Common Ground (48 page)

This so-called Parker Doctrine was seized on by other Southern courts as a rationale for approving various evasive techniques, among them “freedom of choice,” which permitted black and white children to attend any schools in their districts so long as there was room. In theory, at least, that was desegregation. In practice, it was not. Few black families would take the initiative to send their children to predominantly white schools where they might be in a
vulnerable minority, particularly when parents feared that whites might retaliate against their jobs, their homes, or their persons.

For nearly fifteen years after
Brown
, “freedom of choice” and its variations—“open enrollment” and “local option”—frustrated school desegregation in districts throughout the South. Not until 1968, in
Green
v.
County School Board of New Kent County, Va
., did the Supreme Court finally put the Parker Doctrine to rest. “Freedom of choice” in New Kent County, the Court declared, “operated simply to burden children and their parents with a responsibility which
Brown II
placed squarely on the school board.” It was not enough to eliminate assignment by race, the Court said. Boards which had operated dual systems were “charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” The object, the Court said, was not a mere cleansing of the statute books, but results in the schools.

Up to that point, virtually all school segregation cases had come from rural school districts where blacks and whites lived side by side as they had since antebellum days. In such districts, desegregation could usually be accomplished merely by assigning children—black and white—to the school nearest their homes. In
Swann
v.
Charlotte-Mecklenburg
(1971), the Supreme Court finally came to grips with the “flinty, intractable” problems of desegregating a major urban area—the most populous school district in North Carolina, with some 83,000 pupils. Since blacks and whites in Charlotte and surrounding Mecklenburg County generally lived in separate neighborhoods, assigning students to the nearest school would only ensure that most of them continued to go to school with children of their own race. In
Swann
, the Court held that, everything else being equal, students should be assigned to the school nearest their homes, but “all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation.” In such districts, the very residential pattern would presumably have been influenced by the location of segregated schools, black neighborhoods often clustering around black schools, white neighborhoods around white schools. Thus, to assign students by neighborhood would perpetuate the effects of the dual system. Since the Court in
Green
had required a “root and branch” extirpation of such systems, it ruled in
Swarm
that district courts could order a variety of measures, including those which were “administratively awkward, inconvenient and even bizarre,” to accomplish that end. Specifically included in the catalogue of approved means was the busing of children from one neighborhood to another.

But sweeping as such an edict was,
Swann
had much less national impact than might have been expected. For though the justices might pretend otherwise, legally mandated segregation—as the Court defined it up to that time—was almost exclusively a sectional problem, a Southern problem. Yet Southern spokesmen, notably Senator John Stennis of Mississippi, were pointing out that school segregation existed in the North too, achieved there merely by
different means. Even Senator Abraham Ribicoff of Connecticut, a prominent Northern liberal, indicted his own region for “monumental hypocrisy.” Such critics noted that because Southern blacks and whites had always lived adjacent to each other on plantations or tenant farms, the state had had to enforce segregation in order to limit social contact between the races. No such legislation had been needed in the North, where blacks and whites, since colonial days, had tended to live separately. There was some truth to that old bit of Negro folk wisdom: In the South, the white man doesn’t care how close you get if you don’t get too high; in the North, the white man doesn’t care how high you get if you don’t get too close. But the effect on school attendance was much the same in both places: whether by law or by neighborhood, whites and blacks went to school separately. Why, the South now began asking, should the courts treat the Northern form of segregation any differently than they did the Southern?

The same question came to preoccupy the NAACP and particularly its general counsel, Robert Lee Carter, who in the legal attack on “separate but equal” had been Thurgood Marshall’s principal lieutenant. For years they had worked closely together, but gradually Carter had grown resentful of the older lawyer—a friction exacerbated by the disparity in their backgrounds. Marshall’s parents were each half white, and young Thurgood had grown up in the conservative mulatto aristocracy of Baltimore, at that time very much a Southern city. That experience did not leave Marshall an Uncle Tom, but he was a cautious, deliberate man who took orderly steps toward a carefully conceived goal. Bob Carter, on the other hand, was a dark-skinned product of Newark’s Central Avenue ghetto—one of the very few NAACP leaders of that vintage to have grown up in the North, which left him with an acute resentment of Northern white hypocrisy. More a hot-blooded advocate than a cool analyst, Carter had always been temperamentally disinclined to settle for half measures.

