ISSUE: Winter 1980
J. Harvie Wilkinson has given us a deeply thoughtful study of the course since 1954 of the law of school desegregation (or integration; the practical importance of the distinction gets increasingly elusive). He has a steady, controlled focusScarcely any of the many other storms and struggles of the past three decades, their wars and desperations and occasional flashes of sanity, affect his reading. Hardly even do other civil rights causes and events intrude into his absorption with the schools, nor does he often stay his hand to discuss school developments other than those whose central stage is the federal courtroom. There is, for example, not a word about the 1968 combat between the New York City teachers’ union and blacks over the Ocean Hill-Brownsville schools, a battle which did so much in the fatal breaking apart of the coalition that up to then had been a united voice for civil rights in Washington and elsewhere; nor any mention of Los Angeles, the country’s second largest school district, and wracked with controversy, but whose case has been to now in state court. For another example, (and one which goes to a conceptual flaw, I think) there is scant attention to Congress and its role in school affairs. This is a book about the Supreme Court, sometimes about other federal appellate courts also.
“Brown,” Mr. Wilkinson writes [6], “may be the most important political, social, and legal event in America’s twentieth-century history.” Can that be true, in the century of World Wars I and II, the Great Depression, Hiroshima, the Cold War, Vietnam, the Nixon administration, the arms race? Maybe he is right. For Brown and the great cause at whose forefront it stood was and is entirely our own affair. No foreign foe, no implacable march of science and technology, no economic systems gone out of control. It was and is only ourselves we were brought into confrontation with by the civil rights movement. Nothing has ever stood before its advance except our own wills and minds. That does make for a titanic struggle, one indeed unsurpassable in meaning and import.
Mr. Wilkinson has grounds, too, for confining his account to courtroom law, for that in itself is a story so intricate and by now expanded that to fit it alone into a book is hard enough. What we are provided with by him is not only an invariably interesting analysis of school desegregation case law but, and this may be the book’s outstanding contribution, a serious reexamination of the Supreme Court as an institution of governance. We have then not only a study of the Supreme Court on the Constitution, but of the Court’s role and performance in the Constitution.
Perhaps because I have a lesser view of that role than has Mr. Wilkinson—he once calls the Court “the ultimate symbol of America” [4]—I can have a more tolerant view of its performance in and after Brown. At the risk of almost certain oversimplification and fuzzing of very careful analyses, I would venture to summarize briefly his argument in the following way.
Brown I was right and necessary, though intellectually second-rate, a fact which condemned us to groping ever since for direction and definition. “Brown II can be justified, but just barely” [77]. Its famous standard, “all deliberate speed,” was probably the best of all bad approaches to implementation. It was to be poorly applied, and the Supreme Court itself was chiefly to blame for that. For the next decade, it “did almost nothing” [126]; it did not insist on more than tokenism or dispel evasions, in short failed to provide leadership and direction in what was during those years essentially a Southern-only controversy. Spurred by decisions coming up from the Southern circuits, notably the Fifth—and the discussion of these decisions and Judge John Minor Wisdom’s role is particularly good—and by its own apparent impatience, the Supreme Court for a period went to the other extreme and overreacted. This period began with its decision in Green v. County School Board, which effectively set aside “all deliberate speed,” and peaked with Swann v. Charlotte-Mecklenburg Board of Education, which insisted on specific remedies and expressly sanctioned busing as one such. Thus after tolerating defiance and token compliance, the Court in these years ordered “massive integration,” but for the South alone; with that came resegregation, as whites deserted the public schools. As school desegregation issues moved northward and westward, the Court pulled back, until finally in the Detroit case of 1974, Milliken v. Bradley, and in subsequent cases from Pasadena and Dayton, it in effect resigned from further leadership, leaving the future of school desegregation to a faith “that black progress would continue in the absence of an activist judiciary” [242]. The Court was, however, unable to escape, though it tried, the next controversy, that of compensating or affirmative action. In University of California v. Bakke, it artfully compromised issues not yet ready for definitive resolution; what lies next for affirmative action cannot be predicted.
