VI. The Bleaching of Brown

As President Nixon's appointments to the Supreme Court “were designed to . . . rein in court-ordered busing,” he was surprised and disappointed by Swann. Nixon told his aides about his breakfast meeting with Chief Justice Burger and Attorney General John Mitchell three weeks before the Court issued its decision. “I lit into Burger. I said, ‘Now look here, I'll be honest with you, if you insist on busing . . . .’ So I was sorta disappointed.” Thereafter, in 1972, Nixon told Burger that “the people” had lost confidence as a result of the Warren Court's decisions. “They see these, you know, they see these hippies, and frankly, the Negro problem [,] . . . and then there's busing. That just drives them up the damn wall.”

A. The Burger Court Speaks Again

While Swann disappointed President Nixon, the Court's decision in Milliken v. Bradley did not. By a five to four vote, the Court, per Chief Justice Burger, held that lower courts had improperly ordered a multidistrict and area-wide remedy for de jure segregation in the city of Detroit, Michigan. In the absence of an interdistrict violation of the Constitution, “there is no constitutional wrong calling for an interdistrict remedy.” Accordingly, the challenged desegregation order covering the city of Detroit and fifty-three suburban school districts in the Detroit metropolitan area subjected to federal court control suburban school districts not shown to have engaged in intentional racial discrimination. In the absence of such a showing, a remedy for school segregation in Detroit could not extend to and require the performance of desegregating measures in and by the suburbs surrounding the city, Burger concluded. As the Sixth Circuit had found, this city-only remedy “would result in an all black school system [in Detroit] immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.”

In striking down the interdistrict remedy, Chief Justice Burger argued that that remedy was contrary to the principle of local control over educational matters. “No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to the quality of the educational process.” The consolidation of city and suburban school districts would require the “large-scale transportation of students” and “give rise to an array of other problems in financing and operating this new school system.” Questioning the competence of the federal judiciary to issue and supervise metropolitan-wide remedial orders, Burger determined that a federal district court acting as “a de facto ‘legislative authority”’ would be faced with “a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives.” (Recall presidential candidate Nixon's view that no federal court was “qualified to be a local school district and to make the decisions as your local school board.”

Decided twenty years after Brown I, Milliken was a significant development in the Court's school desegregation jurisprudence. The Court's ruling restricted “the ability of the federal courts to order multidistrict desegregation remedies in circumstances in which entire districts were racially homogenous” and ended, practically and effectively, “the possibility of integrated schooling in the central cities.” Whites who had engaged in post-Brown and government-assisted white flight and white avoidance now enjoyed a “suburban veto,” the “power to limit any education reform that would interfere with suburban autonomy.” Given that veto, “desegregation plans in urban areas were largely futile, for the simple reason that there were not enough white students left in public schools.” Milliken's insulation of suburban schools from judicial desegregation orders thus “gave suburban citizens more incentive to create their own separate school districts, and offered white parents in urban districts fearful of school desegregation havens of predominantly white schools to which they could flee.” Detroit is a glaring example of this reality: more than one hundred suburban school districts now ring the city, and the black-white student ratio in city schools, six to four in 1967, was ninety-one to four in 2000.

B. The Rehnquist Court's Resegregation Trilogy

In its “resegregation trilogy” of the early and mid-1990s the Rehnquist Court--on which sat several appointees of Presidents Ronald Reagan (who viewed school desegregation as a “‘failed social experiment that nobody wants”’ and George H. W. Bush (who favored a return to freedom-of-choice plans and were receptive to school boards' efforts to dissolve court-imposed desegregation plans.

In the first case of the trilogy, Board of Education of Oklahoma City Public Schools v. Dowell, the Court concluded that desegregation decrees were “not intended to operate in perpetuity.”

Dissolving [such] decree[s] after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.

District courts were instructed to ask whether the school board had complied in good faith with the decree, and whether the “vestiges of past discrimination had been eliminated to the extent practicable.” (That query seems to accept that some undefined quantum of prior discrimination may never be remediable or eliminable.) Affirmative answers to both questions would provide grounds for the termination of federal court supervision and monitoring of a school district's operational matters subject to the decree.

The second trilogy case, Freeman v. Pitts, held that a district court could end judicial supervision of certain discrete matters subject to a court-mandated desegregation plan where the school district had achieved compliance with respect to those, but not all, covered subjects. Accordingly, Justice Anthony M. Kennedy wrote for the Court, a “court in appropriate cases may return control to the school system in those areas where compliance has been achieved, limiting further judicial supervision to operations that are not yet in full compliance with the court decree.” Kennedy also stressed the importance of local control of schools. “Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system.”