In the early 1960s, after leaving Marshall’s Legal Defense Fund and moving over to the NAACP proper, Carter established his own legal office and launched a novel assault on Northern segregation. He set out to show that racial segregation in and of itself—regardless of its cause—was unconstitutional. Attacking at its heart the Court’s time-honored interpretation of the Fourteenth Amendment, Carter tried to demonstrate that the equal protection clause not only required an end to state-enforced school segregation, but actually conferred a right to an integrated education. It was a characteristically bold departure, a brave raid on the very heart of the Northern defenses, and it failed. In three separate suits in three Northern cities—Gary, Cincinnati, and Kansas City—Carter’s theory was rejected, not only by Courts of Appeal but later by the Supreme Court. Although the Court never wrote a full opinion on the matter, its affirmations of lower court opinions made clear that it was unwilling to take that broad a step away from its traditional view of the Fourteenth Amendment. By the mid-1960s, the failure of this venture had left the civil rights movement feeling mortally wounded. With the Court apparently
accepting
de facto
segregation, the nation seemed doomed to a double standard which could only become increasingly embarrassing to advocates of desegregation. To many able attorneys, it looked as if the assault on Northern school segregation had reached a dead end.

But cooler, more analytic lawyers at the Legal Defense Fund—notably Jack Greenberg, who succeeded Marshall when he went on the Supreme Court in 1967—saw a different route to desegregation in the North. Greenberg and his colleagues harked back to a line of lower court cases which had shown that the Court’s definition of “state action” might be broadened beyond explicit statutes to include a whole range of subtle techniques used by Northern school boards to reinforce and maintain school segregation. In Hillsboro, Ohio, in 1956, New Rochelle, New York, in 1961, and South Holland, Illinois, in 1968, federal courts had found that schools could be effectively segregated by gerrymandered districts, selective transfers, discriminatory feeder patterns, and the like. Where there was intent to segregate, “it makes no meaningful difference whether the segregation is maintained directly through formal separation, or indirectly,” wrote Judge Irving Kaufman in the New Rochelle case. “Constitutional rights are determined by realities, not by labels or semantics. The Supreme Court has affirmed that courts must look through the guise in which school officials seek to clothe their unconstitutional conduct.”

By 1972, when Arthur Garrity began hearing the Boston case, the Supreme Court had not yet ruled specifically on this emerging lower court reinterpretation of “state action” (although lawyers and judges were eagerly awaiting the Court’s decision in a Denver case which it had accepted for review). Lacking a definitive Supreme Court precedent on which to rely, Garrity studied the Gary, Cincinnati, and Kansas City cases on the one hand and the Hillsboro, New Rochelle, and South Holland cases on the other. But the case which weighed most heavily on him was the only school desegregation suit tried by a federal court in Massachusetts since the
Brown
decision, a case decided by his colleague on the Boston bench George C. Sweeney, and reviewed by the same First Circuit Court of Appeals that would hear any possible appeal from Garrity’s Boston decision.

The suit had been brought by the NAACP in 1964 against the Springfield, Massachusetts, Board of Education, arguing—at least in part—the Carter thesis. This time it prevailed in the District Court. Judge Sweeney found that the Board of Education had not deliberately segregated Springfield’s schools; it had impartially assigned students to neighborhood schools which, purely because of residential patterns, became racially identifiable. Nonetheless, Sweeney ruled, such
de facto
segregation violated the Constitution. “It is neither just nor sensible,” he wrote, “to proscribe segregation having its basis in affirmative state action while at the same time failing to provide a remedy for segregation which grows out of discrimination in housing, or other economic or social factors.” And he closed his opinion with these explicit words: “There must be no segregated schools.” But a year later, the Court of Appeals bluntly reversed Sweeney in declaring: “We can accept no such constitutional right.”
Moreover, Chief Judge Bailey Aldrich suggested that Sweeney had gone much too far to accommodate the NAACP, warning: “It would be no better to consider the Negro’s special interests exclusively than it would be to disregard them completely.”

