KC Johnson

The Politics of Backlash

Audio Files:

President Nixon and Daniel Patrick Moynihan, 7 Oct. 1971, discussing the President’s racial theories of governance

President Nixon: I think you may have heard me tell of my conversation with [former Puerto Rico governor Luis] Muñoz Marín—who, incidentally was capable of governing.

UN ambassador Daniel Patrick Moynihan: Yes.

President Nixon: You know—I think you think well of him.

In ’58, after Lima and Caracas, I stopped there. And he and I talked all night—and he, drinking his scotch and, you know, and really lived it up. And I, trying to keep up with him—practically dead!

But he made a very interesting point, very late, early in the early morning hours. He said, “Look,” he says, “I shouldn’t say this.” He said, “But Mr. Vice-President, my people have many fine qualities. I mean, they’re courteous, they’re good family people, in the arts, and you know, philosophy, etc.”

But he said, “I will have to admit, my people”—speaking of Latins generally—“have never been very good at government.”

Moynihan: Yeah.

President Nixon: Now, let’s look at that. The Italians aren’t any good at government. The Spanish aren’t any good at government.

Moynihan: Yeah.

President Nixon: The French have had a hell of a time, and they’re half Latin.

And all of Latin America’s not any good at government. They either go to one extreme or the other. It’s either a family—well, three extremes: family oligarchy, or a dictatorship, or a dictatorship on the right or one on the left.

Moynihan: Mm-hmm.

President Nixon: Very seldom in the center.

Now, having said all that, however, as you compare the Latin dictatorships, governments, etc., and their forms of government, they are—they at least do it their way. It is an orderly way, which works relatively well. They have been able to run the damn place.

Looking at the Black countries . . . Of course, there are only two old ones—Haiti is an old one, and Liberia is a very old one.

Moynihan: Mm-hmm.

President Nixon: Ethiopia is a very old one. But they have a hell of a time running the place.

Moynihan: It’s a pretty miserable world.

President Nixon: Now, now, now . . . you look at Asia, and you can say, “Well what about out there? You don’t have democracies.” Of course you don’t, except Japan—where we imposed it, and the Philippines, and it’s a hell of a mess.

But on the other hand, Thailand, with its oligarchy, has the right kind of a government for Thailand. And we have to say, too, that Iran, with the benevolent Shah . . .

Moynihan: [Interrupting] – works pretty well?

President Nixon: . . . with the benevolent Shah, that’s the right thing for those folks.

Moynihan: Yeah.

President Nixon: I think.

Now, what I’m getting back at, a long way around, is this: I think something, I think something could be—is eventually going to come out here is this—and it’s right beneath the surface, this whole black-white deal, is going to come out the fact that Asians are capable of governing themselves, one way or another. That we Caucasians have learned it after slaughtering each other in religious wars and other wars for many, many years, including a couple in the last, this century.

Moynihan: Sure.

President Nixon: The Latins do it in a miserable way, but they do it. But the Africans just can’t run things.

Now that’s a very, very fundamental point, in the international scene. See my point?

Moynihan: Oh boy, you sure see it around this place [at the UN]!

President Nixon: Yeah. Yeah, of course you do, you see them . . . You know, I have mixed feelings. I receive their ambassadors, they change all the time, and I’ve had them here. I love ‘em, they’re so kind, and so nice—and they’re children!

Moynihan: Yeah.

President Nixon: Children . . .

Moynihan: [Laughing] Yeah.

President Nixon: Huh? You know?

Moynihan: And they always want something like children.

President Nixon: Oh god yes, they why . . . Well, what can you do? But what I meant is, it’s so childlike, the childlike faith, and this and that. And of course a lot of them are crooks—but we have crooks too!

———–

President Nixon and Pat Buchanan, 10 Oct. 1971, discussing priorities for a Supreme Court appointment

President Nixon: As long as I’m sitting in the chair, there’s not going to be any Jew appointed to that Court—not because they’re Jewish, because there’s no Jew, Pat, that can be right on the criminal law issue.

Pat Buchanan: Yeah.

