dissents Edit

Justice Thurgood Marshall's dissenting opinion stated that:

School district lines, however innocently drawn, will surely be perceived as fences to separate the races when, under a Detroit-only decree, white parents withdraw their children from the Detroit city schools and move to the suburbs in order to continue them in all-white schools. [15]

Justice Douglas' dissenting opinion stated that:

Today's decision . means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only "separate" but "inferior.". Michigan by one device or another has over the years created black school districts and white school districts, the task of equity is to provide a unitary system for the affected area where, as here, the State washes its hands of its own creations. [16]

The Supreme Court's decision required the City of Detroit's school district to redistribute the relatively small number of white students more widely across the district. According to Wayne State professor John Mogk, the decision also enabled the white flight that re-entrenched the city's segregation. [8] The Detroit Public Schools became even more disproportionately black over the next two decades (with 90% black students in 1987). [13]

This result reaffirmed the national pattern of city schools attended mostly by Black people, with surrounding suburban schools mostly attended by Whites. [13] [17]


The Anti-Busing Constitutional Amendment

on June 27, a petition, sponsored by Rep. Ronald Mottl (D-Ohio), to discharge the House Committee on the Judiciary from consideration of a proposed constitutional amendment banning the forced busing of school children to achieve racial balance received the signatures of a majority (218) of the members of the House. Under the rules of the House, a discharge petition must receive floor consideration on the second or fourth Monday following a period of seven legislative days after the petition is printed in the Congressional Record. That day would have been July 23 of this year, but the House has already voted to postpone the floor consideration until July 24. On that day the House, after twenty minutes debate, will vote whether to accept the petition. If the petition is accepted, the House will immediately proceed to debate the amendment, and a final vote will occur before any other House business can be brought up. The amendment requires a two-thirds vote (290) of the House for passage. The Senate is awaiting House action before acting on the amendment.

The text of the proposed amendment is as follows:

SECTION 1. No student shall be compelled to attend a public school other than the public school nearest the residence of such student which is located within the school district in which such student resides and which provides the course of study pursued by such student.

SECTION 2. The Congress shall have the power to enforce this article by appropriate legislation and to insure equal educational opportunity for all students. ANALYSIS

The intention of Section One of the amendment is to restrict the authority of any court to order the busing of school children to any public school other than the one closest to the students' homes in order to achieve some quota of racial enrollment. The latest figures of HEW's Office of Civil Rights shows that some 1505 school districts with an enrollment of more than 12 million students are now operating under desegregation plans imposed either by the federal courts or HEW. Almost all of these include some from a busing students away from their neighborhood schools to other schools. The last clause of Section One is intended to allow the busing of students to public schools that offer special courses of instruction such as fine arts or vocational education.

The phrase "equal educational opportunity," in Section Two of the amendment now appears in many federal education statutes. It has been used by HEW and the federal courts to impose a vast array of educational practices on schools at all levels including the hiring and firing of teachers based on considerations of race and sex, the admission of students based on the same considera- tions, and special programs of instruction and construction of educational facilities for the handicapped.

The word "education" does not appear in the Constitution, nor has education ever been affirmed by the Supreme Court as a right guaranteed by the Constitution. The proposed amendment gives Congress, and thereby the federal courts, "equal educational opportunity" over "all students." How such wording would be interpreted by the federal courts is open to question. For instance, does Section Two give Congress and the federal courts the authority to mandate equality of educational financing in all the school districts of a state? More fundamentally, will the upgrading of such language from federal statutes to the federal constitution imply an increase of the federal role in education?

THE FEDERAL JUDICIARY AND BUSING

The path from the Supreme Court's landmark Brown v. Board of Education (1954) decision to court-ordered busing nationwide has been a complex and tortuous one. What follows is a brief summary of this path.

In the Brown decision, the Supreme Court struck down its own "separate by equal" doctrine as defined in Plessy v. Ferguson (1898) and declared that separate educational facilities are "inherently unequal." The Court based its decision on the Four- teenth Amendment, although admitting that the history of the amendment was "inconclusive" with respect to the area of segrega- tion. In its second Brown decision (1955), the Court declared that all federal, state, and local laws mandating dual school systems according to race were unconstitutional. Also unconstitu- tional were any administrative procedures that discriminated according to race. In effect, the Court became the overseer of every school district in the country by ordering local authorities to "make a prompt and reasonable" effort to end segregation, and by ordering the lower courts to "proceed with all deliberate speed" to end segregation in public schools. The Court stopped short of mandating integration of public schools, but stated that compulsory racial separation, that is, legally required racial segregation, must be ended.