Arthur Garrity had no great affection for Bailey Aldrich, a prominent Yankee who occasionally betrayed a touch of arrogance toward Irish lawyers and judges. Now Garrity’s normal anxiety to be affirmed on appeal was reinforced by his disinclination to let Aldrich or his colleagues slap him down as they had George Sweeney. Arthur Garrity, a cautious judge on most cases, was going to be doubly cautious on this one.

In May 1972, as Garrity heard preliminary motions in the Boston case, Nick Flannery thought he detected in the judge a strange confusion—“almost a purposeful obtuseness”—about whether the plaintiffs were bringing a
de facto
or a
de jure
case. Over and over he would ask them, Are you claiming that the School Committee or other public bodies deliberately caused the schools here to be racially identifiable, or are you saying that segregation in and of itself is unconstitutional? Finally, Flannery realized that Garrity was sending them a message. Listen, he seemed to be saying, if this is a
de jure
case, fine, let’s move ahead; but if you’re going to get me into the mire Sweeney got into in Springfield, I may not want any part of it. So that June, Flannery and his colleagues wrote the judge a memorandum in which they spelled out—“almost in block letters”—their answer: he was not being asked to revisit Springfield; he was not being asked to do anything that would get him out on a doctrinal limb; indeed, he would be presented with a straightforward, almost a classic,
de jure
case. After that, Arthur Garrity seemed more at ease.

As promised, the argument presented by the plaintiffs in the two-week trial the following spring relied heavily on the “state action” premises of the Hillsboro, New Rochelle, and South Holland cases. Racial imbalance in Boston’s schools, they contended, was neither fortuitous nor innocent; it had been reinforced and maintained over the years by a whole host of techniques devised by the Boston School Committee: optional attendance zones, manipulated district lines, differential grade structures, open enrollment, feeder patterns, site selection policies, portable classrooms, and various pupil assignment practices. To make such a case required enormous time and effort. Unlike Southern plaintiffs, for whom it was often sufficient to cite a racially explicit statute, those in the North had to comb through School Committee minutes, district maps, and departmental regulations in search of documentary evidence of segregative practices and intent. Fortunately, the Boston School Committee had made things easier by keeping verbatim stenographic accounts of its meetings, providing a clear record of resistance to desegregation, as well as hints of its motivations. It was these transcripts which, more than anything else, had convinced Nick Flannery that Boston was a “sitting duck” for a school case.

The School Committee was represented by James St. Clair of the Boston firm of Hale and Dorr, who only nine months later would become President Nixon’s chief Watergate lawyer. Known in Boston as “the Silver Fox” because
of his handsome shock of gray hair, he had also been called “the best trial lawyer in the country.” But he needed all his skill and resourcefulness to rebut the massive evidence assembled by Nick Bannery’s team. At the trial, St. Clair argued that Boston’s racial imbalance stemmed merely from a “neighborhood school” policy neutrally applied to a city whose residents tended to live in tight ethnic enclaves. In other words, it was a case of pure
de facto
segregation, no more unconstitutional than that of Gary, Cincinnati, Kansas City—or Springfield.

Three months after the trial ended, while Arthur Garrity was pondering these arguments, the Supreme Court clarified his problem when it handed down an eagerly awaited decision in the Denver case,
Keyes
v.
School District Number 1
. For the first time in its series of landmark school cases, however, the Court was not unanimous. Because of the fierce opposition to integration in the South, the justices had struggled through
Brown, Green
, and
Swann
to hold together their fragile façade of unanimity on desegregtion. But in
Keyes
that effort collapsed—in part because Nixon had appointed two new justices, Lewis Powell and William Rehnquist, who were ideological foes of aggressive desegregation, and in part because the Court had greatly expanded its concept of
de jure
segregation.