Busing the Suburbs: Milliken v. Bradley

Brown v. Board of Education’s twentieth birthday was marked by blacks with mixed emotions. Yes, there had been conspicuous successes. Southern schools were increasingly integrated; Negroes had become more active politically; public facilities now opened to black and white alike; more federal programs attacked black poverty and illiteracy; job opportunities and income levels, though still behind those of whites, had risen appreciably; and, most important, blacks had gained in racial pride and self-respect. Yet something lacked. Few causes had ever had more federal energy thrown behind them than racial equality, yet the job remained undone. And there was uncertainty and suspicion over what the future held. “The question,” wrote Roger Wilkins in May of 1974, “is whether the momentum generated by the activities of the last 20 years . . . will almost automatically lead to racial justice in this country, as some whites seem to think, or whether, as most blacks hold, the largest and hardest job is yet to be done, and whites have quit the game before the first quarter has even ended.” Indeed, the hard part did lie ahead. Metropolitan areas, where by 1970 nearly three-quarters of all blacks lived, still had the most rigidly segregated school systems. And one-third of America’s black population remained desperately impoverished. The legal and economic gains propelling more and more blacks into middle-class ranks were themselves a mixed blessing. “The real danger,” noted black economist Robert Browne, “is that an enormous gap will develop between the blacks who have, and those who don’t. Then we’re on our way to having a permanent black underclass. That would be intolerable.” Brown’s twentieth anniversary came and went with Richard Nixon still President, and still, to blacks, distant and indifferent. His southern strategy dismissed the black vote; his domestic advisor had counseled “benign neglect” of black problems; and his lieutenants dismantled “black” federal programs only barely begun. The Departments of Justice and HEW now whistled white tunes. “By 1971,” contended Gary Orfield, “it was clear that HEW had given up its mission of bringing the nation’s public schools into compliance with constitutional requirements for desegregation.

Desegregating the South, 1955-1970

Southern school desegregation after Brown progressed through four successive stages. The first might be termed absolute defiance, lasting from 1955 until the collapse of Virginia’s massive resistance in 1959. The second was token compliance, stretching from 1959 until passage of the 1964 Civil Rights Act. With that act, a third phase of modest integration began with the efforts of southern school officials to avoid fund cutoffs by the Department of Health, Education, and Welfare. The 1968 Supreme Court decision of Green v. County School Board commenced a fourth phase of massive integration during which the South became the most integrated section of the country. Yet even as the fourth phase developed, a fifth—that of resegregation— was emerging in some southern localities. Breaks in history, of course, are never so neat as their chroniclers might wish. During the defiant stage, for example, North Carolina, Tennessee, Texas, and Florida practiced token compliance. And during much of the token compliance stage, Mississippi, Alabama, and South Carolina practiced total defiance. The different phases thus express only regional momentum as a whole and not the progress, or lack thereof, of a particular state. Even as a gauge of regional momentum, moreover, these phases are imperfect, given wide differences in temperament between the Deep and Upper South. These differences, particularly at first, were important. “In terms of immediate progress toward desegregation in the South,” noted Numan Bartley, “there was precious little to choose between the complex machinations of upper South states and the bellicose interposition of Virginia and the Deep South. But in terms of the future of the Brown decision, the difference was considerable. States of the upper South, with the exception of Virginia, accepted the validity of the Supreme Court decree and aimed to evade its consequences; Deep South states refused to accede any legitimacy to the decision.” Prior to the Kennedy presidency, this division “helped to keep alive the principle of Brown v. Board of Education in the South.” From 1955 to 1968 the Supreme Court remained largely inactive in school desegregation.

