Desegregation & Remedies

by
 Samuel S. Wilson¹

Any history of lower federal courts since 1954 must emphasize remedies. The Sixth Circuit, especially its district courts, has been no exception. The reason for this emphasis has been major new constitutional doctrines, announced by the Supreme Court but left largely to the lower federal courts to implement.

As we have seen, reapportionment created major remedy problems in the middle 1960's.² These, however, were relatively minor compared to those which have arisen in increasing complexity since the desegregation decision of 1954.³ The Sixth Circuit's experience in desegregation has been unique among the circuits. Two of the Sixth Circuit's four states, Kentucky and Tennessee, had segregation by express provision of law. The other two states, Ohio and Michigan, did not have segregation of this type but in many communities had segregation created by different means.⁴

Thus the Circuit had both cases of the "Southern and Northern" type. Both types are bewildering in number and complexity. To avoid excessive length or, alternatively, mere cataloging, this history will concentrate on Milliken v. Bradley,⁵ the Detroit metropolitan desegregation case which presents the remedies problem at its most difficult. For comparison, the 1959 Nashville case will also be discussed in detail, as an example of a Southern case decided some 15 years before Milliken.

The Nashville case⁶ began at the very beginning. Plaintiffs sought a three-judge District Court to pass on whether Tennessee's school segregation laws were constitutional. Such a panel⁷ was convened but after attorneys for the Board conceded that these laws were indeed unconstitutional, the panel granted a motion dissolving itself and remanding to a single District Judge.⁸

The next step was the enactment by the Tennessee state legislature in 1957 of statutes designed to continue segregation without actually coming out and saying so. This technique was widely used in other Southern states.⁹ In Tennessee the legislation featured a "School Preference Law," which allowed parents to elect to send their children to single-race schools, and a "Pupil Assignment Act," which allowed boards of education to assign pupils to particular schools. The Board moved to dismiss the complaint on the ground that plaintiffs should be required to exhaust their administrative remedies under the Board's new authority to make pupil assignments.¹⁰

Judge William E. Miller denied the motion, explaining:

To require the plaintiffs to go before the board committee in advance to a continuance of compulsory segregation would be to require them to perform a futile act or to pursue a remedy which would have no reasonable prospect of success.¹¹

He then rejected a "voluntary" desegregation plan offered by the Board. He said the plan, based on Tennessee's School Preference Law, "wholly fails to meet the test of constitutionality."¹²

In April, 1958, the Board filed another plan which the Court approved in June. This plan called for desegregating the Nashville schools at a rate of one grade per year, beginning with the first grade. Moreover, parents could choose not to have their child attend a school which had formerly served only pupils of another race or where he or she would be in a racial minority.

It is important to note the mildness of this plan. Both of its principal elements would be held, within a decade to be constitutionally insufficient as desegregation remedies.¹³ Moreover, its operational effect was almost de minimus. Nashville had 3,400 first graders. Of these 1,400 were black, but only 115 black children and 55 white children lived in attendance zones where they would normally go to school with children of another race. The parents of all 55 white children and 105 of the 115 black children exercised their option to have their children attend one race schools. So all of 10 black children were actually involved in the Nashville plan.¹⁴

The violent foes of desegregation were not deterred. The restrained judicial language of Chief Circuit Judge Thomas F. McAllister described the situation this way:

The entry of the judgment . . . gave rise to violence on the part of criminal elements opposed to desegregation, who wrecked a city school by bombing and destroyed a synagogue by the same means. Unlawful crowds of disorderly persons caused great trouble and turbulence until the district court restrained one Kasper and others, by injunction, from acts of violence, intimidation, coercion and incitement. In granting the injunction, the district court declared that the action of the Board of Education in putting into effect the order and judgment of the court "precipitated a situation in the City of Nashville which very nearly approached for some several hours' time--if not for several days' time--reign of terror, certainly a reign of terror among those parents having children in the public schools, particularly in the first grade schools".¹⁵

The Kasper referred to by Judge McAllister was John Kasper, an itinerant fomenter of violence in Southern communities where desegregation was being undertaken. He achieved national notoriety¹⁶ in Clinton, Tenn., where a desegregation order had been issued by District Judge Robert L. Taylor of the Eastern District of Tennessee, Northern Division.¹⁷