President Nixon: Have you ever known one that was?

Buchanan: No.

President Nixon: They’re all got hung up on civil rights. So you’re going to get two conservatives on this Court.

[Break.]

President Nixon: They assassinated one man—an honorable, decent man, Poff—because he happened to be a Southerner. Now, the President is concerned about they’re now going to attempt to assassinate another man [Robert Byrd], because he happens to be basically a conservative. It shows it isn’t just Southern—it’s conservative!

Buchanan: That’s right.

President Nixon: That’s what they’re after. Right?

Buchanan: It sure is. It sure is. As long as you got that Court, this is there. It scares the hell out of them—these two appointments.

President Nixon: They’re scared.

Buchanan: They’re saying you shouldn’t have the right to appoint these two to turn it around. This is just a historic struggle right now.

[Break.]

President Nixon: Yeah. They say that I should balance. Well, for Christ’s sakes, did they balance it?

Buchanan: That’s right. Yeah. They would have had it 9-0.

President Nixon: Did they balance it? For God’s sakes, what kind of people did Johnson appoint? Even Eisenhower! He appointed Warren, and he appointed [Supreme Court Justice William] Brennan.

Buchanan: Right.

President Nixon: And he appointed Supreme Court Justice] Potter Stewart, who is . . .

Buchanan: Wishy-washy.

President Nixon: Acey-duecey [a contemporary euphemism for gay].

Buchanan: Yeah. He is, huh? [laughing]

President Nixon: Academically speaking. Not in a sexual way. But goddamnit, he goes out to Georgetown and votes wrong on this damn . . . But Potter will go with the four [Nixon appointees], I think. See, this gives [Warren] Burger the whip hand.

[Break.]

President Nixon: They’ve to the point where they’ve got to confirm a Southerner.

Buchanan: That’s right.

President Nixon: Don’t you agree?

Buchanan: I do.

President Nixon: One Southerner. We’re going to find one. Have to dig deep.

[Break.]

President Nixon: But I want to get the NAACP on this one. I want to get . . . I want to get . . . But mainly worry those sons of bitches in the Senate.

———————-

President Nixon and Pat Buchanan, September 22, 1971, discussing the political effects of school busing in Detroit

President Nixon: Well, I’ve basically—we’ve got to say that it’s only the extent that it is required by law—

Pat Buchanan: Right.

President Nixon: By a court order, do I think busing should be used.

Buchanan: Mm-hmm.

President Nixon: Don’t you think that’s really what you get down to?

Buchanan: Right. Right.

President Nixon: Because the line, actually, between my line and [Democratic senator and nomination front-runner Edmund] Muskie’s, is not as clear as—I mean, it’s just the way he said it. He starts at the other end. He says, “Well, I think busing is a legitimate tool—

Buchanan: Yeah.

President Nixon: And then, “but I’m against it.” I start at the other end. I say, “I’m against busing, but, if the law requires it, to the minimum extent necessary, I, of course, will not resist it.”

Buchanan: Mm-hmm.

President Nixon: Right?

Buchanan: Right.

President Nixon: It’s purely a question of tone.

Buchanan: Well, we’ve got to push Muskie’s emphasis up in the headlines; that’s the problem.

President Nixon: That’s right. That’s right. Yeah. It’s got to be—well, I think it probably is going to get some play in the South now—

Buchanan: I think, well, that’s something you could really move by various statements exaggerating his position, and then Muskie would come back sort of drawing it back and it raises—identifies him with it.

President Nixon: Yeah, the thing to do really is to praise him—have some civil rights people praise him for his defense of busing.

Buchanan: Mm-hmm.

President Nixon: That’s the way to really get that, you know. It’s much the better way than to have people attack him for it—

Buchanan: Mm-hmm.

President Nixon: —is to praise him for his defense of busing, see?

Buchanan: Mm-hmm. Mm-hmm.

President Nixon: And I don’t know if you’ve got any people that can do that or not. But I would think that would be very clever.

Buchanan: Mm-hmm. OK.