Having decided that partial compliance warrants partial dissolution of desegregation decrees, Justice Kennedy set forth his and the Court's views on the meaning and significance of racial imbalance and residential segregation's relationship to school segregation. As for racial imbalance:

Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.

As for the “high correlation between residential segregation and school segregation,” Justice Kennedy reasoned that in a nation in which people move to different counties and states “it is inevitable that the demographic makeup of school districts, based as they are on political subdivisions such as counties and municipalities, may undergo rapid change.” He characterized residential segregation as “a product not of state action but of private choices” while at the same time recognizing that the “vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist.” Although “we cannot escape our history,” Kennedy wrote, “neither must we overstate its consequences in fixing legal responsibilities . . . . It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation. And the law need not proceed on that premise.”

Missouri v. Jenkins, the third case of the resegregration trilogy, concluded that a district court exceeded its remedial authority when, contrary to Milliken, it ordered the implementation of an interdistrict plan to attract nonminority students to a school district as relief for an intradistrict violation. Nor could the district court order an across-the-board salary increase for certain employees, the Court determined. That increase, “grounded in remedying the vestiges of segregation by improving the desegregative attractiveness” of the district, was “simply too far removed from an acceptable implementation of a permissible means to remedy previous legally mandated segregation.” The district court also erred, in the Court's view, when it required the state to fund remedial education programs until student achievement levels met grade-level national norms. Improvements in test scores were not required in order for the school district to achieve partial unitary status, the Court determined, and the achievement levels of minority students could be affected by factors beyond the school district's control. “So long as these external factors are not the result of segregation, they do not figure in the remedial calculus.”

The resegregation trilogy gave primacy of position to the principle of local control of schools. In the Court's view, dissolving decrees after a Court-determined reasonable period of time and following a school board's demonstration of a Court-determined level of compliance warranting dissolution appropriately returned operational and decisional control to school officials closest and most directly accountable to their communities (including officials who had resisted desegregation and integration “by recalcitrance, foot-dragging, and the litigation process itself”). Of particular interest is the way in which the Rehnquist Court “retreated to a Plessy-like formalism, first reducing Brown to a formula and then turning the formula into a departure rite by which the federal courts were to find racially-impacted ghetto schools ‘inevitable’ and terminate desegregation efforts with desegregation unachieved.”

The Rehnquist Court thus placed the issues of residential segregation and public school segregation and resegregation in the frame, not of state action and/or responsibility, but of private choices beyond the remedial powers of the courts. This framing move disconnected the school segregation and resegregation issues of today from the reality, staying power, and extant (not just vestigial) effects of residential segregation and hypersegregation originating in explicitly segregative policies promulgated, implemented, encouraged, and facilitated by governmental actors and acquiesced in by segregation- preserving and integration-resistant communities and individuals.

At the federal level, for instance, whites interested in moving to suburban homes in the 1940s and 1950s were assisted by the G.I. Bill and by loans and subsidies from the Veterans Administration (VA) and the Federal Housing Authority (FHA). (Interestingly, these governmental entities recommended the use of racially discriminatory restrictive covenants even after the Court outlawed such agreements in 1948. The Home Owners' Loan Corporation (HOLC) also “marked neighborhoods by race to determine their credit-worthiness. The practice of redlining by the government was amplified because private banks used the HOLC ratings in deciding whether to make loans.”

To simply label and treat this official and governmental conduct as a now inactive and irrelevant historical fact is to overlook or to remain ignorant of the reality that the “FHA's actions have had a lasting impact on the wealth portfolios of black Americans” who were “[l]ocked out of the greatest mass-based opportunity for wealth accumulation in American history.” Between 1934 and 1962, the FHA and the VA underwrote $120 billion in real estate purchases; less than two percent of that amount went to non-white families. As of 1993, almost forty years after the Brown I decision, eighty-six percent of suburban whites resided in communities with black populations of less than one percent. Today “the legacy of the FHA's contribution to racial residential segregation lives on in the inability of blacks to incorporate themselves into integrated neighborhoods in which the equity and demand for their homes is maintained.” Today the FHA, while doing “much good,” continues to do “much harm” given its promotion of “new housing over repairing existing housing, suburbs over central cities, private vehicles over public transportation, and uniform communities . . . over diverse ones.” Today state and (not or) private choices about the spaces and places in which racialized persons of color could or could not enter and could or could not remain are connected to present-day residential segregation and resegregation and the related and resulting racial isolation found today in many public schools.