The Opinion

To know that Brown was a great occasion, one need only think back on the advocates. The old order crumbled, but not without eloquence. Indeed, at the oral arguments in Brown, John W. Davis may have mounted segregation’s last memorable defense. He was eighty-years old at the time Brown was last argued, and his voice and memory had begun to fade. “Some of his friends,” reported Time, “were sorry to hear him, at twilight, singing segregation’s old unsweet song.” Yet he remained the Supreme Court’s great advocate, not only of his day but, perhaps, of all time. Like a rock he stood for segregation: . . . “If it [integration] is done on the mathematical basis [in Clarendon County, South Carolina], . . . you would have 27 Negroes and 3 whites in one schoolroom. Would that make the children any happier? Would they learn any more quickly? Would their lives be more serene? . . . . . . . Would the terrible psychological disaster being wrought, according to some of these witnesses, to the colored child be removed if he has three white children sitting somewhere in the same schoolroom?” . . . Like Robert E. Lee, Davis went the path of ennobling defeat, a testament to the South’s ability to recruit men of character and principle to its most woeful cause: . . . “Let me say this for the State of South Carolina. It did not come here, as Thad Stevens would have wished, in sackcloth and ashes. . . . It is convinced that the happiness, the progress, and the welfare of these children is best promoted in segregated schools.” . . . And he summoned the wisdom of the ages to his side: . . . “Somewhere, sometime, to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance. . . . As it had to Lee, the struggle and the defeat ultimately exhausted Davis.

As Brown Saw the Problem

There is always a nostalgia for simple times past, times when the knight on a white horse rode forth to save the beautiful princess from the bad guys. Never mind that the princess had no defensible right to her riches, that the bad guys had more than sufficient cause for redress of their grievances, or that the knight was more interested in the protection of privilege than of virtue. So it was that when the South rode forth to save segregation it understood itself to be defending the memory of the ante-bellum South—not the ugliness of slavery but all the beauty that had long been gone with the wind. But Brown v. Board of Education attacked one simplistic view with another. Surely segregated schools were wrong; no number of Old South choruses could change that. But, on the other side, ghetto riots, school-busing controversies, and charges of reverse discrimination had not yet appeared to cloud the nation’s vision. For the most part, Brown was a time of innocence, when men of new dreams attacked the old dreams that had held back the nation’s rendezvous with racial justice. Simplicity of analysis is the father of moral reform. Unfortunately, it can also sire deep trouble. Some of Brown’s assumptions about race seem naive today, quite sadly so. In this naiveté, the Court was not alone; it merely reflected the thinking on race else- where in the land. But the naive assumptions on which Brown was based were, in time, to bring Americans not only hope and progress in their race relations but also shock, disappointment, and eventually renewed despair. The Supreme Court first sanctioned “separate but equal” in public transportation. Its demise, on the other hand, came in public education. The setting was important. For Brown’s faith in the power of education was touching in its simplicity: . . . Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. . . .

The Court Redeemed

Everyone understands that Brown v. Board of Education helped deliver the Negro from over three centuries of legal bondage. But Brown acted to emancipate the white South and the Supreme Court as well. Not that the South immediately recognized Brown as a deliverance from economic stagnation, moral debility, and sectional isolation, a deliverance that would end with the installment of one of its own in the White House by 1977. And the Court only barely acknowledged in Brown the full weight of history from which it was itself redeemed. Indeed, the true story of the Court’s own past attitude toward the black man remains one of the deafening silences of the Brown opinion. For half a century after the Civil War, the Supreme Court had, in effect, told the Negro to seek solace not in the law of the land but, like Stephen Foster’s Old Black Joe, in cotton fields, mournful song, darkey friends, and the hereafter. It was President Lincoln who issued the Emancipation Proclamation and Congress that moved to secure Negro rights in the South with no fewer than three Constitutional amendments and four Civil Rights acts shortly after the Civil War. Throughout this period, the Court was eyed distrustfully. The Radical Republicans were “aware of the power the Court could exercise. They were for the most part bitterly aware of it, having long fought such decisions as the Dred Scott case.” Radicals such as Congressman Thaddeus Stevens of Pennsylvania probably “had little hope that the Court would play a role in furthering their long range objectives.” What hopes they did have centered on those sections of the post-Civil War amendments permitting Congress to act through “appropriate legislation.” In 1865 the Radicals sensed a long-awaited opportunity. Many a proud southern planter was left to his ashes and rubble, to scorched earth and wistful dreams. “The Old South,” wrote one observer in 1870, “has gone ‘down among the dead men’. . . . For that vanished form of society there can be no resurrection. . . .”

