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Chapter 8. The Supreme Court Sounds Retreat, December, 1976, to June, 1977
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Chapter 8 The Supreme Court Sounds Retreat, December, 1976, to June, 1977 Bad Omens By the end of November, 1976, I was becoming concerned. Judge Rubin had scheduled a hearing on the board's motion against the state for financial assistance and asked that plaintiffs present their fee application at the same time. The date for the hearing approached, however, without the expected denial of review by the Supreme Court. I suggested to Dave Greer that we postpone the hearing, even if it was unlikely that the high court would overturn a desegregation plan already in operation and thereby resegregate the schools. I felt it might be presumptuous to seek payment for a legal victory while the Dayton board's petition to review the entire case was still pending in the Supreme Court. On December 6, 1976, the Supreme Court vacated Judge Wisdom's ruling for the Fifth Circuit which had found unconstitutional school segregation against Hispanic Americans and ordered systemwide, triethnic desegregation in Austin, Texas. Although Judge Wisdom's opinion sought to blur the distinction between de jure and de facto standards, the evidence and findings included many examples of classic segregation devices. Without briefs or arguments from the parties, the Court remanded the case, over the dissents of Justices Brennan and Marshall, to the Fifth Circuit for reconsideration in light of the "intent" requirements recently established by the Court in the case involving alleged employment discrimination by the District of Columbia police. Such a summary disposition was troubling. At best, it was a less than subtle command to Judge Wisdom not to extend the verbal net of de jure or intentional segregation beyond the limits developed by the Supreme Court. At worst, it meant that a majority of the Supreme Court was girding for a retreat from decisions such as Swann and the Denver case. A separate opinion filed by Justice Powell (joined by Chief Justice Burger and Justice Rehnquist) was even more troubling. It made clear that these three Nixon appointees had set aside their conceptual differences to advance housing "imbalance" as an excuse for virtually all school segregation: As is true in most of our larger cities with substantial minority populations , Austin has residential areas in which certain racial and ethnic groups predominate. Residential segregation creates significant problems 165 166 Beyond Busing for school officials who seek to achieve a nonsegregated school district . . . . The principal cause of racial and ethnic imbalance in urban public schools across the country-North and South-is the imbalance in residential patterns. Such residential patterns are typically beyond the control of school authorities. For example, discrimination in housingwhether public or private-cannot be attributed to school authorities. Economic pressures and voluntary preferences are the primary determinants of residential patterns.... The tendency of citizens of common national or ethnic origins to form homogeneous residential patterns in our cities is a familiar demographic characteristic of this country. Powell added a theory of causation that could lead to a wholesale retreat: "I merely emphasize the limitation repeatedly expressed by this Court that the extent of an equitable remedy is determined by and may not properly exceed the effect of the constitutional violation. Thus, large-scale busing is permissibIe only where the evidence supports a finding that the extent of integration sought to be achieved by busing would have existed had the school authorities fulfilled their constitutional obligations in the past. ' , Powell's view, of course, did not present a uniformly accepted view of reality. In many cases, trial judges had found that the evidence demonstrated (a) a two-way causal interrelationship between school and housing segregation over time and (b) racial discrimination as a primary cause of segregation. Powell nevertheless posited that racial segregation in America was just a "natural ethnic phenomenon" by which blacks chose to segregate themselves . He argued that school authorities were free to incorporate such voluntary , self-imposed, residential school segregation in neighborhood schools. This' 'ethnic diversity" and' 'cultural pluralism" rhetoric had become fashionable among neoconservatives and even some black intellectual pundits. It was the bedrock of President Nixon's program of continued racial ghettoization under the "benign neglect" banner as articulated by Pat Buchanan's memo, "The Ship of Integration is Sinking." In adopting this new "ethnic diversity" banner, Powell dropped any aura of dispassionate compromise that might have accompanied his curious dissent in the Denver case calling for a right to "integrated schools" but providing segregated neighborhood schools as the only remedy. Powell now said that, presumptively, most...