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Conclusion
- University of Michigan Press
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Conclusion The preceding chapters have attempted to tell a story of the school and housing segregation cases of the 1970s from the inside as they happened. In this sense, the book may offer a limited perspective because it portrays the apparent certitude of one side in the midst of a complex, adversary struggle. Yet the narrative avoids the false certainty that many pundits seem to find with the benefit of hindsight and the dubious objectivity of others who claim to be neutral observers rather than participants in the continuing debate over the nature, causes, and consequences of the extensive racial separation that still pervades our schools, housing, and community life. My contemporaneous understanding of the cases, therefore, may offer some insights that merit reflection. Consider the constraints imposed by traditional legal thinking on the Supreme Court's review of the segregation cases of the 1970s. This view of the judicial process is premised on a bipolar controversy in which a court decides a dispute between two parties and then provides a complete remedy to the plaintiff victim to overcome the precise effects of any particular wrong committed by the defendant. This approach does not begin to comprehend what a case challenging pervasive discrimination is all about. In Brown, the Warren Court recognized as much when it declared Jim Crow segregation unconstitutional because it was hurtful to human beings, even though the Court could not define the nature of the wrong with any clarity and deferred consideration of the scope of any meaningful remedy for years. In the segregation cases of the 1970s, Justices Rehnquist and Powell nevertheless argued that the judicial inquiry must be narrowly focused on wrongdoing by particular local officials, viewed in isolation from the historic context of any larger wrong and from any constitutional duty of each state as a whole to afford protection from community customs of caste. Any remedies would then be carefully tailored to do no more than overcome the incremental effects of a particular defendant's specific wrong on current conditions. From this perspective it was easy for these justices, who did not have to confront the conflicting evidence in person at trial, to rationalize racial segregation as the product of ethnic pluralism and voluntary choice rather than racial discrimination . Their concern over the apparent hostility to mandatory school desegregation remedies prompted use of such techniques to avoid consideration of the two basic violation issues: Is the almost complete separation of blacks from whites across metropolitan America a legacy and continuing engine of caste? If so, should we as a people, through our state and federal governments, be 395 396 Beyond Busing held responsible for refusing to confront any such wrong? Instead, these justices sought to absolve white America from responsibility for the ghetto. Yet other members of the Supreme Court, who seemed more sympathetic to minority claims of discrimination, also sought shelter in narrow legalisms: like their brethren on the Burger Court, they used the shibboleth that the nature of the violation determines the scope of the remedy, but to desegregate schools within local school districts rather than to rationalize racial segregation . For example, Justices White and Brennan focused their majority opinions for the Court in the Dayton, Columbus, and Denver cases on intentionally segregative acts of particular local officials and ignored the people's broader responsibility for pervasive racial separation in schools and housing. District judges like Roth, Duncan, Wright, and Schwartz grappled with the evidence and their own conscience for months. They found an interlocking web of racial discrimination that contributed to racial segregation in all aspects of community life. Yet in everyone of these cases the majority on the Burger Court sought to avoid the broader issue, whether the ruling legitimized or condemned particular aspects of racial separation. It was as if all of the justices were trapped by their fears that the only role for the Court in the shifting political tides concerning race in America was to justify (or to avoid) particular remedies by narrowing the focus of the judicial inquiry of right and wrong to clearly identifiable, racist acts by specific officials. In the process, the advocates who tried their cases in trial courts to prove a broader understanding of caste discrimination in America generally had to narrow their cases in the appellate courts in order to have a better chance of ultimately prevailing. When they could not, as in the first round of the Detroit case in the Supreme Court, a majority of the justices...