Central to all the analysis is the issue of how far can and should be the distance between the Supreme Court and public opinion. In a fine summation, [309—310] Mr. Wilkinson writes:
In the end, however, the school cases sharpen one’s sense of the Supreme Court as a pragmatic institution. For only five years during the past quarter century (1968—73), did the Court demand substantial integration. More often it pleaded, mediated, mollified, or even withdrew. In almost all the landmark school cases, white racial sensibilities weighed heavily. In Brown and Swann they influenced the tone of the Court’s opinion; in Brown II, Milliken, and Bakke the actual result. The decisions involved the extent to which rule by law can alter popular racial beliefs. They ranged from Plessy (law cannot change popular attitudes), to Brown I (it can and will), to Brown II (but it must bear them in mind), to Green and Swann (but not forever), to Milliken (but, after all, law cannot function in the teeth of intense popular dissent).
It is a worthy analysis. My own opinion is that Mr. Wilkinson credits the Supreme Court too much, in several ways. The statement above is followed by a sentence saying that the Court’s central dilemma is that it is an institution guarding minority rights in a nation of majority rule. Even if one merely nods at the assertion that ours is majoritarian government, this simply is not true, not unless private and corporate wealth and presidential powers are seen as instances of minority rights, for they have been the Court’s most consistent beneficiaries. To lawyers (of whom Mr. Wilkinson, a former clerk to Mr. Justice Powell, is one, though now his work is that of an editor of one of the country’s good newspapers, the Norfolk Virginian-Pilot), the Supreme Court may’ be the republic’s “ultimate symbol,” but most of us have other idols, if we have them at all. Like all governmental bodies, the Court has its good and bad vintages, and the most that can be said for it, in contrast with presidents and Congresses, is that its good years approximate in number its bad and mediocre ones. A desperate people, the blacks of America and particularly our South, turned increasingly to the Court because of the near total irresponsibility of executives and legislators. The unique quality of a court—any common law court—that which sets it off from the other departments of our government, is that it has to come to some kind of a decision and explain it. Through that reluctantly opened door, the civil rights movement began its march.
But there are good and bad decisions. Given the present Court, in its top form mediocre, on other days mean, any civil rights lawyer taking voluntarily an important case to it is badly serving his or her clients. Mr. Wilkinson is right to regard evaluation of the Court’s performance as a necessary task for informed commentary; it is all too seldom done. He is right also to do it in a critical, unembarrassed fashion, not as some law professors do, as if they were begging the Court’s leave. But he misleads, it seems to me, when he, with the sort of professional arrogance which always puts the bar and bench at the center of the political solar system, airily sees Bakke (or any other case) as a “struggle for the soul of higher education” [266]; or—and this is more important—writes that the “failure of the post-Brown years is precisely the failure of the Court to sense its full place in a political partnership” [127].
Have the post-Brown years been a failure? Well, I think so, too, though I prefer today’s public schools, truly bad as they are, to the segregated ones of pre-Brown (and worst of all were the mindlessly segregated ones), which raised up the crop of those of us who have so miserably managed America’s racial relations in our time. The South had hardly any way to go but up. The clearest failure has been in the North, where schools are far more segregated than before 1954. The public schools have become another of the growing list of problems— like welfare, or health costs, or low-income housing— about which there is well-nigh unanimous agreement as to the wrongness of present practices, but only tired wisps of thought about solution. School desegregation is not the whole of the public school illness, but it is a big part, and has indirect as well as direct effects. I found myself often disagreeing with Mr. Wilkinson on relatively small points, but more often agreeing or being persuaded on larger ones. (Parenthetically, I have to add that this is said with some uncertainty. He is so exhaustive in his analyses and so determined to be fair, that he typically moves back and forth in argument until sometimes, perhaps through my own exhaustion, his own position would be hard for me to see. What exactly he thinks, to take an important example, of the Court’s decision in Bakke still eludes me.) There is much to be said, I believe, for lawyers and judges leaving the schools alone for a while, and in that respect I don’t regret the Court’s recent public school decisions. The Bakke decision is another matter, and deplorable. Mr. Wilkinson quotes regarding it Paul Freund, who applauded because it is “fuzzy” and leaves “room for development.” That seems to me particularly dumb in the light of the history, as recounted in this book, of “development” of Brown I. I believe the Court in Bakke should have confined itself to saying that a university was within its rights, and responsibility, when it adopted a reasonable approach to a problem that had been defined at every level of our government for years, and that courts should and would keep hands off so long as the approach was rational and benign in intention.