—————–

Map:

Proposed school integration zone, Milliken v. Bradley:

michigan

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Videos:

Willie Horton ad, used against Mike Dukakis in 1988 presidential election:

“hands” ad, used by Republican senator Jesse Helms against Democratic nominee Harvey Gantt, 1990 North Carolina Senate race:

“Call me, Harold” ad, Republican ad used against Democratic nominee Harold Ford, Jr., 2006 Tennessee Senate race:

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Primary sources:

LBJ’s affirmative action order:

Executive Order No. 11246

Lyndon B. Johnson
September 24, 1965

EQUAL EMPLOYMENT OPPORTUNITY

Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows:

PART I— NONDISCRIMINATION IN GOVERNMENT EMPLOYMENT

Section 101. It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, to prohibit discrimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency. The policy of equal opportunity applies to every aspect of Federal employment policy and practice . . .

Sec. 103. The Civil Service Commission shall supervise and provide leadership and guidance in the conduct of equal employment opportunity programs for the civilian employees of and applications for employment within the executive departments and agencies and shall review agency program accomplishments periodically. In order to facilitate the achievement of a model program for equal employment opportunity in the Federal service, the Commission may consult from time to time with such individuals, groups, or organizations as may be of assistance in improving the Federal program and realizing the objectives of this Part.

Sec. 104. The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, creed, color, or national origin. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission . . .

PART II — NONDISCRIMINATION IN EMPLOYMENT BY GOVERNMENT CONTRACTORS AND SUBCONTRACTORS

SUBPART B — CONTRACTORS’ AGREEMENTS

Sec. 202. Except in contracts exempted in accordance with Section 204 of this Order, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:

During the performance of this contract, the contractor agrees as follows:

(1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.

(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin . . .

SUBPART D — SANCTIONS AND PENALTIES

Sec. 209. (a) In accordance with such rules, regulations, or orders as the Secretary of Labor may issue or adopt, the Secretary or the appropriate contracting agency may:

(1) Publish, or cause to be published, the names of contractors or unions which it has concluded have complied or have failed to comply with the provisions of this Order or of the rules, regulations, and orders of the Secretary of Labor.

(2) Recommend to the Department of Justice that, in cases in which there is substantial or material violation or the threat of substantial or material violation of the contractual provisions set forth in Section 202 of this Order, appropriate proceedings be brought to enforce those provisions, including the enjoining, within the limitations of applicable law, of organizations, individuals, or groups who prevent directly or indirectly, or seek to prevent directly or indirectly, compliance with the provisions of this Order.

(3) Recommend to the Equal Employment Opportunity Commission or the Department of Justice that appropriate proceedings be instituted under Title VII of the Civil Rights Act of 1964.

(4) Recommend to the Department of Justice that criminal proceedings be brought for the furnishing of false information to any contracting agency or to the Secretary of Labor as the case may be.

(5) Cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor or subcontractor to comply with the non-discrimination provisions of the contract. Contracts may be cancelled, terminated, or suspended absolutely or continuance of contracts may be conditioned upon a program for future compliance approved by the contracting agency.

(6) Provide that any contracting agency shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary of Labor that such contractor has established and will carry out personnel and employment policies in compliance with the provisions of this Order.

Lyndon B. Johnson
The White House
September 24, 1965

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Swann v. Charlotte-Mecklenburg Board of Education, Supreme Court decision reaffirming authorization to use school busing to achieve integration

BURGER, C.J., Opinion of the Court

SUPREME COURT OF THE UNITED STATES


402 U.S. 1

Swann v. Charlotte-Mecklenburg Board of Education

No. 281 Argued: October 12, 1970 — Decided: April 20, 1971


MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari in this case to review important issues as to the duties of school authorities and the scope of powers of federal courts under this Court’s mandates to eliminate racially separate public schools established and maintained by state action. Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I).