The first federal school desegregation legislation was enacted in 1964 as part of the Civil Rights Act of 1964. It authorized the federal government, for the first time, to take a major role in desegregating schools. The authority was in several forms: authority to sue, to provide technical assistance and to withhold federal funds. The power to withhold federal funds became the primary tool for achieving school desegregation. The first enforcement efforts focused almost entirely on the dual school system of the South. "Freedom of choice" plans which permitted students to choose the school they wanted to attend but did not impose desegregation were accepted. But, by 1968, both HEW and the federal courts, impatient with the results under freedom of choice plans, began to narrow their acceptability.

Section 407 (a) of Title IV of the 1964 Civil Rights Act states that the Act did not authorize any U.S. official or courts to issue any order seeking to achieve racial balance in schools by transporting children from one school to another, nor did it enlarge the courts' existing powers to ensure compliance with constitutional standards. Nevertheless, the Supreme Court moved around this prohibition. In U.S. v. Jefferson County Board of Edu- cation (1966), the Fifth Circuit Court of Appeals began to elimi- nate the distinction between de jure segregation and de facto segregation. The court found that desegregation and integration were interchangeable terms, interpreted the Civil Rights Act as requiring integration, and declared that the schools must in fact be integrated if they were to be constitutional. The court struck down several freedom of choice school plans and the Supreme Court declined to review the case.

In Green v. County Board of New Kent County (1968), the Supreme Court disallowed as "intolerable" a school board plan to give parents freedom of choice to send their children either to a formerly all-white school or to a formerly all-black school. While foregoing the explicit language of the Jefferson County decision, the Court let it be known that all efforts to eliminate de jure segregation in laws and practices governing schools and efforts to eliminate any inhibitions of freedom were not enough if schools largely remained segregated along racial lines. In New Kent County, students were still attending schools that remained largely segregated due to housing patterns. The decision seemed to call for some remedy to eliminate the effects of such housing patterns. In 1971, the Supreme Court faced the remedy of busing and approved it. In Swann v. Charlotte-Mecklenburg Board of Education, the Court noted that the federal district courts had broWd- -equit- able powers "to eliminate from the public schools all vestige of state-imposed segregation" and that these powers include the use of mathematical ratios as starting points in shaping remedies and the assignment of students according to race. It also upheld the lower court's order to bus children to accomplish desegregation. In effect, the Court held that there was no other remedy for segregated schools other than busing and that Brown's original contention that de jure segregation was unconstiEu'tlonal was now meant that anything other than mandatory integration was unconsti- tutional. In 1973, the Supreme Court upheld busing in Denver, the first time that it had so held outside the South. Since the Swann case, school children have been bused by court order, or under impending threat of court order, in every section of the country.

The Court has shown a willingness to accept busing plans that transport students across city/county, city/suburbs lines even though this involves transportation between wholly separate political jurisdictions. But the Court has not always ordered that this be done. In Milliken v. Bradl2y (1974), the Court reversed an appeals court affirmation of a district court's order to bus students on a metropolitan basis in the Detroit area. The Court held that sufficient grounds of discrimination or segregation, based on state action or segregative intention by suburban officials, had not been established that would warrant the imposition of a metropolitan desegregation plan. In Bradley v. School Board (1974), the Court let stand an appeals court reversal of a dis- trict court's order for metropolitan desegregation/integration in Richmond for the same reasons. Yet, in Evans v. Buchanan (1975), the Court let stand a decision of a lower court that the purposeful segregation within Wilmington, Delaware, city schools affected the racial composition of county schools so that an inter-district remedy was required. A busing plan involving Wilmington and ten surrounding districts was ordered to be implemented.

On July 2 of this year, the Supreme Court upheld sweeping federal court busing orders in Dayton and Columbus, Ohio. The Court ruled that the two school systems had the "affirmative duty to eliminate the effects of past discrimination even if it no longer discriminates." In the dissenting opinion, Justice Powell wrote: "Parents are not bound by these decrees and may frustrate them through the simple expedient of withdrawing their children from a public school system in which they have lost confidence. The time has come for a thoughtful re-examination of the proper limits of the role of the courts in confronting the intractable problems of public education in our complex society." CONGRESS AND BUSING

Congress has never voted for the use of any federal funds in order to carry out court-ordered busing. Nevertheless, such funds have been expended by various departments in the executive branch. As a response to such unauthorized expenditures, there have been efforts in every congressional session of this decade to remove federal money from busing programs. Recent congressional action on this subject is outlined below.