For Mr. Wilkinson is right in suggesting doubts about judicial activism, when other political processes are open and available. In an excellent passage (why must this man quote so infuriatingly much, when he can write better than ninetenths of the people he quotes from?), he points to the limitations of litigation, requiring minds to “whittle the enormity of our own unpardonable past into some narrow and manageable channel” [140]. My own doubts arise not only about method but about those minds themselves. There is nothing in the schooling or training of lawyers specially to qualify them for constitutional judgments, and yet the bar’s monopoly of the bench goes hardly questioned. A philosopher, newspaper editor, family farmer, novelist—such as these could not help but offer new intelligence to a woesomely inbred branch of government. With a few lawyers scattered about lower courts to deal with torts, contracts, wills, and such other civil matters, especially those between natural individuals who must rely on the law’s certainty (because unlike corporations they have not the money to bend it), the courts could do well enough with judges chosen without regard for their previous occupations. Reading and understanding past opinions is no mystery rite; any literate person can do it.
These are not intended to be merely fulminations, though of course they may be only that. They are instead one indicated conclusion to be drawn from Mr. Wilkinson’s account. The “legal mind” has almost nothing to do with the decisions he relates. What we have had are white men (hardly a black and even fewer women among them) pressed for decisions they would probably just as soon not make, groping within themselves for their own moral sense and also their own sense about this nation’s values, looking out from their isolation for some inkling as to what the public wants and will accept, humanly wondering how a decision one way or another will affect their own careers.
In short, we have a political process. Mr. Wilkinson is very hard on the Supreme Court for its relative inactivity in the decade after Brown. With hindsight, I don’t disagree necessarily. I might, though, offer for what it is worth one person’s remembrance. It is my recollection that most of us active in the struggle for school desegregation were not in those years looking to the Court to do more about it. We honored and revered it for Brown I, were disappointed by Brown II but felt we had no choice but to accept it, were thrilled by Aaron v. Cooper, where the court refused to allow a show of resistance to supersede a constitutional order. We didn’t really look to the Court for more. We looked mainly to two other places: to local school boards and to Congress. The former had been given, both by the Supreme Court and by democratic myth, the local responsibility; the latter, we thought, should now, as it should have before, legislate national standards in discharge of its explicit authority under the Fourteenth Amendment. So if the Court did little in those years, the fact is it was not being pressed to do much, not even by the Legal Defense Fund lawyers, who were occupied with moving cases in the districts against recalcitrant school boards and state governments.
No one of right mind affirmatively likes busing, and no one in those earlier days talked or thought about “affirmative action.” In my own opinion, we could have successfully desegregated the schools in those days, and to a kind of general approval that would have avoided most of the later inflammation. The road to that would have included, principally, a re-drawing of attendance zones along lines that would without gerrymandering encourage mixing; the location of new facilities to maximize integration; honest assignment by residence; and honest, thorough upgrading of those facilities which would still serve predominantly the black and the poor. We shall never know. The point is not, however, that this is what I thought. It reconstructs as well as I am able what the civil rights movement generally meant in those years by integration; it is a fair representation, I believe, of what black Southerners had in mind and so desperately and poignantly wanted in the late fifties and early sixties.
It was not frustrated by the Supreme Court. Mr. Wilkinson flays the wrong adversary. It was denied by school boards across the South, such as that one in Richmond chaired from 1952—61 by Lewis Powell, very nearly the only judge for whom Mr. Wilkinson betrays admiration. That modest set of proposals was aborted by state governments, led in the days of massive resistance by Virginia; probably only a Virginian—or an angry, fed-up Arkansan—could call Orval Faubus, that country bumpkin, and not the regional and national leader Harry F. Byrd, the “least forgivable” racist [88]. The only trivial parts of this admirable, serious book come at those few places where some ancestral debts get paid with suggestions that the white South of those days was “principled” [74] or was romantically defending some antebellum fantasy or was somehow being victimized. On the contrary, massive resistance was mean, shoddy, and calculated, as any black Southerner of those days and not a few whites as well knew. May it please the cosmos in its occasional mercy to allow the white South no more myths of that old, hateful, and hurtful kind; and even to allow the white South the understanding to see that the special attention it got turned out to be its special good fortune, reforming and releasing it from ancient captivity.
