One of the oldest legal maxims is that “hard cases make bad law.” Courts confronted with someone in an impossible situation may be sorely tempted to make a decision to relieve his distress, even if that requires bending the law in ways that may turn out to be catastrophic in the long run.
Brown v. Board of Education was a hard case in two very different senses. Segregation and discrimination against blacks, in the South especially, was a national scandal and an international embarrassment to the United States. Increasing numbers of people, even among white southerners, were beginning to question it. In Washington, D.C.—still very much a white southern city in mid-century America—segregated public accommodations were voluntarily desegregated two years before the historic 1954 decision. The public humiliation of blacks was clearly not something that could continue to be countenanced indefinitely. How to end racial segregation and discrimination, consistent with existing law and judicial precedent, was what made it a hard case.
What also made it a hard case was the virtual certainty of massive resistance among white segregationists who dominated the southern political, judicial, economic, and social scene. For the U.S. Supreme Court to issue a decree that would be evaded, nullified and mocked would be not only a bitter setback for the cause of civil rights but, in addition, a catastrophic undermining of the authority of the courts in general.
Within these severe constraints, the Supreme Court had to shape a decision for the case before them—a little girl named Linda Brown, denied admission to the all-white school near her home and forced to take a bus to an all-black school in another neighborhood. It was, of course, also the case of millions of other blacks, forced to endure a wide range of Jim Crow laws.
More than half a century earlier, another Supreme Court had said that “separate but equal” facilities were Constitutional and met the Fourteenth Amendment’s requirement of “equal protection of the laws.” Was the 1954 Court to say that the earlier Court was simply wrong, that the whole southern legal system was wrong—and indeed, that the “southern way of life” was wrong? And if so, on what authority—that is, on what authority that would be sufficiently respected to overcome the stubborn resistance of segregationists? It was, in short, a political as well as a legal dilemma. A strong dissenting opinion, even of one Justice, could fuel southern segregationist demagoguery and stiffen resistance for decades. The decision had to be one that all the Justices would accept, that much of the public could accept, and that the Executive Branch would enforce.
This was the hard case that provided both the law and the vision behind the civil rights revolution.
The Supreme Court did not simply repudiate their predecessors as wrong-headed. Chief Justice Earl Warren was also particularly concerned that the approach to the South be “non-accusatory.”1 Instead, he invoked something called “modern authority,” which had, by research, demonstrated that separate schools were inherently unequal in educational results. Therefore, it was now necessary to begin to desegregate the schools in order to meet the Fourteenth Amendment’s requirement of “equal protection” under the laws. Their predecessors could not have been expected to know what “modern authority” had so recently revealed, nor was it necessary to condemn the South for not having had this revelation earlier. Apparently nobody was really to blame—but the change had to be made anyway. It was a political masterpiece, under the pressures of the times. Whether it makes sense in terms of logic, evidence, or later consequences is another question.
Brown v. Board of Education contained not only the general civil rights vision but also added a new educational doctrine of its own—that the separateness of education necessarily rendered it unequal:
To separate them from others of similar age and qualifications solely because of race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.2
Warren then quoted with approval a lower court judge’s statement: “A sense of inferiority affects the motivation of the child to learn.” According to the Chief Justice, “this finding is amply supported by modern authority.” Following this logic, he concluded: “Separate educational facilities are inherently unequal.” Damage to the self-esteem and/or educational performance of minority children renders “separate but equal” education a contradiction in terms, even if the outward physical facilities or other tangible factors are comparable. This made it unnecessary to be “accusatory,” to go into the cynical abuse of the “separate but equal” doctrine in the South or to criticize the previous Supreme Court that created this legal fiction in innocence of “modern authority” for the Court’s psychological pronouncement.