That order took effect in August, 1956, when 12 blacks began attending Clinton High School. All was calm until Kasper arrived "from somewhere in the East"¹⁸ on August 25. He immediately undertook to ferment opposition. Quickly he produced mass picketing and an attack on one of the black children. On August 29 the District Court issued a restraining order but Kasper was undeterred. By September 1, a mob of 3,000 persons had formed. Order was finally restored by more than 600 National Guardsmen using fixed bayonets. Meanwhile Kasper was sentenced to one year in jail for contempt but released on bail pending appeal.

In 1957 he was convicted of contempt again. This conviction was based on efforts of his henchmen in December, 1956, to intimidate black children and more particularly, a minister, the Rev. Mr. Turner, who had been convoying the black children to school. The Clinton chief of police testifted that one of the henchmen said he was there "to keep us 'nigger lovers' from taking those 'niggers' to school." Later, Chief Judge Florence E. Allen wrote:

Turner walked on and Cook attacked him. Turner backed away but was followed and Cook struck Turner, who was unarmed. Turner pushed his way through the crowd to an automobile and was pounded against the fender. Turner fell on his knees and his head was pushed against the fender while the crowd yelled "Kill him."¹⁹

In this violent context, the Sixth Circuit's affirmance²⁰ of the mild Nashville plan seems anti-climactic, but Judge McAllister perceived the even larger problems ahead when he wrote:

Here, however, comes into play a factor that complicates the desegregation of schools--residential segregation, one facet of the problem that, like school segregation and other discrimination, results in what might be termed economic segregation, a virtual denial of equal opportunity of work, employment, living conditions, advancement, and income, existing in varying degrees in every state in the union.²¹

During the 1960s the focus of desegregation almost literally moved north. The migration of blacks from the rural South to the inner cities of the North accelerated. Concurrently whites were moving from the inner cities of the North to the suburban areas surrounding those cities. Usually these suburban areas were not included in the inner city school districts.²²

The process of desegregation continued in the South albeit sometimes slowly,²³ but by the mid-1960's it was clear that desegregation problems were not limited to the South. In fact, it began to appear that the Northern variations would be even more intractable than those in the South.

The Northern cases presented two basic issues.

1. Where segregation had not been specifically provided by law, what constitutionally constituted segregation?
2. Once segregation had been established, what was the scope of the remedy which the District Court could employ to desegregate?

Milliken began as a case principally involving the first question and wound up making constitutional history on the second. Under the first issue, the first subquestion was whether de facto segregation constituted a constitutional violation. The term referred to a situation where the races were in fact generally separated in the schools but where there was no proof that the defendant board of education had acted to further this separation. The Sixth Circuit held this not to be a violation in Deal v. Cincinnati Board of Education²⁴ and this view was reaffirmed by the Supreme Court in the Denver, Colorado case.²⁵

The next sub-question was whether a constitutional violation could be established--de jure--by school board actions designed to further segregation although ostensibly having other purposes. Examples were the drawing of school attendance zone lines and the selection of school sites in a way that furthered segregation.

In a sense this point had been decided in 1956 in the Hillsboro case²⁶ although the devices used there were primitive. So, it was not with great difficulty that the Sixth Circuit found such segregation in the Pontiac, Michigan case.²⁷ The Supreme Court took the same approach two years later in the Denver case.²⁸

When the Milliken case began in August 1970, it appeared principally to involve this same kind of indirect de jure segregation. The plaintiffs, the NAACP as well as individual students and parents, did not ask for a remedy going beyond the Detroit school district nor did they make any of the suburban school districts parties to the litigation. The case was important, if only because of the size of the city it involved. In addition, the plaintiffs were planning to use extensive evidence of housing patterns, to show de jure segregation and involvement of the state herein.²⁹ State officials were made parties, partly to establish this link.

The trial on the merits began on April 6, 1971. As the trial proceeded, the evidence indicated that the large majority of students in the Detroit schools were black and that the majority was growing.³⁰ It became clear to District Judge Stephen J. Roth that there were not enough whites left in the Detroit school system to accomplish desegregation.³¹ However, most of the school districts immediately contiguous to Detroit were predominantly white.