1976. Congress included in the Fiscal Year 1977 HEW-Labor Appro- priation bill a prohibition of the use of federal funds to require directly or indirectly the busing of school children to any school other than the one nearest any student's home. A Senate floor amendment to the Justice Department Appropriations bill, prohibiting the Department from intervening in any suit involving school busing, was defeated on a 55-39 roll call vote. In addi- tion, a Senate attempt to remove the authority of the federal judiciary to order school busing lost on a 53-38 vote. As part of the revision to federal vocational education aid programs, Congress included a provision authorizing federal funds for the investigation of alternatives to court-ordered busing.

1977. Congress moved further in the direction of restricting federal funds for the use of busing. The Department of HEW had come up with the intepretation that previous restrictions on the use of federal monies to facilitate court-imposed busing did not rule out the transportation of students under reorganized grade structure plans pushed by HEW to mandate integration. In responsel Congress adopted an amendment to the HEW-Labor Appropriations bill barring the use of funds for pairing or clustering of schools of differing racial compositions. A bill limiting the power of the federal judiciary to order busing was reported by the Senate Judiciary Committee, but did not receive floor consideration.

1978. Congress continued its ban on the use of HEW-Labor appro- p'riations to assist court-imposed busing. The House passed an amendment to the Justice Department Authorization Bill that would have prohibited the Justice Department from bringing legal actions promoting school busing. The amendment was not agreeable to the Senate and was dropped in conference. An amendment to the Elemen- tary and Secondary Education Act restricting the authority of the courts to impose busing, offered by Senator Joseph Biden (D-Del.), lost on a narrow vote of 49-47. The defeat was the narrowest that any such measure have ever achieved. If it had passed the Senate, passage in the House would probably have been assured.

Outside of the courts, the impetus for the publicly enforced integration that logically resulted in busing to achieve this integration has come from the academic community. One of the most influential academics has been sociologist James Coleman of the University of Chicago. In 1966 Coleman issued his landmark study, "Equality of Educational opportunity," financed by a grant from the federal government. Its most widely noted conclusions were that the social composition of a school had more impact on student achievement than either resources or teaching methods and the lower-class black children scored somewhat higher on standard- ized tests in schools with a middle-class white majority than they did in schools where all the children were poor and black. Coleman's report has been probably the most powerful influence on public policy of any contribution from the academy in history. The conclusions of the report were circulated widely and incorpo- rated in a number of federal education programs. Coleman himself testified numerous times before congressional committees and in school desegregation cases in courts.

In April 1978, Coleman published the findings of a follow-up study in which he reported that he had been completely wrong in his conclusions. Coleman maintained that mandatory busing had been counter-productive in that it had led to a massive white flight from big city public schools, that mandatory desegregation had been accompanied by so much turmoil and violence in schools and by lowered educational standards as to negate any possible improvement in black student achievement, and finally concluded that the notion that there is something inherently wrong with all-black schools was racist at its core.

Most other investigations have concluded that court-ordered busing has substantially hurt the public schools in that it has led to a massive "white flight" from public schools. The degree of this flight as a direct response to busing is uncertain since it has been accompanied by a historical trend of the white middle- class moving to the suburbs for other reasons. But few today doubt that court-ordered busing has contributed to the fact that inner cities are becoming increasing black.

In August of 1978 David Armor, senior sociologist at the Rand Corporation, released his own report in which he attempted to measure white flight caused by busing or other court-imposed segregation plans as compared to the white flight that would have occurred for other reasons. Armor measured white flight over a six-year period in twenty-three Northern and Southern cities that had court-ordered mandatory busing. Against a projected white- student loss without busing that varied between 2 and 4 percent depending upon the city over the six-year period, the average rate of real white loss quickly rose toward 15 percent for the first year of busing, and then dropped to about 7 percent to 9 percent during the next three years. Armor proved that busing has been counter-productive in that the amount of desegregation -- defined as minority exposure to whites -- is declining and for some districts has fallen below the pre-desegregation level. He also claimed that court-ordered busing was producing increasing ethnic and racial isolation in almost all large school districts. Using figures supplied by each school district, some of the school districts Armor surveyed were the following:

Year of Percent Percent Court-Imposed White White Mandatory Enrollment Enrollement Desegregation in that in Involving Same 1977 Busing Year

Boston 1974 52.4 41.6 Denver 1974 53.8 47.0 Pasadena 1970 53.7 36.3 Pontiac, Mich. 1970 62.2 48.8 Springfield, Mass. 1972 67.6 56.5 San Francisco 1971 31.7 21.9 Detroit 1971 11.3 15.8 Prince Georges County, Md. 1972 73.5 56.3 Dallas 1971 55.0 42.5 Houston 1970 49.1 36.5 Jackson, Miss. 1970 39.1 29.8 Chattanooga 1971 43.8 33.0 Memphis 1972 42.0 29.2 Atlanta 1969 35.8 lo.6

The last successful discharge petition also involved an attempt to overturn a Supreme Court decision: the 1962 and 1963 rulings prohibiting prayer in public schools. In 1971, supporters of a constitutional amendment to permit school prayer managed to bring that issue to the House floor for a vote but failed, 240-163, to win the necessary two-thirds majority.