Busing Moves West and North: Denver and Boston

Busing students for integration did not please Senator John C. Stennis of Mississippi. “[P]arents,” said he, “are not going to permit their children to be boxed up and crated and hauled around the city and the country like common animals.” Senators thinking there was public support for busing ought to “get [their] ear a little closer to the ground.” To help make his point, Stennis and other southern Senators sought to require that new federal desegregation guidelines be enforced uniformly across the country or dropped altogether. Their strategy was simple: to arouse racial feelings in the North and bring the whole desegregation effort to a screeching halt. “If you have to [integrate] in your area,” Stennis informed his northern colleagues, “you will see what it means to us.” On February 18, 1970, the Senate adopted the Stennis amendment, thanks largely to a speech by Abraham Ribicoff of Connecticut charging the North with “monumental hypocrisy” in condemning segregation in the South while tolerating it in its own backyard. Senator Ribicoff, predictably, was denounced for playing into southern hands. But some in the North felt he had “done a rare and useful thing: He has told his colleagues the truth, which is that many of them would rather flay the dying carcass of southern segregation than face the racism in their own bailiwicks.” Swann had flayed that carcass roundly. The case, said the NewYork Times, reflected “the Court’s belief that the school authorities of Charlotte, N.C., and other Southern districts, have openly defied the 1954 Supreme Court ruling that outlawed the maintenance of dual school systems.” That, precisely, was Swarm’s viewpoint. The Court noted that it dealt only with school systems having a “long history” of official segregation. It cited the traditional precedents of southern recalcitrance, expressed impatience with the South’s “dilatory tactics,” and spoke to all the world as if the transcendent issue was how finally to bring the South into compliance with Brown. It implied that southern and northern racism were different animals, that the South practiced an evil segregation known as de jure, while that of the North was more “natural,” de facto.

“All Deliberate Speed”

A Negro child—let us call her Mary Jones—entering first grade that fall of 1954 probably had her thoughts elsewhere than on Brown v. Board of Education. Whatever she might have heard about Brown was less absorbing than her new teacher and schoolmates and the novel environment of the school-yard. And it was just as well. This noisy crowd of children would be together for years to come, adding and subtracting, reading and writing, studying maps and pictures of faraway lands. Twelve years later, at graduation, some of Mary Jones’s first grade friends would still be standing beside her. Chances were, however, there would be no white faces among them. And chances were, too, that the best jobs or colleges did not await them. But they would scatter all the same, many for whatever labor the northern metropolises might hold. Because as Mary Jones and her friends would begin to sense more fully with each passing year, Brown v. Board of Education had scarcely mattered. A generation of black schoolchildren in the South—Mary Jones’s generation—had grown up and graduated after Brown in segregated schools. Where during this time, one might ask, was the United States Supreme Court? And the answer, not much exaggerated, is that from 1955 to 1968, the Court abandoned the field of public school desegregation. Its pronouncements were few, given the proportions of the problem. And its leadership was almost nonexistent. The question of history is whether the Court’s low profile can ever be adequately justified. The next two chapters discuss the Supreme Court’s approach to southern school integration in the years after Brown. It is not a conventional discussion, in part because the school cases were not conventional decisions. There did, of course, develop over time a set of constitutional principles concerning school desegregation. But the principles themselves were often creations of events beyond the courtroom: the South reacted to Court rulings, the Court, in turn, responded to the South. No set of cases, in fact, better illustrates the non-jurisprudential side of the Supreme Court’s job.

The Decision

Thrust and parry, charge and counter-charge, a duel of minds and morals dominated the long year before Bakke. Yet no decisive advantage was ever won. Perhaps there has never been a case before the Supreme Court with opposing arguments of more equal legitimacy. The Court’s own task in Bakke was to avoid a conclusive outcome. It must not, in this most divisive of cases, hoist the arms of a victorious contestant. Meg Greenfield of the Washington Post prayed the Supreme Court “will find a way to blur the edges of the controversy and reaffirm the important values raised by both sides. You say that is fudging the issue? Fine. It ought to be fudged.” The Court did just that. If Brown was a great moral blow, Bakke was a brokered judgment. The Supreme Court offered “a Solomonic compromise,” in which “the nine justices spoke in many voices, a chorus of competing viewpoints adding up to a wellmodulated counterpoint.” The Court struck down the Davis program with its “specified number of [minority] seats” but upheld the use of race or ethnicity as “a ‘plus’ in a particular applicant’s file” so long as “it does not insulate the individual from comparison with all other candidates for the available seats.” QUOTAS: NO / RACE: YES capsuled the cover of Time magazine. Because Bakke’s exclusion was to all appearances the result of Davis’s unlawful program, the Court ordered his admission. “Mr. Bakke won, but so did the general principle of affirmative action,” wrote Anthony Lewis. “That was the comforting paradox communicated to the world.” The Court in Bakke tried to keep faith with Brown. To the university, Brown stood for minority educational opportunity, “but implementation of the commitment expressed in Brown has taken years and is even today not complete.” To others, Brown stood for the ideal of color blindness: “It must be the exclusion on racial grounds which offends the Constitution, and not the particular skin color of the person excluded.” Bakke stood for both, perhaps, or for neither. It attempted, at least, to bridge the unbridgeable: the disparate legacies of Brown.