This case and those argued with it arose in States having a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race. That was what Brown v. Board of Education was all about. These cases present us with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once. Meanwhile, district courts and courts of appeals have struggled in hundreds of cases with a multitude and variety of problems under this Court’s general directive. Understandably, in an area of evolving remedies, those courts had to improvise and experiment without detailed or specific guidelines. This Court, in Brown I, appropriately dealt with the large constitutional principles; other federal courts had to grapple with the flinty, intractable realities of day-to-day implementation of those constitutional commands. Their efforts, of necessity, embraced a process of “trial and error,” and our effort to formulate guidelines must take into account their experience.

I

The Charlotte-Mecklenburg school system, the 43d largest in the Nation, encompasses the city of Charlotte and surrounding Mecklenburg County, North Carolina. The area is large — 550 square miles –spanning roughly 22 miles east-west and 36 miles north-south. During the 1968-1969 school year, the system served more than 84,000 pupils in 107 schools. Approximately 71% of the pupils were found to be white, and 29% Negro. As of June, 1969, there were approximately 24,000 Negro students in the system, of whom 21,000 attended schools within the city of Charlotte. Two-thirds of those 21,000 — approximately 14,000 Negro students — attended 21 schools which were either totally Negro or more than 99% Negro.

This situation came about under a desegregation plan approved by the District Court at the commencement of the present litigation in 1965, based upon geographic zoning with a free transfer provision. The present proceedings were initiated in September, 1968, by petitioner Swann’s motion for further relief based on Green v. County School Board, 391 U.S. 430 (1968), and its companion cases. All parties now agree that in 1969 the system fell short of achieving the unitary school system that those cases require.

The District Court held numerous hearings and received voluminous evidence. In addition to finding certain actions of the school board to be discriminatory, the court also found that residential patterns in the city and county resulted in part from federal, state, and local government action other than school board decisions. School board action based on these patterns, for example, by locating schools in Negro residential areas and fixing the size of the schools to accommodate the needs of immediate neighborhoods, resulted in segregated education. These findings were subsequently accepted by the Court of Appeals.

In April, 1969, the District Court ordered the school board to come forward with a plan for both faculty and student desegregation. Proposed plans were accepted by the court in June and August, 1969, on an interim basis only, and the board was ordered to file a third plan by November, 1969. In November, the board moved for an extension of time until February, 1970, but when that was denied the board submitted a partially completed plan. In December, 1969, the District Court held that the board’s submission was unacceptable and appointed an expert in education administration, Dr. John Finger, to prepare a desegregation plan. Thereafter in February, 1970, the District Court was presented with two alternative pupil assignment plan the finalized “board plan” and the “Finger plan.”

The Board Plan. As finally submitted, the school board plan closed seven schools and reassigned their pupils. It restructured school attendance zones to achieve greater racial balance but maintained existing grade structures and rejected techniques such as pairing and clustering as part of a desegregation effort. The plan created a single athletic league, eliminated the previously racial basis of the school bus system, provided racially mixed faculties and administrative staffs, and modified its free-transfer plan into an optional majority-to-minority transfer system.

The board plan proposed substantial assignment of Negroes to nine of the system’s 10 high schools, producing 17% to 36% Negro population in each. The projected Negro attendance at the 10th school, Independence, was 2%. The proposed attendance zones for the high schools were typically shaped like wedges of a pie, extending outward from the center of the city to the suburban and rural areas of the county in order to afford residents of the center city area access to outlying schools.

As for junior high schools, the board plan rezoned the 21 school areas so that, in 20, the Negro attendance would range from 0% to 38%. The other school, located in the heart of the Negro residential area, was left with an enrollment of 90% Negro.

The board plan with respect to elementary schools relied entirely upon gerrymandering of geographic zones. More than half of the Negro elementary pupils were left in nine schools that were 86% to 100% Negro; approximately half of the white elementary pupils were assigned to schools 86% to 100% white.

The Finger Plan. The plan submitted by the court-appointed expert, Dr. Finger, adopted the school board zoning plan for senior high schools with one modification: it required that an additional 300 Negro students be transported from the Negro residential area of the city to the nearly all-white Independence High School.

The Finger plan for the junior high schools employed much of the rezoning plan of the board, combined with the creation of nine “satellite” zones. Under the satellite plan, inner-city Negro students were assigned by attendance zones to nine outlying predominately white junior high schools, thereby substantially desegregating every junior high school in the system.

