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We Shall Overcome?

ISSUE:  Winter 1980
From Brown to Bakke: The Supreme Court and School Integration, 1954–1978, by J. Harvie Wilkinson, III. Oxford. $17.95

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 Aaro