Common Ground (49 page)

In
Keyes
, seven justices put the capstone on the evolving doctrine of Northern school desegregation. Denver’s schools had never been officially segregated—their segregation probably grew out of relatively innocent housing patterns. But henceforth the origin of segregation—whether by law or by residence—would not matter. What would matter was the immediate cause. In cities like Denver, the issue would be whether local authorities had maintained, reinforced, or expanded residentially based separation by covert techniques, and then whether their actions were guided by “segregative intent.” In answering the first question, the Court did not even demand that such techniques be found throughout the city. So long as their use could be proved in
one
neighborhood, and so long as that one neighborhood was not “a separate, identifiable and unrelated unit,” the Court presumed that such techniques would infect other parts of the system. Likewise, if “segregative intent” was proved in one section, that created an inference that segregation elsewhere in the city was also intentional and shifted the burden of proof to the school authorities to refute that assumption. If they failed to do so, a court could order “root and branch” desegregation in the entire city.

By then, the line between
de facto
and
de jure
segregation had become so fine as to be almost indistinguishable to the layman’s eye. Some held that whether the segregation was intentional or not, the very fact of separation harmed black children; if that were so, why not cut through the doctrinal underbrush and attack the problem directly? But others, some liberal constitutionalists included, thought it a distinction worth preserving: surely, a free society ought to defend the right of its citizens to make genuinely private choices, no matter how reprehensible. If government could abolish purely voluntary school segregation (if such a thing really existed), then what was to
prevent it from requiring a private citizen to accept Irish, black, or Portuguese guests at his dinner table?

In July 1973, Garrity reopened the record so that the parties could argue
Keyes
’s relevance to Boston. But the plaintiffs didn’t think they needed
Keyes
’s elaborate structure of inferences and presumptions—theirs was a more old-fashioned case, relying on sturdy, direct evidence of discrimination. At best,
Keyes
was a “moreover”; if their argument hadn’t already prevailed, they thought, the new doctrine would surely buttress it.

Privately, Arthur Garrity agreed. Boston seemed to him an infinitely more compelling instance of intentional segregation than Denver had been. But the judge was determined to produce such a tightly reasoned decision that it would satisfy even Justice Powell, whose opinion in
Keyes
had outlined a rigorous standard of proof for such Northern school cases. So Garrity worked hours each day at the long table in his chambers, beneath the signed photographs of Jack and Robert Kennedy; then, after a quiet supper at home, he worked well into the night in his second-floor study. But the job went slowly, partly because he was burdened with several other major cases, partly because his diligence required that he personally examine each of the thousand-odd exhibits—depositions, minutes, charts, computer printouts. As the spring of 1974 came and still no decision was forthcoming, some of the plaintiffs’ lawyers grew uneasy: if Garrity waited much longer, he would leave school and city authorities little time to prepare for any desegregation he might order that fall. The lawyers briefly considered the unusual step of asking the Court of Appeals for a writ of
mandamus
requiring the judge to issue his order forthwith.

The decision might have come down somewhat earlier had the state’s Supreme Judicial Court not still been refining its order well into the spring. Garrity wanted to let the state court complete its record so he, in a sense, could ride its coattails. By fusing these two strands of litigation, he hoped that each would reinforce the other, thus winning wider community acceptance. Another factor in the delay may have been a concern about violent student protests if the decision came down while school was still in session. On June 6, an exasperated Kevin White called the delay “a crucifix, a crime to those who are apprehensive and uncertain.”

On June 21—the last day of school and fifteen months since the end of the trial—Garrity finally released his opinion. Following the “blueprint” of
Keyes
, he found that the School Committee had used covert techniques to segregate the system, and had done so with “segregative intent.” But in those findings he relied principally on the direct evidence supplied by the plaintiffs from committee transcripts and other documents, and only in one narrow area on the inferences permitted by
Keyes
. “The court concludes,” he wrote, “that the defendants have knowingly carried out a systematic program of segregation affecting all of the city’s students, teachers and school facilities and have intentionally brought about and maintained a dual school system. Therefore, the entire school system of Boston is unconstitutionally segregated.”

