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Chapter 15. The Briefs and Arguments in the Supreme Court
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Chapter 15 The Briefs and Arguments in the Supreme Court Preemptive Strike While schools in Columbus and the Wilmington area were finally poised to begin actual desegregation in September, 1978, the Dayton, Columbus, and Wilmington cases were coming up for final review by the Supreme Court. On August 1, 1978, the Columbus Board of Education had filed an application for delay of school desegregation with Potter Stewart, the justice responsible for overseeing the activities of the Sixth Circuit. With rare exception, circuit justices, whatever their personal misgivings or view of the merits, routinely denied such requests for delay. One day after receiving the Columbus board's request, Potter Stewart denied the application for stay without opinion. Sam Porter was not daunted. As the Columbus Citizen-Journal reported, he just''shop[ped the] Supreme Court for a justice to delay busing. " William Rehnquist, the associate justice to whom the board's attorney next delivered the stay application, directed plaintiffs to respond in writing by August 10. Such renewed requests for stay "are not favored" under the Supreme Court rules and are granted even more rarely by any second justice. Yet the call for a response meant that Rehnquist was actively considering just such extraordinary action. Lucas drafted a reply to set the record straight both on what the lower courts ruled and on how a stay at this late date would cause extensive di~rupĀ tion. The Columbus board and community were fully prepared for desegregation , not a precipitous return to segregation. The board had already purchased and received the buses, hired and trained drivers, reassigned pupils and notified parents, reassigned teachers, closed certain schools, reorganized curriculum , and undertaken an extensive community relations program. On the afternoon of August 10, Lucas filed a response arguing that "the most costly and disruptive action which could now be taken would be to undo the work of thousands of people, community leaders, school administrators, teachers, parents and pupils, all of whom are geared for the commencement of desegregation. " On the morning of August 11, Justice Rehnquist issued a printed order and opinion granting a stay pending the board's petition for Supreme Court review. Rehnquist accepted the board's representations concerning the projected fiscal burden of desegregation and pointed to "the personal disloca343 344 Beyond Busing tions that accompany the actual reassignment of 42,000 students, 37,000 of whom will be transported by bus. " Rehnquist could not see that a community preparing for desegregation for the last eighteen months might be considerably set back by the notion that all this effort was a false start. Rehnquist was even more abrupt in discussing the lower court's declaration of black plaintiffs' right to a system of desegregated schooling. He conducted a preemptive first strike to interpret the meaning of the Supreme Court's opinion in the first Dayton case that would curtail sharply, if not ban, all busing. Rehnquist wrote that the "incremental segregative effect" test "mandated . . . specific findings on the impact discrete segregative acts had on the composition of individual schools within the system. " This may have been the meaning intended by Justice Rehnquist when he wrote the first Dayton opinion. But it represented the restrictive principle articulated in his dissent in the Denver case and the separate minority opinion in the Austin case, not the full Court's opinions rejecting any such school-by-school, violation -by-violation approaches in the Denver and Swann cases. With his stay opinion, Rehnquist staked out a reading of the first Dayton opinion that the full court had not been willing to embrace: Rehnquist's opinion for the Court in Dayton had expressly relied on, rather than reversed, the full Court's opinions in Denver and Swann. Displaying his frustrations with the refusal of the appeals court to heed his call to retreat, Rehnquist stated, "the Sixth Circuit has misinterpreted the mandate of this Court's Dayton opinion." Quoting only one phrase, out of context, to support his reading of the Sixth Circuit's rulings, Justice Rehnquist asserted: The Court of Appeals employed legal presumptions of intent to extrapolate systemwide violations from what was described in the Columbus case as "isolated" instances. The Sixth Circuit is apparently of the opinion that presumptions, in combination with such isolated violations, can be used to justify a systemwide remedy where such a remedy would not be warranted by the incremental segregative effect of the identified violations. Justice Rehnquist distorted Judge Edwards's use of the phrase "isolated" in the...