Knowledge And Decisions

In the 1968 case of Green v. County School Board, the Supreme Court declared unconstitutional a “free choice” enrollment plan because there was now an “affirmative duty” to eliminate dual school systems “root and branch.”¹³⁷ As in other areas, prospective equality of opportunity was tested by retrospective results. Because only about 15 percent of the black children had chosen to transfer to the formerly all-white school and no white children had chosen to transfer to the all-black school, there was not a desegregated or “unitary” school system, according to the Supreme Court.¹³⁸ The Green decision was as different from the Brown decision as the two colors in their titles. Brown required pupil assignment without regard to race and Green required pupil assignment specifically with regard to race, so as to eliminate statistical imbalances in the results. Yet the Supreme Court treated the 1968 decision as logically derived from the 1954 decision, though no such derivation was explained — the 1954 decision being only mentioned but not quoted. The Green decision has been aptly characterized as “a masterwork of indirection” and “a rarely equalled feat of sophistry.”¹³⁹ The court simply pushed on from one victory to a further objective, in the manner of other unconstrained institutions continuing in a given direction, in disregard of diminishing or negative returns.

Under the Supreme Court umbrella provided by the Green decision, lower courts began requiring massive busing,¹⁴⁰ not only where there had once been legally segregated school systems,¹⁴¹ but where there had never been legally separated school systems,¹⁴² or even in places where racial segregation was forbidden by state law antedating the Brown decision.¹⁴³ Ability-grouping within schools was sometimes struck down because its statistical effects were different for blacks than whites, and the assignment of teachers by race upheld, along with the firing of white teachers who enrolled their own children in private schools.¹⁴⁴ Only with Milliken v. Bradley in 1971 did the Supreme Court put a limit on how widely a court could require busing. By a five to four decision, it overruled a lower court’s order to bus between Detroit and its suburban school districts — an area as large as the state of Delaware and larger than the state of Rhode Island.¹⁴⁵ Still, the general principle of interdistrict busing was not repudiated,¹⁴⁶ and there was no reversal of the trend toward massive and pervasive retrospective court monitoring of the behavior of school officials, including putting burdens of proof on them to show their innocence after purely statistical prima facie evidence.

The ability of the courts to supersede the authority of other institutions is not the same as the ability to achieve the social results aimed at. The spread of court-imposed busing has been followed by massive withdrawals of white children from the affected schools,¹⁴⁷ increased racial polarization among the remaining “integrated” students,¹⁴⁸ heightened violence,¹⁴⁹ and opposition to busing by both the black and white populations at large.¹⁵⁰ None of this constitutes effective feedback to the Supreme Court, whose members have lifetime appointments. Legislative attempts to prevent compulsory busing to achieve racial statistical balance have been turned aside by the Supreme Court by simply denying that the courts are seeking statistical balance¹⁵¹ (though statistical imbalance is their operational definition of “segregation”), thereby implying that the law does not apply to the cases at hand.

The supposed educational or psychological benefits of school desegregation for black children have proved elusive, though many studies have been made to try to find them,¹⁵² and some studies have triumphantly announced finding such benefits only to have the data evaporate when challenged.¹⁵³ The original premise of the historic Brown decision — that separate schools are inherently inferior — was neither supported by fact nor would it stand up under scrutiny. Within walking distance of the Supreme Court was an all-black high school whose eighty-year history prior to Brown denies that principle. As far back as 1899, it had higher test scores than any of the white schools in Washington,¹⁵⁴ and its average I.Q. was eleven points above the national average in 1939 — fifteen years before the Supreme Court declared such things impossible.¹⁵⁵ There have been other such black schools elsewhere, and indeed NAACP attorney Thurgood Marshall in the Brown case was a graduate of such a school in Baltimore.¹⁵⁶ The history of all-Oriental and all-Jewish schools would reduce this ponderous finding to a laughingstock, instead of the revered “law of the land.”