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Retrospect The Supreme Court's bitterly contested 5-4 ruling in the Detroit school case in July of 1974 effectively curbed any claim that racial ghettoization in urban America created a caste color line in violation of the Constitution. In the oral arguments before the Court in February, 1974, Michigan attorney general Frank Kelley claimed that this was "a classic case of a remedy in search of a violation." The proposed remedy of mandatory busing of hundreds of thousands ofstudents back and forth between more than fifty suburban districts and Detroit, he argued, was at odds with any constitutional violation, which was confined solely within the boundaries ofthe Detroit school district. In truth, however, there was no such massive, interdistrict desegregation busing remedy then before the justices. The Sixth Circuit had already vacated district judge Stephen Roth's remedy rulings, which outlined parameters for considering a desegregation plan to include Detroit's neighboring suburbs. Through our lead cocounsel, Nate Jones and Nick Flannery, we therefore tried to persuade the Court that this was instead a classic case ofa massive wrong in search ofprobing and sympathetic review by each ofthe justices. We asked the Supreme Court not to focus on any speculative remedy that was not yet properly before the Court but instead to examine more deeply all of the evidence presented to support Judge Roth's finding ofa more pervasive violation below. We tried to persuade the Supreme Court that a host ofdiscriminatory public actions at all levels ofgovernment and exclusionary customs and usages operated to confine black families and children within an expanding core ofblacks-only housing and schools, always separate from an expanding ring of virtually allwhite schools and neighborhoods. In fact, the only remedy issue conceivably ripe for review was whether a single plaintiff black family could choose to walk their child across the latest manifestation ofthis color line to a school on the other side ofthe boundary ofthe Detroit school district. A five-person majority on the Burger Court refused our invitation to probe this key violation issue without regard to any remedy and instead focused on Judge Roth's supposed preoccupation with a massive, cross-district busing remedy throughout the metropolitan area to desegregate Detroit schools. These five justices chose to cabin the violation within the confines of the Detroit school district so that any busing remedy would be contained within its borders. As advocates, we failed to persuade the key swing vote, Justice Harry Blackmun, who would within a few years provide the decisive vote to uphold systemic violations and sweeping busing remedies within Columbus and 403 404 Beyond Busing Dayton and across local school district boundaries throughout the greater Wilmington area. In dissent, Justice Thurgood Marshall, the fierce lion who twenty years earlier had brought simple justice to the Warren Court and the country in striking down state-mandated Jim Crow segregation in Brown, plumbed the nature and depth of the wrong seen by Judge Roth. After summarizing the evidence and findings of the state's responsibility for the discrimination in schools and housing causing racial ghettoization in metropolitan Detroit, Justice Marshall concluded, "It will be of scant significance to Negro children, who have for years been confined by [intentional] acts of segregation to a growing core of all-Negro schools surrounded by a ring of all-white schools, that the new dividing line is the school district boundary." As a result, in Michigan today more than 60 percent ofblack students are still contained in virtually all-black schools. I will carry my share ofthe responsibility for failing to persuade a majority of the Burger Court with me to my grave, perhaps more so than Judge Roth. As he was dying in the summer of 1974, before the Burger Court's ruling, at least he and his widow had good reason to believe that others would carry on with the responsibility ofpersuading the courts and the country ofthe compelling evidence ofconstitutional wrong he saw during more than a hundred days in the crucible of trial: a caste system of racial ghettoization that divided the Detroit metropolitan area along an unmistakable color line, as the black ghetto continued to expand as a place ofrefuge as well as confinement for most black families. It was not to be. The Burger Court's focus on containing both busing as a remedy and any violation to particular acts of discrimination within the center city was a fool's game. It made false assumptions about causation. It limited...

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