“Modern authority” was revealed in a footnote to the Brown decision to be studies suggesting that black children held their own race in low esteem. Similar results have been found in other studies, in both the North and the South, in both segregated and integrated school systems, and among children too young to have attended, any school.3 Indeed, similar findings in both segregated and unsegregated schools had appeared earlier in the writings of the first “modern authority” cited in the Supreme Court decision, Kenneth B. Clark.4 Innumerable subsequent studies of the self-esteem of black youngsters in integrated school settings have shown no general pattern of higher self-esteem. Some studies show less self-esteem, some show more, and other studies show mixed results.5 “Modern authority” may have been more politically acceptable than a frontal assault on Jim Crow, but its factual and logical basis was hardly solid.
In the fervor of the times, this might have seemed like nit-picking, but in the longer run the assumptions embedded in this decision have continued to haunt school desegregation, and to embroil public schools in controversy, long after the desegregation of other American institutions has become an accepted fact. An airport, a hospital, or a sports arena is considered desegregated when everyone has an opportunity to use it, regardless of what proportions of people from what groups actually use it. But a school with exactly the same racial proportions as an audience attending an opera or passengers using Dulles Airport could easily be served with a federal court order to desegregate, while these other institutions would not be. The conflict between opportunity and results is nowhere more acute than in school desegregation cases.
Here again, it is necessary to emphasize that the Supreme Court’s doctrine was not limited to blacks but was a general pronouncement about the psychological and educational effects of one-group schools. Implicitly in logic and historically in practice, this meant that schools had to have racially mixed student bodies—or else they were unequal, and therefore violated the “equal protection of the law” required by the Fourteenth Amendment. Initially, this was not a conclusion stated by the Court or asked for by the NAACP attorneys. Indeed the attorneys denied any such claim in the Brown case.6 But as in the case of affirmative action, the explicit statements, or even honest convictions, of the initial civil rights advocates meant less in the long run than the implicit logic of the civil rights vision as it unfolded over time.
FROM BROWN TO GREEN—AND BEYOND
The Supreme Court began very cautiously to implement the Brown decision. Because of “the great variety of local conditions,”7 it postponed action after announcing its decision, and scheduled extensive discussions with state and local officials on how to implement its verdict. More than a year passed before they issued a new decree. In the meantime, various segregated school systems began voluntarily desegregating in Washington, Baltimore, Louisville, St. Louis, and in parts of West Virginia, Texas, Arkansas and Delaware.8 But in other places, particularly in the deep South, opposition was so adamant that, ten years after Brown, less than 2 percent of black children in the states of the old Confederacy had white classmates.9
In the early years, the Supreme Court proceeded warily to pick its way through the opposition, defiance, and evasions. The implementing decree of May 31, 1955 authorized the lower courts to issue orders and decrees to admit children to public schools “on a racially non-discriminatory basis with all deliberate speed.” This gave lower courts room to maneuver, to press for school desegregation where it looked as though judicial pressure would be sufficient, without requiring the courts to run into a brick wall where the local prospects were not promising. Although the Supreme Court later excluded “hostility to racial desegregation”10 as a factor to be taken into account, that was clearly a major—if not overwhelming—factor in decisions as to when and where “all deliberate speed” meant now. Finally, the decentralization of judicial action on racial desegregation defused the accusation that this was all the arbitrary doings of nine men in Washington.
Yet the decentralization was more apparent than real, more form than substance. By deciding which judges’ procedures and interpretations to accept and which to overrule, the Supreme Court continued making local as well as national decisions, while verbally seeming to grant broad discretion to the lower courts. For example when federal Judge John Parker ruled in 1955 that Brown required non-discrimination and no denial of public access to any public school on the basis of race—but not a positive attempt to mix races—his decision was allowed to stand, though it spawned innumerable evasions throughout the South.11 Yet by 1968, after the political climate had changed, this interpretation was repudiated entirely by the Supreme Court—and again, by making it appear to be a lower court decision.