Constitutional amendments have been passed to overturn Supreme Court decisions four times in the past. The Eleventh Amendment was ratified in order to prevent any person from suing a state in the federal courts. It was adopted after the Supreme Court took jurisdiction over a case, Chisholm V. Georgia (1973), filed by a citizen of South Carolina against the state of Georgia.

The Fourteenth Amendment resulted from the rejection of the Southern doctrines of state sovereignty and succession. It made federal citizenship paramount, thus overriding the Supreme Court's construction of the Constitution in Dred Scott v. Sanford (1857), which made citizenship by birth dependent on state law.

The Sixteenth Amendment, establishing the federal income tax, overrode the Supreme Court's decision in Pollock v. Farmer's Loan and Trust Company (1895), which stated that a federal tax on incomes derived from properties was unconstitutional. The Twenty-Sixth Amendment extended the suffrage in both state and national elections to all citizens eighteen years and over. It was adopted after the Supreme Court, in Oregon v. Mitchell (1970), declared unconstitutional the provisions of the Voting Rights Act insofar as they related to state elections.

An unsuccessful campaign to overturn the Supreme Court's "one man-one vote" decision, Baker v. Carr (1962), occurred in the 1960s when a nation-wide drive in the state legislatures to call a constitutional convention fell one state shy of the neces- sary two-thirds number of states.

In addition to the school prayer, school busing, and reappor- tionment issues, Supreme Court decisions of the last two decades on abortion, "affirmative action" based on racial and sexual grounds, pornography, capital punishment, and rights of accused criminals have provoked varying degrees of social protest.

This has caused some to guestion whether the Supreme Court has gone beyond Chief Justice Marshall's statement that "It is emphatically the province and duty of the judicial department to say what the law is" (Marbury v. Madison, 1803) and moved into the realm of fashioning laws and public policies itself. Related to this guestion are two others. The first concerns control of the public purse. In various cases involving abortion and school busing, federal court decisions have included orders to expend public funds when such authority is written into every state constitution and the U.S. Constitution as exclusively one belonging to the legislature. The second involves the limits of judicial authority in this age of judicial activisism: that is, is the balance of power over social policy shifting towards judges, appointed officials with life-long tenure, and away from members of legislatures, elected officials whose actions are periodically answerable to the citizenry?

The federal judiciary stands alone as an advocate of school busing to achieve racial mixing. As already stated, such busing was specifically prohibited by provisions of the Civil Rights Act of 1964. Numerous congressional roll-call votes concerning the use of federal funds to assist busing have re-emphasized Congress, original intent. No President has ever publicly affirmed a position in support of busing. Public opinion polls throughout the 1970s have consistently demonstrated resounding disapproval of court-imposed busing. The most recent Harris Poll revealed that 85 percent of whites and 51 percent of blacks still oppose busing eight years after the Swann case made the issue a nation- wide concern.

The busing issue so radicalized normally progressive Boston that the city voted for George Wallace, who strongly opposed busing in his campaign, in the 1976 Massachusetts Democratic primary. In Los Angeles, the school board president, a supporter of busing, was recalled by citizen referendum in May of this year. Anti-busing refernda have been passed by the citizens of Florida and Washington in previous years. A similar referendum has qualified for the ballot in California this year and seems certain to pass.

As has already been shown, court-imposed busing seems destined to achieve precisely its opposite intent -- increasing racial isolation in schools -- along with increasing racial residential isolation in cities. As whites leave for the suburbs, cities are becoming impoverished because of the loss of tax income from the white middle class. The Supreme Court has said that it will approve busing of students between wholly different political jurisdictions. It seems that this can only result in increasing the abandonment of the public schools, with the result that an ever greater number of parents will be taxed to support public education while enduring the additional expense of sending their children to private schools.

An obvious casualty of busing has been the American tradition of local control of schools and school policy. Another imminent casualty would seem to be the very basis of the existence of local government if the federal courts proceed with cross- jurisdictional busing.


Gov. A. Linwood Holton escorts his daughter Tayloe Holton to the first day of class at John F. Kennedy High School in September 1970. (Photo by Librado Romero/The New York Times/Redux)

On Aug. 31, 1970, 5,000 white Richmond Public Schools students went missing. That number included a dozen white students registered for classes at Fairmount Elementary.

Some 800 black students didn’t answer attendance at their assigned schools, either.