The Finger plan departed from the board plan chiefly in its handling of the system’s 76 elementary schools. Rather than relying solely upon geographic zoning, Dr. Finger proposed use of zoning, pairing, and grouping techniques, with the result that student bodies throughout the system would range from 9% to 38% Negro.

The District Court described the plan thus:

Like the board plan, the Finger plan does as much by rezoning school attendance lines as can reasonably be accomplished. However, unlike the board plan, it does not stop there. It goes further and desegregates all the rest of the elementary schools by the technique of grouping two or three outlying schools with one black inner city school; by transporting black students from grades one through four to the outlying white schools; and by transporting white students from the fifth and sixth grades from the outlying white schools to the inner city black school.

Under the Finger plan, nine inner-city Negro schools were grouped in this manner with 24 suburban white schools.

On February 5, 1970, the District Court adopted the board plan, as modified by Dr. Finger, for the junior and senior high schools. The court rejected the board elementary school plan and adopted the Finger plan as presented. Implementation was partially stayed by the Court of Appeals for the Fourth Circuit on March 5, and this Court declined to disturb the Fourth Circuit’s order, 397 U.S. 978 (1970).

On appeal, the Court of Appeals affirmed the District Court’s order as to faculty desegregation and the secondary school plans, but vacated the order respecting elementary schools. While agreeing that the District Court properly disapproved the board plan concerning these schools, the Court of Appeals feared that the pairing and grouping of elementary schools would place an unreasonable burden on the board and the system’s pupils. The case was remanded to the District Court for reconsideration and submission of further plans.

II

Nearly 17 years ago, this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings. None of the parties before us challenges the Court’s decision of May 17, 1954, that,

in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated . . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . . .

None of the parties before us questions the Court’s 1955 holding in Brown II, that

School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

Over the 16 years since Brown II, many difficulties were encountered in implementation of the basic constitutional requirement that the State not discriminate between public school children on the basis of their race. Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then. Deliberate resistance of some to the Court’s mandates has impeded the good faith efforts of others to bring school systems into compliance. The detail and nature of these dilatory tactics have been noted frequently by this Court and other courts.

By the time the Court considered Green v. County School Board, 391 U.S. 430, in 1968, very little progress had been made in many areas where dual school systems had historically been maintained by operation of state laws. In Green, the Court was confronted with a record of a freedom of choice program that the District Court had found to operate, in fact, to preserve a dual system more than a decade after Brown II. While acknowledging that a freedom of choice concept could be a valid remedial measure in some circumstances, its failure to be effective in Green required that:

The burden on a school board today is to come forward with a plan that promises realistically to work . . . now . . . until it is clear that state-imposed segregation has been completely removed.

This was plain language, yet the 1969 Term of Court brought fresh evidence of the dilatory tactics of many school authorities. Alexander v. Holmes County Board of Education, 396 U.S. 19, restated the basic obligation asserted in Griffin v. School Board, 377 U.S. 218, 234 (1964), and Green, supra, that the remedy must be implemented forthwith.

The problems encountered by the district courts and courts of appeals make plain that we should now try to amplify guidelines, however incomplete and imperfect, for the assistance of school authorities and courts. The failure of local authorities to meet their constitutional obligations aggravated the massive problem of converting from the state-enforced discrimination of racially separate school systems. This process has been rendered more difficult by changes since 1954 in the structure and patterns of communities, the growth of student population, movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented. Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns.

III

The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown II. That was the basis for the holding in Green that school authorities are

clearly 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.

If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.

School authorities are traditionally charged with broad power to formulate and implement educational policy, and might well conclude, for example, that, in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.

The basis of our decision must be the prohibition of the Fourteenth Amendment that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”

IV

We turn now to the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause. Although the several related cases before us are primarily concerned with problems of student assignment, it may be helpful to begin with a brief discussion of other aspects of the process.

V

The central issue in this case is that of student assignment, and there are essentially four problem areas:

(1) to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system;

(2) whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation;

(3) what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and

(4) what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation.

