De-Segregation of Schools and the Power of the Courts

"The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior dominant ruling class of citizens. There is no cast here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." -- Justice Harlan

I start this paper with a portion of Justice Harlan's dissenting opinion in Plessy v. Ferguson for a good reason. His dissent is the main force in the desegregation of schools. The courts in what is known as the case that ended desegregation in schools, Brown v. Board of Education, used Harlan's dissent and the ideas presented their to reach their decision. I agree with what the court did. The court had to give themselves power to end the segregation that was happening in America. Without the courts power, the American people would have continued their majority rule, and not recognized the minorities rights. Today, we will look at how the courts finally reached their decision to desegregate the schools, some adaptations to that ruling (Brown II), and finally some of the restraints that they put on themselves.

School desegregation essentially starts with Plessy v. Ferguson. Even though this case did not deal with school desegregation, Harlan's dissent sets up the groundwork for Brown v. Board of Education. In Plessy, a Louisiana law that had "Separate but Equal" seating on a train was challenged. The court ruled that the law did not violate the constitution. I completely agree with Justice Harlan's dissent in this case. The constitution is colorblind. As he points out, the law was not put into effect equally. It was put into effect to keep the races segregated. That is a violation of the 14^th Amendment dealing with both the due process clause and the equal protection clause, and the 5^th Amendments due process clause. We can look at the quote I used at the beginning of this paper. While the white race may be the majority, it must not hurt the minority. The minority must be protected, or at least not violated. This is the way to keep a democracy going. If the minority race is discriminated against long enough, it can cause a lot of problems. That is why we have a constitution, to make sure that our rights are upheld, regardless if we are the majority or not.

Harlan's dissent now brings us to the landmark case of Brown v. Board of Education (1954). The courts ruled that it is unconstitutional to have segregated schools, and that the school districts must desegregate. Of course, the courts first had to explain how they really weren't changing their stance on this issue, even though they actually were. The courts claimed that the validity of the "Separate but Equal" doctrine, which was first established in Plessy, was never challenged until this case. So the courts weaseled their way out of saying that they were changing their stance. The courts were right when they looked at the educational system, and saw that it was flawed, and that "separate but equal" was still segregation and that violated the constitution. One of the main reason's that segregation is unconstitutional is because it is psychologically harmful. It creates a feeling of inferiority, which in turn will lead to poor performance. I agree with the courts here, however, in this case, they didn't tell us how to solve the problem. The reason for this is that the power to administer something is usually in the hands of Congress and the President, not the courts. So at first the courts didn't specifically put forth anything to solve for the segregation, they waited until Brown II to do that.

Before we move to Brown II, we need to look at another case quickly. In Bolling v. Sharpe, the courts had to rule about segregation in Washington D.C., since it did not fall under the jurisdiction of a state, and therefore was not upheld by the ruling of Brown v. Board of Education. However, the courts ruled that the Fifth Amendment can be applied to D.C. and therefore it also must desegregate their schools. The court made an excellent argument here, and then they disqualified themselves right after it. The argument that they put forth on how segregation is so harmful that it can violate the due process clause of the Fifth Amendment is an excellent argument. The courts also developed another test in this case, the Rational Basis Test. This test asks the question on whether the law has any rational objective, and if it doesn't it will be struck down. However, the court then basically says that, it doesn't matter whether it is or it isn't, we're still going to make you desegregate anyway. The idea that the courts have this kind of a power is amazing, but rather necessary. We have all heard the phrase "necessary evils" and the courts giving themselves more power is one of those evils. We may not like what they are doing, but the fact is, is that the courts had to do this to end segregation. Bolling is the first example of the courts power, the biggest increase in power however comes forth in Brown v. Board of Education II.

In Brown v. Board of Education (1955), also known as Brown II, the courts had to answer the question that they put forth in their first decision, how do we desegregate the schools. The courts could have set forth specific instructions that each school district was suppose to follow, and the implications of that school district not following the orders. This would have been disastrous however. Could you imagine how many problems would have come forth if this was their decision? I hardly doubt that a school district in South Dakota and one in New York would handle the situation the same. We have all seen the consequences of a government trying to set forth one gigantic plan. All we have to do is read James C. Scott's book "Seeing Like a State", and we will see the results of such decisions. The courts did a much different plan. They argued a few different points. First of all, the schools will vary by circumstances, and the best judge in that area is the original federal court. Secondly, the time involved will be different. The local school boards will have to justify their delays, and during the transition, the courts will maintain jurisdiction over the school districts. This ruling gave the courts a huge increase in power. Basically, the courts could do what ever they wanted with the school districts, and could rule them for as long as they wanted to. To some people, this was a scary thing that happened. However, I believe that the courts had to do this, and were right in doing so. For them to put forth a general statement that all school had to follow would have been disastrous. Many schools would have gotten away with very little desegregation, others, like South Dakota schools, would have been forced to do the same things as schools in New York or California. This is a horrible thing to think that schools around the United States would, and could act in the same manner. Yes the courts gave themselves an amazing amount of power, but like I said before, it was a necessary evil. We can see an example of how the schools will have different problems in different areas by looking at Swann v. Charlotte-Mecklenburg Board of Education (1971). This case revolved around the fact that while the population of the Charlotte-Mecklenburg County was 71% white, and 29% black, nearly two-thirds of the school's black students attended schools that were 99% black. The courts ruling in this case was dealing with school districts having to take action to try and continue with desegregation. This was another case that extended the courts power. The courts looked at four different areas that were recognized in the school district of Charlotte. One of these areas was that of transportation and that the school district needed to improve it to increase its diversity in the schools. Again, I must agree with what the courts are doing. The schools in that district were not following the order put forth in Brown v. Board of Education. For this reason, the courts had to put out more orders for school districts to follow. This case shows us that had the courts not taken these steps, and increased their power, the schools would have never been desegregated. This is a case of De Facto segregation. The school district had ended segregation, per se, however, the schools continued to be segregated. The courts put forth that the schools need to do everything in their power to end this segregation. However, some problems can still arise, and now we start to see the courts decreasing their power.