They were not victims of a mass kidnapping but instead were kept from classes by their parents, who preferred to avoid sending their children across town on buses to schools where they’d be seen as unwelcome minorities.

Black parent and Richmond News Leader reporter Al Johnson stated, “We want neighborhood schools the same as white folk.”

Virginia Gov. Linwood Holton escorted his daughter Tayloe, 13, to the majority-Black John F. Kennedy High School.

These events came after the Aug. 18 ruling by United States District Judge Robert R. Merhige Jr. ordering Richmond to revamp plans for desegregation, requiring the busing of about 13,000 mostly secondary-level students.

This decision resulted from years of legal wrangling, vigorous debates, violence both threatened and real, and a relentless press by civil rights leaders and attorneys.

The course to integration began with the May 17, 1954, Brown v. Board of Education decision by the United States Supreme Court, which ruled that state segregation of public schools was a violation of the 14th Amendment and thus unconstitutional. Brown was not one case, but five, including Davis v. Prince Edward County, that had been bundled together to challenge segregationist laws. On May 31, 1955, the high court issued its “Brown II” decision, ruling that lower courts should oversee desegregation “with all deliberate speed.”

Robert A. Pratt notes in his book “The Color of Their Skin” that “ever since Brown II in 1955, Richmond’s school board, like other school districts throughout the South, had interpreted ‘all deliberate speed’ to mean ‘every conceivable delay.’ ”

An August 1956 special session of the Virginia General Assembly codified robust anti-Brown measures. U.S. Sen. Harry F. Byrd, a former governor, championed combating what he and others viewed as federal overreach. Byrd’s “massive resistance” was promoted by Richmond News Leader editor James J. Kilpatrick, who argued that local governments could “interpose” themselves between federal law.

In its May 27, 1968, decision in the case of Green v. County School Board of New Kent County, the Supreme Court ruled that “freedom of choice” plans, which theoretically aimed to integrate schools by allowing students to choose a school independent of their race, were a violation of Brown. In practice, similar to Richmond, choices made by the majority of whites and blacks in New Kent County wound up maintaining school segregation.

Children are escorted to a school bus in Richmond on Sept. 21, 1970. (Photo courtesy Richmond Times-Dispatch Collection, The Valentine)

Anti-busing demonstrators march along Franklin Street near Virginia Commonwealth University on Sept. 16, 1970. (Photo courtesy Richmond Times-Dispatch Collection, The Valentine)

The Green decision sent local school boards scrambling to create plans that would satisfy the courts. When Richmond annexed 23 square miles of Chesterfield County on Jan. 1, 1970, suddenly more than 10,000 suburban white students were supposed to attend Richmond Public Schools. Not coincidentally, the annexation also reduced the 52% Black population of Richmond to 42%.

On March 12, 1970, Merhige ordered Richmond to develop a new desegregation plan. In “Color of Their Skin,” Pratt explains how the school board, using federal guidelines, “devised a system of ‘grade pairing,’ allowing for Black and white schools in the same attendance zones to be ‘paired,’ with each school containing different grade levels.” Merhige advised the school board on June 26 that “Richmond’s history of residential segregation rendered the proposed ‘pairing plan’ unacceptable.” Pratt notes that a revised version presented on July 23 also proved unworkable, primarily because it continued to place almost 9,000 Black students in 13 elementary schools that were more than 90% Black.

On Aug. 18, Merhige ruled against the revised plan — and busing began.

The experience of teachers and students varied by school and situation. Few enjoyed a smooth transition.

By November 1970, the Richmond school board argued that despite its best efforts, desegregation couldn’t work without the cooperation of nearby Henrico and Chesterfield counties.

In January 1971, Merhige ruled that the achievements of the present plan were “less than remarkable.” On April 5, 1971, he ordered pupil and faculty reassignments and free citywide transportation. The most profound aspect was the extension of busing to all pupils straight down to kindergartners.

“I did what I did not only because it was the law, but also because I believed it was right. And for that I have no regrets.” —Judge Robert R. Merhige Jr.

Two weeks later, the ruling came down on the first busing case to reach the Supreme Court, Swann v. Charlotte-Mecklenburg Board of Education. The court approved extensive busing to promote desegregation.

On Jan. 10, 1972, Merhige, now with the Swann decision backing him, issued a 325-page opinion: Full desegregation of the schools necessitated the implementation of a single regional system combining the city of Richmond with Henrico and Chesterfield counties, to include busing across city and county lines.

Opposition arrived swiftly, and it was loud and vigorous. Picketers, including members of the Ku Klux Klan and American Nazis, came to the bottom of the driveway of Merhige’s house every Sunday. The family dog was tied up and shot (though it survived), and a guesthouse where Merhige’s 75-year-old mother-in-law lived burned to the ground.