The key case grew out of the Civil Rights Act of 1964. That Act was as unequivocal on school desegregation as it was on employment policy that equal opportunity did not mean prescribed results. The floor manager of the bill in the House of Representatives, Congressman Emanuel Celler, declared that this law contained “no authorization” for federal officials to move toward “achieving racial balance in given schools.”12 This view was echoed by other supporters of the Civil Rights Act, including Senate floor manager Hubert Humphrey, as they sought the votes for its passage.13 Humphrey assured the Senate that “while the Constitution prohibits segregation, it does not require integration.”14 But again, despite the assurance preceding passage of the Civil Rights Act, subsequent decisions by administrative agencies and the courts went directly counter to such assurances.
When the Fifth Circuit Court of Appeals declared that “we use the words ‘integration’ and ‘desegregation’ interchangeably,” its ruling was directly the opposite of the interpretation of all the other circuits and of those who wrote the Civil Rights Act. But merely by refusing to review the Fifth Circuit decree, the Supreme Court changed the whole meaning of desegregation, without having to be overtly involved. It then agreed to hear appeals from the other Circuit Court decisions, and quickly overruled their contrary interpretations as they were appealed.15 It was masterful as political maneuvering, whatever its merits or demerits as law or social policy.
Finally, in 1968, the Supreme Court struck openly and decisively for the racial mixing of schools. A Virginia school district that had formerly been segregated was operating with an open-enrollment or “free choice” system, in which it provided transportation to any child wishing to enroll in any school in the district. Only a fraction of the black children enrolled in the schools that had previously been all white and no white children enrolled in the black school. Whether this school district was “segregated” or not depended entirely on whether segregation was defined in terms of opportunity or results.
Because those who sued for a more sweeping racial integration order had conceded that their choice of schools was “unrestricted and unencumbered,” in the words of the Circuit Court of Appeals, it ruled against them in the case of Green v. County School Board of New Kent County. But the U.S. Supreme Court overruled the Circuit Court of Appeals. According to the Supreme Court, there was now an “affirmative duty” to eliminate “dual” school systems “root and branch.”16 The specific meaning of “dual school system” was clarified by the Court’s example that only 15 percent of black children attended the white school.17 In other words, statistical results defined segregation.
Green was in many ways as decisive a case as Brown. It opened the era of court-ordered busing to remedy racial imbalance. The Court and its supporters represented this as simply speeding up the process begun long before under the doctrine of “all deliberate speed,” which now was regarded as “no longer constitutionally permissible.” In reality, however, it was a substitution of a very different process—one in which children were to be assigned to schools by race instead of without regard to race. In yet another sense, however, all this was implicit in Brown from the outset. If it was the separation that made schools inferior, thereby violating the Fourteenth Amendment, then only “integrated” schools could provide “equality” in education. It may not have been politic to have said this openly from the outset, but that was the inherent logic of the argument. It was no accident that those who accepted the premises were led in that direction, whether they were in administrative agencies or the courts.
As the courts proceeded to order busing of a more and more sweeping nature, under a wider variety of circumstances, the original rationale of dismantling previously segregated school systems (as in Green) began to wear very thin. Compulsory busing orders were upheld by the Supreme Court even in states that had never assigned students by race and which even had legal prohibitions against racial assignments long before Brown v. Board.18 Clearly, racial mixing was considered “a good thing,” to be upheld by such ad hoc reasons as could be found.
Thirty years after Brown v. Board is surely not too soon to inquire into this assumption, which is crucial from the standpoint of logic, whether or not it was in reality no more than a convenient way to avoid being “accusatory” while striking down racial segregation.
ASSUMPTIONS VERSUS HISTORY
The central assumption behind busing was perhaps nowhere better expressed than by Los Angeles Judge Paul V. Egly, when he declared that minority students would be “irreparably damaged” if busing were even delayed, and that his task was to “make the most efficient use of increasingly scarce white students as possible”19 by spreading them around for the benefit of the many minority youngsters who constituted a majority of that city’s school children. Kipling’s doctrine of “the white man’s burden” was now transformed into a judicial doctrine of the white child’s burden—a doctrine that came very close to fighting racism with racism.
