In lieu of an abstract, here is a brief excerpt of the content:

195 MASSACHUSETTS 34 Brown Comes to Boston: a Courtside View Terry Jean Seligmann It was the fall of 1973, my third year of law school, and I had just been chosen to be the law clerk for a federal district judge for the 1974–1975 year. When I asked the judge whether there were particular courses that might be helpful for me to put in my spring schedule to prepare for the clerkship, he suggested Antitrust and Securities Regulation. Reluctantly but dutifully, I signed up. In June of 1974, a few weeks before my clerkship was to begin, the judge issued an opinion, following two years of trial proceedings, that found intentional segregation in the Boston school system—Morgan v. Hennigan, which would be affirmed by the First Circuit in Morgan v. Kerrigan. For the fall of 1974, he ordered into effect a desegregation plan drawn up by the Massachusetts Board of Education under its state racial imbalance law. The judge was W. Arthur Garrity Jr. No class could have prepared me for the next year. A law clerk occupies a unique position in the judiciary. She is not appointed to the bench and in public performs no official functions. She may sit to the side during hearings, taking notes. She may accompany the judge during recess. Few litigants know her function. The parties’ focus is on the judge, not the clerk. Counsel has a greater sense of the potential of the law clerk to affect a case. Attorneys know that law clerks review the legal memoranda filed by the parties and may draft orders or opinions on motions and other matters for the judge’s review. They may suspect that judges discuss cases with their law clerks, sharing their thinking and soliciting their views. But contacting the law clerk outside court can be as ethically questionable as trying to speak with the judge ex parte. So the law clerk retains an anonymity not shared by the other participants in the litigation. The clerk’s loyalty is to the judge and the court. This includes a duty of confidentiality that is deeply felt and seldom breached, either during or after the clerkship. yet the clerk both witnesses and participates in what the court does. In the Boston school case, this meant that I was about to witness and participate in major political, legal, and social events. To many Americans, the images that represented resistance to school 196 De Facto States integration had been Southern ones—the Little Rock Nine entering Central High School in 1957 surrounded by jeering crowds; Governor Wallace blocking the doorway of the University of Alabama in 1963. Less known were places like Fayetteville, Arkansas, where the public high school quietly admitted nine black students in September of 1954 after the Brown decision, and where in 1948, the law school where I taught admitted Silas Hunt, the first black student, without compulsion. The attitudes of the political and community leaders, it seemed, had made a difference between peaceful and violent integration. Boston was proud of its history as the cradle of liberty, the home to abolitionists , the intellectual “Athens of America.” But its public school system entering the 1970s was far from one to be proud of. Educational achievement and opportunity had taken a back seat to racial politics. The evidence before the court had shown that school districts were deliberately manipulated to maintain racial segregation between adjacent areas. New school buildings were located to continue rather than reduce racial isolation. In white, predominantly Irish South Boston, the high school had become an icon of the community, despite the high dropout rate and low percentage of graduates pursuing a college education. For too many years, politicians had succeeded in citywide school committee elections by championing the “neighborhood school” and opposing “forced busing,” with little attention to the education students were receiving. When the decision finding de jure segregation of the school system was issued, few were surprised. To most legal observers, it was an inevitable decision and one that was affirmed by the First Circuit. In the summer of 1974, the political leaders of Boston faced the imminent prospect of children from predominantly black Roxbury attending South Boston High School under the state plan referred to as “Phase I” of the court’s remedial orders. Many were shocked that the judge had adopted the state’s plan; they had hoped he would defer it while remedies specifically designed to address the federal constitutional violations were designed and...

Share