The Argumen

At first glance Allan Bakke seemed to be just another ordinary citizen whom landmark litigation was about to cast up from obscurity. The fortuity of other Supreme Court decisions had earlier taken Linda Brown, Clarence Earl Gideon, and Danny Escobedo and made them household names for a spell. Now the Court would do so for Allan Bakke. But, in fact, in at least one significant aspect Bakke was different. For years the focus of the Constitution had been the underside of American life. The Court had reached into shabby schools and mean alleys to succor the lowly, the despised, the dispossessed. One recalls Linda Brown, daughter of a welder on the Rock Island Railroad, standing plain-dressed before the drab edifice that was the segregated Monroe School in Topeka. Or Clarence Earl Gideon, the drunken woebegone from the Florida panhandle whose dogged requests for a lawyer became one of the most significant criminal cases of our century. The Constitution, it was thought, might help those who could not help themselves. But Allan Bakke did not exactly fit the mold. He had blue eyes, blond hair, and Norwegian ancestry, and stood just under six feet tall. Above all, Bakke was a structured, shaped-up person. He struck Dr. Theodore West of the Davis Medical School as “pleasant, mature . . . tall and strong and Teutonic in appearance . . . , a believer in personal health and fitness; he is careful about his diet and vices, runs every day and is generally interested in improving his actuarial statistics.” But another admissions officer thought him “humorless” and “zealous,” like a “character out of a Bergman film.” Bakke was never especially wealthy or advantaged. His was a storybook life of middle-class virtue. His father was a mailman, his mother a teacher. Bakke himself attended the University of Minnesota, majored in mechanical engineering, and earned just under a straight A average. To help finance his education, he joined the Naval Reserve Officers Training Corp., then fought after graduation as a Marine captain in Vietnam.

To Bus or Not to Bus

The Supreme Court in Swann drove the yellow school bus down the road of racial reform. And a bumpy journey it would prove to be. Why, one wonders, did the Court choose busing among all the alternatives available? Why, moreover, was that choice unanimous? Why, lastly, had several justices even swallowed their personal misgivings to join the opinion? For the Court’s commitment to this fateful step, there exist various explanations. One is that the Court never anticipated just how much opposition compulsory busing would provoke. Northern sentiment had not yet been aroused at the time of Swann; South Boston was but a speck on the racial horizon. The justices might still have believed opposition to busing just another eruption of the same southern temper that had produced Little Rock, Prince Edward, and the ugly happenings at Lamar. By 1970, moreover, the Court was most impatient with the South and more than a little embarrassed that sixteen years after Brown the task of southern integration remained incomplete. Thus Swann seemed the final step in the South’s subjugation. That busing would soon become the hottest issue of national domestic politics, the justices had not as yet fully foreseen. There was more to the Court’s approval of busing than integrating the South. Green had whetted the Court’s appetite for numbers. Black-white percentages at last gave the Court a concrete measuring rod, an objective determinant of a school board’s good faith. If one’s goal for schools was statistical racial balance, busing seemed the most direct way to achieve it. In fact, busing seemed the only way to achieve it in the urban metropolis where the races lived largely apart. But something more profound motivated the Court’s probusing stance in 1971: a mystical force in the catacombs of the Supreme Court known as the spirit of Brown. Brown’s legacy was a special race consciousness, an understanding among justices that blacks were henceforth to enjoy constitutional priority.