The actual history of racial and ethnic education in the United States has played remarkably little role in the sweeping theories and pronouncements behind court-ordered busing—except in the special case of blacks, where one-group schools were only part of a much larger and more complex system of oppression under Jim Crow laws. Yet, for purposes of busing orders, “minority” children include Hispanics and Asians—even though the latter often out-perform the white children who are depicted as an urgent necessity for their education. Yet, in another sense, inclusion of the Asians is perfectly consistent. Under the assumptions of the civil rights vision, Asians as non-whites should not be doing as well in school as they do, just as they should not be doing as well as they do in the job market. The question, then, is whether assumptions are to be accepted for their plausibility and their conformity to a larger social vision, or whether even the most plausible and satisfying assumptions must nevertheless be forced to confront actual facts.
The most casual knowledge of history shows that all-Jewish, all-Chinese, or all-German schools have not been inherently inferior. The more general question is whether (1) ethnic minority youngsters in general perform better when scattered among the general school population or when concentrated in their own schools, and (2) whether the educational disparities found between segregated blacks and whites are of a different magnitude than educational differences found between other ethnic groups living in the same neighborhoods and going to the same schools.
Data collected for several American ethnic groups, and going back several decades, show that youngsters of Mexican, Chinese, American Indian, and Puerto Rican ancestry scored just as high (or higher) on tests when they went to schools that were virtually all of their own group as they scored in society at large.20 The same data also showed test score differences between Japanese American and Mexican American youngsters attending the same schools to be as great as those between blacks and whites attending segregated schools in the South.21 Even larger differences were found between Jews and Puerto Ricans attending the same school over a period of twenty years.22 Moreover, differences between some all black, legally segregated schools were as great or greater than the average difference between blacks and whites in segregated schools.23
In short, group disparities and even intragroup disparities are both large and commonplace, whether or not segregation is involved. In the early twentieth century, Jewish and German youngsters in New York City completed high school at a rate more than one hundred times that among Irish and Italian youngsters.24 Chinese and Japanese school children were at one time segregated both de facto and de jure in California,25 yet they outperformed white children—and largely still do.26
THE TANGLED WEB
The tortuous evolution of the law from Brown to Green and its sequels has been a painful reminder of the truth of Sir Walter Scott’s immortal lines:
Oh, what a tangled web we weave,
When first we practice to deceive!
That the deception may have been for noble purposes and under dire stresses has not prevented Brown v. Board from leading to the tangled web of school busing. Psychological doctrine, without foundation in logic or law, was used to circumvent the wrath of segregationists. But this doctrine, once conjured up, has taken its own course—and has also taken its toll on the school systems and on the social fabric of the nation.
The case against segregation is that it is both wrong and socially dangerous for the state to classify people by race for different treatment. The pretense that “modern authority” provides a different rationale was an expedient that has continued to haunt school desegregation and keep it embittered and counterproductive. Other institutions have been desegregated years ago with nothing like the social malaise that surrounds busing. But desegregation for other institutions means simply opening the doors to all, regardless of how many from what groups choose to come in. Other institutions do not need to follow the theories of “modern authority.”
By logically basing its decisions on the unsubstantiated conclusions of selected intellectuals—whatever it may have been based on in reality27—the Supreme Court set a precedent that continues to dominate busing cases. In such cases, “experts” continue to weave elaborate webs of fragile plausibilities, complete with graphs, equations, jargon—and contradictory conclusions. Ironically, the chief authority cited in Brown—the study by Kenneth B. Clark—has been devastated by later criticism from other scholars,28 and was regarded as a “gimmick” even by NAACP lawyers in the case, one of whom in later years admitted: “I may have used the word ‘crap’.”29