In support of his decision, the judge had written a 152-page opinion, five
or six times the length of similar rulings in other cities. Tom Atkins, the former Boston City Councilman, now a lawyer specializing in school cases for the national NAACP, called it “the most thoroughly documented, tightly reasoned opinion on school desegregation I have ever seen.” In producing such a document, the judge had two principal objectives: first, to ensure against reversal on appeal, and second, to overwhelm Boston’s persistent opposition to desegregation by the sheer weight of evidence and the power of his logic.

He achieved his first goal. Six months later, the Court of Appeals upheld Garrity, noting, “In the light of the ample factual record and the precedents of the Supreme Court, we do not see how the court could have reached any other conclusion.” And six months after that, the Supreme Court itself let that ruling stand. But Garrity’s impressive opinion did nothing to mitigate the opposition to desegregation in Boston’s white neighborhoods. Indeed, the judge’s critics argued that he had been naïve to imagine that many Bostonians would wade through his complex legal analysis. Moreover, his decision dealt only with the first segment of the case—the “liability” portion, in which he determined whether or not there had been a violation of the plaintiffs’ constitutional rights. Now came the more difficult part—the “remedy” phase, in which he had to decide what to do about it. That was no mean task. Some of the fifteen months which Garrity had spent crafting his immaculate “liability” finding, his critics contended, might better have been spent beginning the search for an appropriate remedy. Now, with barely three months left before the state plan was scheduled to go into effect, the judge felt he had no recourse but to adopt that plan as his first-stage remedy (what would become known as Phase I) while he began devising a permanent remedy (Phase II).

The chief architect of the state plan was a thirty-five-year-old Episcopalian minister named Charles Glenn. A veteran of the civil rights movement, Glenn had marched at Selma, been arrested in North Carolina, worked with a black church in Roxbury, and helped organize Boston’s first school boycott. By 1971, he was director of the State Education Department’s Bureau of Equal Educational Opportunity, which put him at the center of the department’s efforts to implement the Racial Imbalance Act. Even as a bureaucrat, he displayed a passionate zeal on racial issues. In his dealings with the Boston School Committee, Charlie Glenn was more than strong, he was implacable. When the Supreme Judicial Court ordered the State Education Department to prepare a plan for Boston in 1973, the job fell to Glenn. Jack Finger, a desegregation expert from the University of Rhode Island, supplied the basic concept, but Glenn did most of the work. As he describes it, the task was largely mechanical. “We simply took a large map and started moving across the city in a big arc from northwest to southeast, dividing it into districts so that each school would include the right proportions of black and white kids. When we got to the end of the arc, we were left with South Boston and Roxbury. We didn’t have any choice but to mix those two neighborhoods.”

Others aren’t so sure. Knowledgeable educators believe there were several alternatives to cross-busing between South Boston, the stronghold of opposition
to desegregation, and Roxbury, the community generally regarded as the heart of Boston’s black ghetto. One would have been to integrate South Boston instead with blacks from adjacent North Dorchester, a community with a historical relationship to South Boston. Many people from South Boston had moved to Dorchester, the two neighborhoods were represented by the same state senator, and thus the area was less alien—and less frightening—to Southie. Or South Boston and Roxbury students might have been bused to several neutral sites where they could have been diluted with students from other inner-city neighborhoods. In any case, the process didn’t have to be quite so mechanical as Glenn describes it. And there are those who suspect that Glenn’s approach was less mechanical than deliberate. One former colleague says, “Charlie’s patience had long since been exhausted by dealing with those bigots on the School Committee. I think he said to himself, ‘We’ve had enough of you racists in South Boston; you’re going to Roxbury; let’s see how you like that.’ ”

Danger signals flared. In early 1973, Professor Louis Jaffe of the Harvard Law School was designated by the State Board of Education to hold hearings on the plan. In his report, Jaffe warned, “[South Boston’s] people are intensely hostile to blacks…. I conclude, therefore, that this part of the plan should be restudied.” It is not clear what Jaffe was suggesting. To have omitted South Boston completely from the plan would have been to let its very racial hostility frustrate integration there, a principle repeatedly rejected by the Supreme Court. But Jaffe proposed no alternatives. In any case, the State Board—and later the Supreme Judicial Court—overrode his warning and ordered the plan, including the South Boston-Roxbury pairing, into effect.