In Milliken v. Bradley, the courts had to decide if De Facto segregation was in fact a violation of the constitution. The courts could have increased their power even more, however, they said that it was not a violation of the constitution. They argued that that in order for the school district to desegregate these schools, it would put an unfair burden not only on the school district, but the students that would have to ride all the way in to the inner-city schools to desegregate them. Since the courts did not see a clear violation, they ruled in favor of the district. Here is where I agree with the dissenting opinion of Justice Douglas. He tells us that De Facto segregation is the same thing as De Jure segregation (de jure meaning segregation by law). Yes there is no law preventing desegregation, but the fact that the way the school districts are designed leads to segregation and that in the view of the constitution is wrong. We can also look to Justice Marshall's dissent where he tells us that in previous cases, they have said that the school district must take whatever means it must in order to solve the problem of segregation. With this ruling however, they are overturning their decision. I agree with this dissent. If we look back to some cases, such as Swann, where the courts clearly put forth ways on how to end De Facto segregation. They didn't say that it was, but you can look at the ruling, and see that it did deal with it.

Another area in which the courts started to restrain themselves was that of Missouri v. Jenkins. In this case, a district judge ruled that the state of Missouri was running a segregated school, and ordered that Magnet schools were to be built. The funding for this was mostly provided for by the federal government, but in order for the state to cover its expenses, it had to raise it's property tax. A state law prevented this, so the judge ordered that the sales tax would increase anyway. The magnet schools part of this case was upheld. These schools are designed to draw in students into the inner city because of the quality of the school. The school would have such things as an Olympic size swimming pool, Professors with Ph.D's, and other items that most schools could not compete with. This has helped many inner-city areas to draw in a wide variety of students. However, right now the courts are looking at ending this plan. In a case that is before the Supreme Court, dealing with reverse discrimination at the magnet schools, the court may rule that it does violate the equal protection clause. While there are quite a few magnet schools out there already, if the court rules in favor of the claimant, then that will end any kind of funding for other magnet schools to be build. Hopefully, the courts will not do this, so magnet schools will continue to grow and succeed in their programs. However, the courts did rule against the district court dealing with the tax situation. It ruled that the court was out of line to set the tax amount for the state, so it could raise the money to build the school. This was again a self-imposed regulation on the courts. I do agree with this limitation however. I don't believe that the courts should have any right to determine how much our taxes are going to be. In the constitution itself, it says that congress has the power to tax, not the courts.

This is really not the end of our discussion on segregation. We could cover an entire range of possibilities. We could look at affirmative action, and reverse discrimination, specifically the cases of Bakke v. Regents, and vice versa. However, for times sake, we will stop here. Today, we have seen how much power the courts have given themselves over the years, and how they have started to decrease that power. Was this power necessary? I believe so. We can look back to our history and see that without the court's power, many schools would have never desegregated. Even with the court's power, we have seen that many schools are still segregated. The courts do need to have some retrain however, and with their recent rulings, they are starting to go in that direction. As James Madison in The Federalist, No. 51 said,

Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.

What does this mean? It means that we want justice, and we will continue to try and get as much justice as possible. However, if we go to far, and give our justice system too much power, our liberty, that the courts were suppose to protect, will be violated.

References

Plessy v. Ferguson; No. 210 Argued: April 18, 1896 --- Decided: May 18, 1896; On-line:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0163_0537_ZS.html

BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL. ; No. 1. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS.^; Argued December 9, 1952. -- Reargued December 8, 1953. --Decided May 17, 1954; On-line:

http://brownvboard.org/research/opinions/347us483.htm

BOLLING ET AL . v. SHARPE ET AL.; CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR TH E DISTRICT OF COLUMBIA CIRCUIT.; No.8. Argued December 10-11, 1952.-Reargued December 8-9, 1953.-Decided May 17, 1954; On-Line:

http://www.nps.gov/archive/brvb/pages/bolling_opinion.htm

BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. No. 1. Reargued on the question of relief April 11-14, 1955. Opinion and judgments announced May 31, 1955; On-line:

http://supreme.justia.com/us/349/294/case.html

SWANN ET AL. v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION ET AL.; CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 281. Argued October 12, 1970 Decided April 20, 1971; On-line:

http://supreme.justia.com/us/402/1/case.html

MILLIKEN, GOVERNOR OF MICHIGAN, ET AL. v. BRADLEY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 73-434. Argued February 27, 1974. Decided July 25, 1974; On-line:

http://supreme.justia.com/us/418/717/case.html

MISSOURI ET AL. v. JENKINS ET AL.; CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT; No. 88-1150. Argued October 30, 1989 Decided April 18, 1990; On-line:

http://supreme.justia.com/us/495/33/case.html

James Madison, The Federalists Papers, Edition # 51, Wednesday, February 6, 1788; on-line: http://www.constitution.org/fed/federa51.htm