Mark Merhige, then 11, attended the private Collegiate School, which caused charges of hypocrisy. The judge explained that his son had started there in kindergarten, and he saw no reason to change.

Judge Merhige remained steadfast and acknowledged in a 1987 interview, “At times it got awfully depressing. But I did what I did not only because it was the law, but also because I believed it was right. And for that I have no regrets.”

The landmark ruling was overturned when the U.S. Fourth Circuit Court of Appeals ruled that Merhige had exceeded his authority.

Judge Robert R. Merhige Jr. (Photo courtesy University of Richmond)

On May 21, 1973, the U.S. Supreme Court, which had provided Merhige with precedents for his decisions, upheld the Fourth Circuit in a split decision with Justice Lewis F. Powell Jr. recusing himself by citing a conflict due to his 1952-61 chairmanship of the Richmond School Board.

The court then invalidated most busing across city-county boundaries. City schools again became majority Black.

Merhige and the era of busing are detailed in a recently completed documentary titled “The Judge: Character, Cases and Courage,” produced locally by director Robert Griffith and artist Al Calderaro. In the film, constitutional scholar Rodney Smolla, dean of Widener University Delaware School of Law, observes, “I think had he not been overruled, we might be a different country today. I think racial progress and harmony, and the quality of our public school systems across the country, would’ve been much stronger if that pragmatic solution had been allowed to stand.”


On January 15, 1991, the United States Supreme Court issued an opinion lifting a lower court’s desegregation decree, and authorizing Oklahoma City schools to re-segregate into de facto one-race schools.

In 1972, a federal court ordered the Board of Education of Oklahoma City Schools to adopt a busing program to desegregate the city's public schools in compliance with the United States Supreme Court's desegregation decision in Brown v. Board of Education. The school board complied for five years and then filed a motion to lift the order. The federal court found that integration had been achieved, granted the motion, and ended the busing program.

In 1984, the school board adopted a new student assignment plan that significantly reduced busing and re-segregated Oklahoma City schools. Local parents of Black students initiated litigation challenging the new assignment plan and asking for reinstatement of the 1972 busing decree. In 1989, the United States Court of Appeals for the Tenth Circuit reinstituted the decree, and the school board appealed to the United States Supreme Court.

On January 15, 1991, the Court declared in a 5-3 decision written by Chief Justice William Rehnquist that federal desegregation injunctions were intended to be temporary. Despite troubling evidence that Oklahoma City schools were re-segregating under the district's new plan, the Court sent the case back to the lower federal court for assessment under a less stringent standard, which ultimately permitted the school board to proceed with the new plan.

Justice Thurgood Marshall—who argued and won the Brown case in 1954—wrote a dissent, joined by Justices Harry Blackmun and John Paul Stevens, arguing that a desegregation decree should not be lifted when doing so recreates segregated "conditions likely to inflict the stigmatic injury condemned in Brown." Justice Marshall argued that by reaching its decision, “the majority today suggests that 13 years of desegregation was enough.”

Learn more about how, to this day, public schools remain racially and economically segregated.


Contents

North Carolina was one of the more moderate Southern states, and its resistance to integration was much weaker than in most other areas of the South. After Brown, it had ended segregation with a school assignment plan based on neighborhoods that was approved by the Court. However, when Charlotte consolidated school districts from the city itself with a surrounding area totaling 550 square miles (1,400 km 2 ), the majority of black students (who lived in central Charlotte) still attended mostly black schools as compared with majority white schools further outside the city.

The NAACP Legal Defense Fund brought the Swann case on behalf of six-year-old James Swann and nine other families, with Julius L. Chambers presenting the case. Swann was chosen because his father was a theology professor, and was thus unlikely to be economically burdened by local retaliation.

In 1965, Judge J. Braxton Craven decided Swann v. Charlotte-Mecklenburg Board of Education in favor of Charlotte-Mecklenburg, because there was no requirement in the Constitution to act purposely to increase racial mixing.

After the Green ruling, the Swann case was filed again, and this time taken by Judge James B. McMillan as his first important case on the federal bench. McMillan had at one point been a public opponent of busing to integrate schools, but when the case was presented to him he said that the facts outweighed his feelings, and busing was the only way to fulfill the constitutional requirement of desegregation.

Experts from Rhode Island College were brought in for the Plaintiff's side to judge the effectiveness of the school board's new plan. From April to November 1969, McMillan repeatedly ordered the board to revise the plan. The Board eventually submitted a plan rezoning neighborhoods into pie-shaped wedges, where blacks living in the center of Charlotte would be divided up and distributed to outlying, formerly white high schools. The school board's plan required busing and would achieve a black population of 2-36% in all ten of the high schools. Due to the greater number of elementary schools, elaborate gerrymandering was required and would achieve greater integration, but would leave more than half of black elementary students at majority-black schools.

