Knowledge And Decisions

Whatever the strategic merits of this approach, it also had momentous other consequences. It made the Supreme Court a party to an ongoing adversary relationship with institutions over whom it was established to have jurisdiction and to make rulings impartially. Moreover, it was a virtual invitation to evasions and delay, in as many forms as human ingenuity could devise. This in turn meant that the courts had to monitor in detail the laws, plans, regulations, and organizational patterns of institutions ranging all the way down to local school boards. Courts had to go beyond defining legality to determining “good faith.” Among the evidences of good faith were the numbers of black children actually integrated into white schools — numbers that were often zero in some Southern states. For about a decade after the Brown decision, racial segregation by the state public schools remained entrenched in the Deep South.

As time went on, it became clear that courts could effectively enforce their orders on other institutions, that local, state or — if necessary — national government officials would use police or troops to prevent “the law of the land” from being openly defied. Time also permitted the most bitter opponents of racial desegregation to withdraw their children from public to private schools, or to move out to all-white suburban areas, weakening the effective opposition. As the balance of political power turned against their adversaries who had frustrated them for so long, the courts began to issue more and more sweeping orders, involving the courts more and more in the detailed operations of school systems.

Initially, the Brown decision required no more than that the state could no longer use race in assigning children to schools. This was reaffirmed in a later (1963) case where “racial classifications” were “held to be invalid.” This position also appeared in the 1964 Civil Rights Act, which defined “desegregation” as the assignment of public school pupils “without regard to their race, color, religion, or national origin,” and specified that it did not mean assignment “to overcome racial imbalance.”¹³⁰ Indeed, such language appeared repeatedly in various provisions of the Civil Rights Act and in the congressional debates preceding its passage.¹³¹ The congressional intent was, however, turned around in decisions by administrative agencies. The U.S. Civil Rights Commission urged upon the U.S. Office of Education the use of guidelines for the receipt of federal money by school districts, which required that the districts not merely “disestablish” segregated schools but achieve “integrated systems.” These recommendations were acted on in administrative guidelines issued in 1966.¹³² That same year, the Fifth Circuit Court of Appeals explicitly declared that the “racial mixing of students is a high priority educational goal.”¹³³ This interpretation was unique to the Fifth Circuit, but the Supreme Court reversed the contrary interpretations of other circuits, obliquely establishing the Fifth Circuit decision as a precedent.¹³⁴ In short, a decision by administrative agencies in effect reversed congressional legislation,¹³⁵ and an appellate court’s endorsement of that philosophy created a new “constitutional” requirement with neither congressional nor voter sanction and with no such requirement to be found in the Constitution. As a dissenting judge observed:

The English language simply could not be summoned to state any more clearly than does that very positive enactment of Congress, that these so-called ‘guidelines’ of this administrative agency ... are actually promulgated and being used in opposition to and in violation of this positive statute.¹³⁶

Such sweeping changes in policy by oblique means is difficult to explain as the actions of legal institutions impartially carrying out judicial functions, but is much more understandable as actions against long-time adversaries now being routed.