For the time being, Arthur Garrity didn’t want to confront such problems. On June 27, 1974—six days after he had adopted the state plan as the first-stage remedy for Boston—Garrity announced from the bench, “I saw the state plan for the first time late yesterday afternoon.” To some critics, this was a damaging admission that he had adopted the plan without even reading it. But it was scarcely an inadvertent remark, for Garrity repeated it several times that day. In retrospect, his strategy seems clear. Because he had taken so long to rule on the constitutional violation, he had not yet produced a remedy himself. Some officials suggested he postpone all remedies a full year—until September 1975—to permit time for systematic planning, but the state court had already ordered a plan into effect that fall; it would be most unusual for a federal judge to override a state remedy if he had nothing with which to replace it. In midsummer, Garrity gave the School Committee a chance to suggest an alternative, but the committee refused to endorse any plan which required busing. Precedent required Garrity to implement the “best available plan,” and for the time being the state plan was the best—indeed the only—plan available. By stressing his ignorance of its details, Garrity seemed to be saying, “If, as some predict, this plan provokes violence in the fall, don’t blame me.” It wouldn’t be his plan; it would be Charlie Glenn’s plan.

•    •    •

The predictions came to pass—with a vengeance. When the school year opened on September 12, 1974, most of the eighty schools affected by the plan were relatively peaceful. But when buses carrying black students pulled up at South Boston High School that morning, groups of angry whites shouted, “Niggers, go home!” And six hours later, as buses from the high school rolled back down Day Boulevard—that memorial to Louise Day Hicks’s father—crowds pelted them with eggs, beer bottles, soda cans, and rocks, shattering windows and injuring nine students. Television flashed the scene across the city and the continent that evening. Whatever the situation at other schools, then and in the future, that image of “busing in Boston” was indelibly stamped on the national memory, as irrevocable as the scene outside Central High School in Little Rock seventeen years before.

And that was only the beginning. On September 16, after a planned protest march was banned by the city, South Boston youths attacked blacks at a subway station, overturned benches, and ripped out pay phones. During the next weeks, the Tactical Patrol Force had to break up wild racial melees in the cafeterias of both South Boston and Hyde Park high schools.

October brought an escalation of the violence. On October 7, a Haitian-born maintenance man named André Yvon Jean-Louis drove into South Boston as usual to pick up his wife, who worked at a laundry there. As he stopped for a red light, a crowd of whites rocked his car back and forth, smashed the windows, hauled him out, and chased him down the street. “Get that nigger!” they screamed. In desperation, Jean-Louis tried to climb over a wrought-iron fence onto a porch, but his pursuers threw him to the ground, where he was kicked repeatedly and beaten with a hammer and a sawed-off hockey stick until rescued by a policeman. The next day, black students in Roxbury—who had generally kept the peace until then—responded with a wild rampage during which they stoned cars and attacked passing whites. A few days later, Governor Sargent called out the National Guard.

While the city reaped the whirlwind of Phase I, Judge Garrity was working toward a better plan for Phase II. The framing of such remedies is theoretically guided by the same legal principles which govern awards to plaintiffs defrauded, or otherwise damaged, in business dealings. The victim is to be compensated for his loss or, in legal terms, to be “made whole.” Practically speaking, in constitutional questions like school desegregation, things are not so simple, for by the time the court can bring a remedy to bear, the plaintiffs themselves, and even the contemporaneous “class” they represent, have either left school or are so far along that they have suffered damage beyond judicial repair. Thus, remedies in such cases must extend far beyond traditional notions of compensation to devise schemes which guarantee the rights of future generations of black students. Judges may maintain the legal fiction that they are merely trying a lawsuit between two parties, but their remedies affect the rights of parties who, strictly speaking, are not even represented before the court. A judge in such a case is no longer primarily concerned with adjudicating past wrongs; he is seeking to alter the future behavior of large sections of
the population. Though he may still see himself as a neutral arbiter, he is, in fact, making social policy.