The Court rejected the Board's plan in favor of outsider Dr. John Finger's plan. The Finger Plan required busing of an additional 300 black students, established "satellite zones" and required pairing and grouping techniques to achieve even greater integration. As a consequence, McMillan became a local pariah. [2] Chambers' home, office and car were bombed when he first took up the case. [3]

When the case was appealed to the U.S. Court of Appeals for the Fourth Circuit, the case was heard en banc by six of the seven judges sitting on the court. [4] The seventh judge Judge J. Braxton Craven, recused himself due to him being the original trial court judge. The opinion was 3-2-1 that the restructured busing orders should be affirmed for older students, but that it be remanded for those of elementary school age. Two dissenters would have affirmed the whole decision, while one would reverse McMillan's ruling in its entirety. McMillan decided to follow his original plan for elementary school students after the case was remanded to him.

Justice Douglas had previously been strongly opposed to busing. The Court was urged to begin their term early to hear the case, but decided to wait until the first day of their new term to begin.

Despite his relative youth and inexperience, Julius Chambers argued the case, because of his intimate knowledge of the facts involved. Erwin Griswold, the Solicitor General of the United States, represented the federal government, advocating Nixon's “go-slow” policy. Though no official vote was taken, Chief Justice Burger and Justice Black wanted to reverse McMillan's order, while Justices Douglas, Harlan, Brennan, and Marshall wanted a strong affirmation of the order Justices Stewart, White, and Blackmun did not express a strong feeling either way. Douglas, Brennan, and Marshall were quite liberal, but Harlan was usually conservative. When Burger circulated his very grudging affirmation of McMillan that limited future action and action in other areas by the Court, he met strong resistance. Douglas, Harlan, Brennan, and Marshall all demanded revisions and circulated suggestions for alternate drafts. Justice Stewart also reacted strongly after carefully considering the facts of the case, and wrote a “dissent” that would have been the opinion of the court without revisions of Burger's drafts.

Burger revised the opinion five times, each time making a stronger affirmation of McMillan and incorporating the language of Harlan, Brennan, Stewart, and others into it. After the fifth draft, Justice Black threatened a dissent if the opinion was made any stronger an affirmation, and so a sixth and final draft was created that was close to what Justice Stewart had composed after the first conference. The final opinion was 9-0 affirming McMillan's order.

The decision led to the widespread use of busing to end segregation by federal judges in the South.

When the courts mandated that busing should occur to desegregate the schools, they also noted that one day when the school system was thought to be unitary, busing would end and the school board would be able to come up with a new plan which would best suit the education of students in Charlotte-Mecklenburg.

After busing was enforced in 1971, throughout the 1970s and the 1980s, Charlotte was known across the nation as the “city that made desegregation work.” It paved the way for many different school systems to use the busing plan to force integration in the school systems. [5]

However, due to the booming economy of the city in the late 1980s and early 1990s, Charlotte experienced a rapid immigration from the Northeast and the Midwest, which resulted in a decline of the acceptance of busing. In 1992, in response to these complaints, CMS created a managed choice plan to reduce the number of students being bused. This new choice plan revolved around magnet schools, making one-third of the schools in Charlotte-Mecklenburg either magnets or partial magnets, and each magnet had a quota of black and white students that were allowed to attend. But this didn't please many white families who were denied entrance into magnet schools that had fulfilled their quotas.

In 1997, a parent, William Capacchione, sued the school system when his daughter was denied entrance into a magnet school for the second time based on her race. [6] While the school system opposed the end of busing, Judge Robert D. Potter declared the mandate of a unitary system had been met and lifted the court order on mandatory busing by race or ethnicity. This ruling was upheld by the appeals court in Richmond, Virginia in 2000 and after the final appeal was declined to be heard by the U.S. Supreme Court, federal order of busing was ended in Charlotte-Mecklenburg and it was left in the hands of the city school board to decide how to redo the assignment policy for school attendance. [7]

The new assignment policy which was adopted in the fall of 2002 was known as the “School Choice Plan.” This new choice plan divided the city into four large attendance zones based on neighborhoods. Students were allowed to choose to stay at their neighborhood "home school," or they could rank their top three choices of any other school in CMS however they would only receive free transportation to their home school or any of the magnet schools in the district. If families chose their home school as their first choice, they were guaranteed that school otherwise they were entered into a lottery that gave available spaces in overenrolled schools. If people did not choose a school, they were immediately placed into their home school. After creating a variety of programs to inform families about the new plan, over 95% of the families in the Charlotte-Mecklenburg school system submitted choices for the new school year. [5]


The Case that Defined the School Desegregation Remedy

When people think of desegregation remedies, busing is likely the first thing to come to mind. Why? Because of Swann v. Charlotte-Mecklenburg, which was decided fifty years ago today.