(1) Racial Balances or Racial Quotas.

The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems.

We are concerned in these cases with the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task, and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination. We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree. This case does not present that question and we therefore do not decide it.

Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.

We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point, the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstance. As we said in Green, a school authority’s remedial plan or a district court’s remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.

(2) One-race Schools.

The record in this case reveals the familiar phenomenon that, in metropolitan areas, minority groups are often found concentrated in one part of the city. In some circumstances, certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominately of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.

In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not, in and of itself, the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, and will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but, in a system with a history of segregation, the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority’s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.

An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move.

(3) Remedial Altering of Attendance Zones.

The maps submitted in these cases graphically demonstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank — and sometimes drastic — gerrymandering of school districts and attendance zones. An additional step was pairing, “clustering,” or “grouping” of schools with attendance assignments made deliberately to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are neither compact nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court.

Absent a constitutional violation, there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations, and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.

No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. “Racially neutral” assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a “loaded game board,” affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.

In this area, we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals.

We hold that the pairing and grouping of noncontiguous school zones is a permissible tool, and such action is to be considered in light of the objectives sought. Judicial steps in shaping such zones going beyond combinations of contiguous areas should be examined in light of what is said in subdivisions (1), (2), and (3) of this opinion concerning the objectives to be sought. Maps do not tell the whole story, since noncontiguous school zones may be more accessible to each other in terms of the critical travel time, because of traffic patterns and good highways, than schools geographically closer together. Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations.

(4) Transportation of Students.

The scope of permissible transportation of students as an implement of a remedial decree has never been defined by this Court, and, by the very nature of the problem, it cannot be defined with precision. No rigid guidelines as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation’s public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country.

The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this case. The Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965, and then they allowed almost unlimited transfer privileges. The District Court’s conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record.

Thus, the remedial techniques used in the District Court’s order were within that court’s power to provide equitable relief; implementation of the decree is well within the capacity of the school authority.

The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and transported to the schools they were to attend. The trips for elementary school pupils average about seven miles, and the District Court found that they would take “not over 35 minutes, at the most.” This system compares favorably with the transportation plan previously operated in Charlotte, under which, each day, 23,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school.

An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets, but fundamentally no more so than remedial measures courts of equity have traditionally employed.

VI

The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term “reasonableness.” In Green, supra, this Court used the term “feasible,” and, by implication, “workable,” “effective,” and “realistic” in the mandate to develop “a plan that promises realistically to work, and . . . to work now.” On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity.

At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I.

It does not follow that the communities served by such systems will remain demographically stable, for, in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but, in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.

—————-

Handout:

I. The “Southern Strategy”

1. 1968 Election (George Wallace candidacy and emergence of right-wing populism—campaign against elites; Nixon, Phillips, Pat Buchanan, and origins of Southern strategy; campaigning against the Supreme Court—call for “strict constructionists”; race as a wedge issue to target the New Deal Democratic coalition)

2. Nixon, Race, and the Courts (Nixon as President—personality, agenda, difficulties; desire to appoint Southerner to Court: Haynsworth nomination; problems—conflict of interest allegations, segregationist past; Carswell nomination; perfunctory staffwork; segregationist past; emergence of competence issue—Hruska response; Rehnquist and Powell)

II. The Backlash Issues

1. Busing (legal liberalism and emergence of busing issue; Southern politics and Swann; GOP politics and Detroit case—path to 1972 election; northern targets—Boston and Garrity decision; class politics and South Boston—Louise Day Hicks; long-term effects of busing)

2. Crime (Nixon and “law and order” theme; legacy of urban unrest; inner cities and crack epidemic—crime as racial issue; Willie Horton and 1988 campaign; gradual decline)

3. Affirmative Action (bipartisan recognition of need: LBJ executive order, Nixon’s “Philadelphia Plan”; 1970s economic difficulties and growing backlash; Reagan to Neshoba County; Helms’ “hands ad”; Clinton: “mend it, don’t end it”; increasingly complicated—Grutter, Ricci decisions)

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