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Today’s is the anniversary of the Brown v. Board of Education of 1954. Much has changed. Barack Obama was elected President twice. But much has not changed. The desegregation of schools that once seemed inevitable stalled, inhibited by white flight from urban districts and housing desegregation.
Historian Matthew D. Lassiter of the University of Michigan argues in this opinion piece in the Washington Post that desegregation failed because of white resistance and pusillanimous federal courts, which turned against desegregation as Republican presidents added conservative justices to the Supreme Court.
Fifty years ago today, the Supreme Court issued the landmark decision of Swann v. Charlotte-Mecklenburg, the most far-reaching school desegregation case since Brown v. Board of Education in 1954. The Swann ruling upheld a lower court-imposed plan to integrate the public schools of metropolitan Charlotte through two-way busing between the segregated White suburbs and the all-Black central city neighborhoods.
During the next few years, busing helped transform the public schools in the states of the former Jim Crow South into the most racially integrated in the nation. The technique proved successful despite intense opposition that ranged from White resistance movements to the administration of president Richard Nixon.
But the Supreme Court deserves very little credit for this development, which depended on the NAACP’s visionary litigation and Charlotte having previously merged its schools with the outlying suburbs of Mecklenburg County. Chief Justice Warren Burger, the author of the Swann decision, actually wanted to overturn the Charlotte busing plan but could not achieve a majority to do so. Instead, he wrote a reluctant and convoluted opinion that provided a road map for metropolitan areas in the North and West to avoid meaningful school desegregation — something that became clear three years later in Milliken v. Bradley, when Burger helped invalidate an almost identical district court decision ordering two-way busing between the city and suburbs of Detroit.
The lesson? Then, and now, a supermajority of White Americans, both political parties and all three branches of the federal government have opposed the public policies necessary to dismantle housing and school segregation that stems from decades of government policy.
Indeed, by the mid-1970s, the Supreme Court established formidable barriers to meaningful integration and equitable access in urban and suburban neighborhoods that remain largely intact to this day, including decisions upholding the discriminatory policy of exclusionary zoning and allowing suburbs to ban low-income housing.
Despite popular narratives that focus on civil rights battles as a Southern issue, White resistance to substantive school desegregation happened across the country. In fact, the first organized antibusing movement in the nation began in 1964 in New York City, when several hundred thousand White families boycotted the public schools to protest a very modest desegregation plan that violated their racist conception of “neighborhood schools.”
During the mid-1960s, the NAACP launched an “all-out attack … against Jim Crow schools northern style.” But, the federal courts blocked its campaign, seeing segregated urban schools outside the South as a result of market-based patterns of neighborhood housing segregation and not unconstitutional state action.
This stark distinction between “de facto” segregation in the North and West and “de jure” segregation in the Jim Crow South was, however, a legal and political fiction. In fact, a vast array of government policies had divided metropolitan areas nationwide along racial lines, from redlining in the mortgage market to gerrymandered neighborhood schools.
The “de facto” defense soon became political ammunition for White resistance to integration in the metropolitan South. In fighting the Swann case, the White leaders and suburban parents in Charlotte insisted their “neighborhood schools” were not racially segregated by law or state action, a strategy they adopted directly from cities and suburbs in the North and West. Initially, the Fourth Circuit Court of Appeals dismissed the NAACP’s Swann lawsuit in a 1966 ruling that stated the city had complied with Brown by adopting the Northern model of neighborhood-based schools.
During the next few years, the NAACP built a new case, arguing that because the policies of the municipal and federal governments had caused nearly comprehensive housing segregation in Charlotte and its suburbs, the resulting racial segregation in its neighborhood school system violated the Brown mandate.
It worked. District Judge James McMillan had a conversion experience as the NAACP presented this evidence and later remarked that “I lived here 24 years without knowing what was going on.” He ordered two-way busing between White and Black neighborhoods based on the finding that government policies had shaped racial segregation in housing patterns so thoroughly that the direct effect on school enrollments “is not innocent or ‘de facto.’”
In response, more than 100,000 White suburban parents formed a powerful antibusing movement and promised to appeal to the Supreme Court. They argued that racism and segregation had nothing to do with their neighborhood schools because they had bought their homes through hard work in a free market. They rejected the judge’s repeated explanations that a history of state-sponsored housing segregation had made their version of the American Dream possible — and unconstitutionally excluded Black residents of the city from it.
So did President Nixon. Thousands of White parents from Charlotte wrote letters to the White House identifying themselves as members of the “silent majority” and demanding federal intervention to protect White Americans from the alleged “reverse racism” of “forced busing.” The Nixon administration responded with a major policy statement calling for one national standard on school desegregation. It argued that “de facto” segregation stemming from metropolitan housing patterns was legal, nonracial and exempt from the scope of Brown.
On April 20, 1971, the Supreme Court upheld the two-way busing order in Swann v. Charlotte-Mecklenburg. The text of the decision was intentionally vague and internally contradictory. Significantly, it evaded McMillan’s central finding that state culpability in housing segregation required a remedy in the public schools. Instead Swann announced a discretionary “reasonableness” standard to assess whether the scope and burdens of a desegregation formula were practical or not. In a revealing double negative, Chief Justice Burger wrote that “we are unable to conclude that the order of the District Court is not reasonable.”
The legacy of Swann therefore came to depend on the discretionary decisions of lower-court judges. In short, the constitutional right to desegregated schools promised in Brown meant different things across the country. Different political jurisdictions in the same metropolitan region often followed different rules.
Charlotte became one of the nation’s most integrated urban school systems because White families could not easily escape the metropolitan-wide desegregation plan. Court-ordered busing in a number of other Southern metropolises also achieved relatively high integration levels because many of them, too, had annexed their suburbs or already had consolidated countywide school districts.
This fact would become crucial after a federal district judge ruled that Detroit’s “de jure segregated public school system” resulted from local, state and federal government policies “to establish and maintain the pattern of residential segregation” throughout the metropolitan region. In Milliken v. Bradley (1973), the Supreme Court overturned this ruling based on Swann’s “reasonableness” standard and effectively exempted autonomous suburban districts nationwide from the scope of Brown. White parents in most cities knew that if they moved to the suburbs, their children would be beyond the reach of any busing plan.
In Boston, the violent White working-class resistance to school desegregation inside the city limits led to a new political consensus that court-ordered busing was a disastrous failure. But the problem was actually far too little court-mandated school desegregation because it exempted White residents of suburban Boston. This pattern prevailed throughout the North and West as well as in major Southern cities such as Atlanta.
Since the late 1980s the Supreme Court has first permitted the end of judicial supervision of school desegregation and then subsequently required the end of affirmative action to maintain integrated schools. The result has been a process of resegregation and the reversal of the progress achieved during the 1970s through court-ordered busing. In Charlotte-Mecklenburg, the federal courts have even banned the use of any race-conscious techniques to maintain integration by classifying them as reverse discrimination against White students.
The Supreme Court nationalized this evisceration of Brown in a 2007 case involving Seattle and Louisville where Chief Justice John G. Roberts Jr.’s controlling opinion invalidated modest voluntary integration strategies by equating them with the unconstitutional practices of Jim Crow. This deliberate inversion of the moral categories and the historical narrative of the civil rights movement went far beyond the Supreme Court’s poison pill of “reasonableness” in the 1971 Swann decision, but both landmark cases shared a common thread: the refusal to even acknowledge, much less confront, the burdens of White supremacy and government-sanctioned racial segregation nationwide.
For the federal judiciary, this civil rights history does not actually matter at all. But it should, and it shows the path forward for the very public policies needed to redress inequalities in housing and education.