The significance of Swann is difficult to overstate. Because busing became almost synonymous with desegregation, the case in some ways overshadows Brown v. Board of Education, which famously did not define desegregation. In fact, throughout the entire history of desegregation the Supreme Court never precisely defined what the word meant. Hence, it’s not surprising that it came to be defined by a particular remedy such as busing.

Swann is also the most successful example of judicially mandated metropolitan desegregation. However, by giving birth to busing it also eroded political support for desegregation, which contributed to the federal court’s withdrawal from the issue. The decision also thrust district court judges into managing the minutia of school district policy, a task which many judges proved to have neither the inclination nor the aptitude to do well.

Official portrait of Chief Justice Warren E. Burger, 1971. Library of Congress, LC-USZ62-60136 .

Understanding the successes and failures of Swann requires recalling a case decided three years earlier, Green v. New Kent County School Board (1968). In Green, the Supreme Court set in motion the principles that led to Swann. Primarily, the Court held that unlawfully segregated school districts had an “affirmative duty” to desegregate. That meant that they could not just adopt freedom-of-choice plans that left schools overwhelmingly one race regardless of the racial composition of the district. Instead, school districts had to adopt plans that demonstrably reduced racial isolation. For most southern school districts, adopting neighborhood attendance zones was sufficient. But not in Charlotte.

The Charlotte-Mecklenburg School District was enormous. Partly urban and partly rural, covering 550 square-miles, the district served 84,000 students, 29 percent of whom were black. However, most of those black students were concentrated in one quadrant of the district. Prior to Green the district had, under court order, adopted a desegregation plan focusing on geographic attendance zones and voluntary student transfers. However, over half the black students still remained in schools without any white students or teachers. Following Green, Federal District Court Judge James McMillan ordered a massive busing plan to eliminate those overwhelmingly one-race schools and have them match the 71:29 ratio of white to black students in the district.

One obstacle stood in the way of this plan, The Civil Rights Act of 1964. The act, which was really responsible for starting the process of desegregation after ten years of “massive resistance” to Brown, seemed to forbid both busing and the use of numerical disparities as a basis for judicial intervention. “Nothing herein,” Title IV of the act says, “shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance.”

Warren K. Leffler, [African American and white school children on a school bus, riding from the suburbs to an inner city school, Charlotte, North Carolina], February 21, 1973. Library of Congress, LC-DIG-ds-00762.

What happened in Swann’s wake ends up being most important. In Charlotte itself the results were largely positive. Unlike many “deep South” states, Charlotte’s immediate response to Brown was more moderate. And later, when civil rights activists pressed for more than symbolic and token desegregation, it found the white business community in the city largely supportive. Those leaders had ambitions to make Charlotte a major financial hub. Racial animosity, they realized, wasn’t good for business. Also, the fact that Charlotte consolidated its school district with the surrounding Mecklenburg County in 1960 limited the potential of “white flight”.

Those conditions, however, did not exist in most other cities and school districts that were forced to implement busing after Swann. Immediately following Swann, large majorities—75-90 percent—of white parents consistently expressed opposition to forced busing. Black parents also came to oppose busing. For a few years in the mid-70s and early 80s, support for busing crept above 50 percent for black parents, but by the mid-80s stable majorities of 55-60 percent opposed it. This opposition not only led to substantial white flight from school districts under busing plans but also prompted some middle-class “black flight” as well. White flight, of course, reduced the effectiveness of busing, and the overall departure of middle-class families left many districts with a reduced tax base and fewer parents with the background and resources to help maintain support for the school system.

Busing also had broader political implications. In Detroit, a district court judge consolidated all the metropolitan districts into a single district with large-scale busing. George Wallace rode a wave of animosity to that plan to an overwhelming victory in the 1972 Michigan Democratic Presidential Primary. That political backdrop was clearly looming over the Supreme Court’s 1974 decision in Milliken v. Bradley, which ruled that suburban school districts could not be compelled to participate in a desegregation remedy if they did not contribute to the constitutional violation. Instead, judges presiding over school desegregation cases had to rely on compensatory educational programs and magnet schools to create some integration in their districts. Thus, almost as soon as the court sanctioned busing, it began limiting its use. Swann then stands both as one of the 20th century’s most aggressive exercises of judicial power and as an exercise of power which eroded the political and social foundations of its ambitions.


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