On July 16, 1971, six days before the trial ended, parents of white students in the Detroit schools moved as intervening defendants to join 85 other school districts in metropolitan Detroit as defendants. Judge Roth deferred ruling on the motion. In September he found that segregation existed and asked for desegregation plans.³² The Detroit Board of Education was to submit plans limited to its district; the state defendants were to submit plans covering the metropolitan area.

In March, 1972,³³ events proceeded rapidly. On March 14, Judge Roth began hearings on the Detroit-only plans; on March 15, he allowed the suburban districts to intervene, and on March 28, he rejected the Detroit-only plans and began hearings on a metropolitan plan. These lasted until April 14. On June 14, Judge Roth marked out the boundaries for a desegregation plan including 53 suburban districts and appointed a panel to develop a plan.³⁴ He acknowledged that he had taken no proofs as to whether any of the suburban districts had engaged in acts of de jure segregation.

Before discussing the fate of Milliken on appeal, one should note the political temperature of Detroit while the District Court was hearing the case. In 1965, Detroit elected a pro-integration school board, but by 1969 the board had run into bitter opposition not only from the usual sources but also from many blacks who favored community control of parts of the school district. These blacks reasoned that certain schools might be all-black but they would be controlled by black communities.³⁵

The school board, however, proceeded with integration. In April, 1970, it adopted a detailed plan, which promptly produced a political explosion. The Michigan legislature quickly adopted a statute barring the board from implementing its plan.³⁶ Meanwhile, the board's opponents proceeded with a recall election on August 4, 1970, which unseated four school board members who had supported the integration plan. Two weeks later the complaint in Milliken was filed.

The commotion continued. After his finding of segregation in September, 1971, Judge Roth became a principal target. A Detroit journalist wrote:

Bumper stickers with comments such as 'Roth is a four-letter word,' 'Pith on Roth' and 'Judge Roth is a child molester' appeared on cars throughout the metropolitan area. Judge Roth never publicly acknowledged the criticism, and he rarely talked about it even privately. He was annoyed, however, that resolutions praising his restraint and fairness which were passed by the American and Michigan bar associations did not receive any attention in the media, although such incidents as a mock trial which ended in an effigy of Judge Roth being hanged before a jeering crowd were well reported.³⁷

Judge Roth suffered his first heart attack in November, 1972, and died of his third on July 11, 1974, at 66. He was replaced on the case by District Judge Robert E. DeMascio. The Sixth Circuit, sitting en banc, affirmed by a divided court Judge Roth's order for a metropolitan remedy. The opinion of the Court by Chief Judge Harry Phillips, consisted largely of an exhaustive analysis of the record and an agreement with the District Judge that effective desegregation could only be achieved by a metropolitan remedy.³⁸

In dissent, Judges Paul C. Weick and W. Wallace Kent previewed the Supreme Court position that the remedy could not include school districts which had not themselves engaged in acts of segregation. Judge William E. Miller also dissented. His point was that the suburban school districts had come into the litigation too late to represent their positions effectively.

As indicated, the Supreme Court by a 5-4 margin largely adopted the views of Sixth Circuit dissenters.³⁹ Remedies could not cross school district lines unless acts of segregation were shown. This rule was applied even though, as a practical matter, effective desegregation could not be produced by intra-district means. The dissenters were Justices William J. Brennan, Jr., William O. Douglas, Thurgood Marshall, and Byron R. White.⁴⁰

Milliken⁴¹ did not foreclose inter-district remedies where all the districts involved engaged in acts of segregation. Under that theory, the Sixth Circuit has been implementing a metropolitan desegregation plan in Louisville and the surrounding county.⁴² Of course, Kentucky operated wholly segregated school systems until the Brown case in 1954.

As of 1976, the desegregation history is not finished. Thus far it has been troubled. As this chapter has indicated, the process has been slow and resistance has sometimes exceeded the limits of decent conduct. It has generally been a proud chapter for the federal judiciary. There are few better examples of judges implementing the law regardless of community pressures and personal consequences than those of the Sixth Circuit.