But above all it was Congress which, once again, failed. When it finally enacted Title VI of the Civil Rights Act of 1964, much of the damage had been already done. Title VI was bad legislation anyway, a typical Washingtonian ploy. It combined an unlikely punishment—a cut-off of funds—with a large federal bureaucracy that generated guidelines detailed enough for local bureaucrats to hide in. In those activist years of the federal courts around 1968—73, much Southern desegregation was accomplished. As the Court withdrew and Mr. Nixon’s sway extended, the process slowed and has almost stopped. Federal offices never close, however, and the Title VI administration, like the Commission on Civil Rights, goes on and will, pointlessly, go on. What Congress could have done, and over and over was urged to do, were the sort of things Mr. Wilkinson chides the Supreme Court for not doing. It could have done them far better. It could have set standards for acceptable integration plans; it could have monitored progress; it could have directed the Attorney General to sue in the name of the United States for the school rights willfully denied any of its citizens.
No one much any more wants to tackle school desegregation. The civil rights groups last year celebrated the silver anniversary of Brown, but most of them have given up doing anything about it. The Legal Defense Fund, which carried the brunt of the Southern litigation, concentrates now on employment discrimination. The NAACP, which was doing much of the Northern litigation, surveys a field strewn with defeats,
Reading this book brought too much pain; the civil rights movement was America’s (and the South’s) great cleansing triumph of this century, but not everything, alas, worked. We saw school desegregation get mired in swamps of tedium, and most of us, to our shame, turned away. I have said little in this review of Mr. Wilkinson’s lengthy discussion of busing, but in his determined fair-mindedness he presents with respect and sympathy just about every argument for it; I agree with him, but I want to run from the subject, and will when I can. One of the great flaws of reform-by-litigation is that courts stumble from step to step, case to case, seldom able to see beyond the supposed logic of judicially definable wrongs and judically available remedies. And so the grand cause of democratic schools comes to stand or fall over busing! No adherent in 1955, or even 1965, would have foreseen that.
Mr. Wilkinson has also a really first-rate treatment of the problem, which became acute when the school cases moved north, of requiring plaintiffs to prove specific acts of discrimination. With this we came a good way around the litigation circle. In the days of Southern resistance, school board lawyers, backed by the public purse, consumed court time by the months and years, delving for every possible loophole or exception, while counsel for plaintiffs rested on Constitutional principles. Today the burden of proof has shifted, and the plaintiffs lawyer, supported by lean funds, must sift through local history for bits and pieces of evidence linking the fact of segregated schools to deliberate official actions. Mr. Wilkinson rightly asks why, in a just country, this would be so.
It is a pleasure to read a book as solid as this. It instructs even when not altogether presuading; what more can be asked? Mr. Wilkinson tends to think that nearly everyone who has since 1954 dealt with the law and process of school desegregation has been wrong, or at least inadequate to the job; my own dilemma is that I tend to think that nearly everyone (except Byrd, Byrnes, Talmadge, James Kilpatrick, and other planners and spear-bearers of massive resistance) has something to be said for him or her. It comes out, saddeningly, about the same.
There are statements, mostly trivial, I question factually or things I take exception to, like the excessive footnoting (must we, for goodness sakes, have back-of-the-book citations for Bobby Burns’ warning that plans “gang aft agley” or for the Gospel’s admonition that the poor we shall have always?). There is only one error I would call egregious. It comes when Mr. Wilkinson repeats the deception that Richard Nixon believed in “strict construction” of the Constitution. He certainly did not, nor do his appointees, not when claims of national security or presidential powers to aggress abroad are made.
And on that distant field I take my main issue with Mr. Wilkinson’s view of the role of the Supreme Court in the Constitutional structure. With eyes on scarcely anything but the cases before the Court, he judges it, now sadly, now harshly, as if it were free to be and do whatever it determined for itself. But it never was. During all these years since 1954, it was a self-conscious part of a national government which led it far more than was led by it. The Court protects that government when it does good; it protects it likewise in wrongdoing. In an historic moment, it seized in 1954 a cup it could no longer turn from. That was its glory. In fits and starts, waverings and impulsions since, it has reflected the concerns and interests of its sharers in national governing power. And that is its accustomed and probably inevitable role.
* This sentence, as well as Mr. Wilkinson’s book, was written prior to the Supreme Court’s July 1979 decisions in the Columbus, Ohio and second Dayton cases. Those may portend a renewed period of judicial activism; just as likely, they may be merely the shifting about of a divided and unsure Court.
