Common Ground

by J. Anthony Lukas

  Judge Wyzanski was even more outraged by the turn of events. An intellectual Russian Jew, Wyzanski had clearly enjoyed his collaboration with the elegant Yankee prosecutor in cleaning the Augean stables of Irish politics. He plainly regarded Arthur Garrity as a Kennedy stooge, placed in office to frustrate his own reforming zeal, and he wasn’t afraid to say so. When one of Garrity’s assistants brought an Army private into court charged with unauthorized duck hunting, Wyzanski wanted to know whether the U.S. Attorney thought justice was best advanced by prosecuting “matters of this sort” as opposed to the highway prosecutions on which Garrity had “failed to follow through.”

  As such sniping persisted, the Wyzanski-Garrity feud was the talk of the Federal Courthouse. To some, the dispute took on larger proportions: a clash between Yankee/Jewish rectitude and Irish/Kennedy pragmatism. Certainly Arthur Garrity was a Kennedy loyalist, but he was no stooge. For a time he did seem to be dragging his feet on the highway frauds. But, ultimately, he brought nearly twenty indictments, including five of the six recommended by Richardson, and about half of the defendants were convicted. Eventually, even the most skeptical Yankees conceded that the delay was due not to some Kennedy-inspired cover-up, but to Garrity’s characteristically meticulous work habits.

  Indeed, by the end of his five-year stint as U.S. Attorney, Arthur Garrity was so widely respected in Boston’s legal establishment that he moved rapidly into the leadership of the very Yankee Boston Bar Association (as distinguished from the Irish-dominated Massachusetts Bar Association). In 1966, he served as the association’s vice-president and would have become its president—only the third Irish Catholic ever to hold that post—had he not been made a federal judge.

  Ever since the new seat on Boston’s Federal District Court was created by Congress in May 1961, Jack Kennedy had been under heavy pressure from his father to appoint an old crony, Boston Municipal Court Judge Francis Xavier Morrissey. A ruddy-faced operator who knew his way around the seamy side of Boston politics, Morrissey had served as Joe Kennedy’s agent in his son’s camp. But when the American Bar Association found him “lacking in intellectual capacity,” Kennedy temporized, and at his death the seat remained empty. Morrissey kept pressing for the job, supported by Ted Kennedy, and two years later Lyndon Johnson obliged, shrewdly mousetrapping his Massachusetts rivals. When the Boston Globe revealed that the judge had falsified his credentials, the legal establishment—led, not surprisingly, by Charlie Wyzanski—excoriated the appointment. The Kennedys, not Johnson, had to shoulder the blame and in October 1965 Ted threw in the towel.

  Publicly humiliated, the Kennedys badly needed a candidate whose credentials couldn’t be challenged, so Ted turned to another man who had served the family well. A judge, the old saying goes, is just a lawyer who knew a governor. Arthur Garrity had known a President, an Attorney General, and a senator—and he was amply qualified. His nomination encountered no significant opposition, and on July 6, 1966, Garrity was sworn in by the presiding judge of Boston’s District Court—none other than Charles Wyzanski—who made some coolly polite remarks about his new colleague.

  As a judge, Garrity proved the very antithesis of his old antagonist. Where Wyzanski was flamboyant, Garrity was the soul of propriety; where Wyzanski was bold, Garrity was cautious; where Wyzanski was self-aggrandizing, Garrity was self-effacing. His bald head bowed over the bench, squinting down through horn-rimmed glasses, he was unfailingly polite to lawyers (“Permit me, if you will,” “If you’ll pardon me for saying so”) and careful to tell criminal defendants what he was doing (“Now, the law requires me to …”). If anything, he was conscientious to a fault—the smallest procedural matters had to be submitted in writing. Unlike other judges, who delegated heavily to young law clerks, Garrity read everything that crossed his desk, often working twelve hours a day, and such diligence meant that years might go by before he decided a complex case. Inmates at Boston’s antiquated Charles Street Jail filed suit in January 1971 to have the prison closed or its conditions improved. Not until June 1972—after spending a night in jail to make his own assessment—did Garrity open the trial. His decision did not come down until a year later. In a Worcester police brutality case, Garrity took twenty-one months to rule. But his caution paid off: among New England’s federal judges, he had one of the lowest rates of reversal by the First Circuit Court of Appeals.

  In at least one area, however, passion overrode judicial reserve. On criminal matters, especially those involving moral transgressions, Garrity was the harshest sentencer in the district. In bank robbery cases, one lawyer recalls, “you could send your client Christmas cards in prison for years if Arthur was the judge.” Drugs, in particular, aroused him. In thirty drug cases which came before him between 1971 and 1973, Garrity sent twenty-nine of the defendants to prison, for an average of 4.2 years. “It is essential to take these harsh steps to endeavor to bring the country out of this scourge,” he said in sentencing one young man to three years in prison for a “relatively innocent” cocaine offense (thereby drawing a rare, if indirect, rebuke from the Court of Appeals). Pornography, too, horrified him. After ruling on some sexually explicit magazines, Garrity told an attorney for the defendant, “It is because of lawyers like you who take these cases that people are able to import this trash.” Garrity often struck a high moral tone. Sentencing a convicted murderer, he explained, “There is an aura of evil about this case.”

  “Garrity is a puritan,” said one criminal lawyer who has practiced before him. “Like all puritans, he has a great superego, great control. That’s the side he shows most of the time—contained, dispassionate, methodical. But, take my word, underneath is a boiling cauldron of prejudices, biases, notions of how people ought to behave. Like all puritans, he has a pathological fear of losing control. Drugs and pornography represent loss of control, and that’s why they have to be punished so severely.”

  Such reservations notwithstanding, by March 1972, when his name was drawn from the little brown envelope, Garrity struck many Bostonians as the ideal arbiter for the long-standing battle of majority rule vs. minority rights in the city’s schools. For not only did he have a reputation for integrity, fair-mindedness, scrupulous attention to detail, and hard work, but he was an Irishman—a Kennedy Irishman at that. The day Garrity got the case, his old adversary, Charlie Wyzanski, told a friend at lunch, “Boy, I’m glad I didn’t get it. You need an Irish name, a Catholic, to do it.” If anybody could sort out the decade-old muddle, it seemed to be Arthur Garrity.

  Garrity wasn’t so sure. He knew how tangled school desegregation law had become in the eighteen years since the Supreme Court, in Brown v. Board of Education, had held that separate school facilities for black and white children were “inherently unequal” and therefore violated the Fourteenth Amendment’s equal protection clause. And he knew the complexities involved in applying the evolving doctrine to Northern cities like Boston.

  Ironically, Boston was the only city to which the Court in Brown had given a clean bill of health. To gain maximum support for that landmark decision, Chief Justice Earl Warren had not wanted to point an accusing finger solely at the South; after all, Brown itself was a Kansas case and, as Warren wrote in a footnote: “In the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern.” To underline that point, Warren noted that the separate-but-equal doctrine itself had originated with Roberts v. City of Boston (1850). But, referring to the Massachusetts legislature’s subsequent action in abolishing legally mandated school segregation, Warren added, “Segregation in Boston public schools was eliminated in 1855.”

  That remark would have surprised the black plaintiffs in Morgan v. Hennigan and the white liberals who had drafted the Racial Imbalance Act eight years earlier. To be sure, Warren had been writing still earlier, before the wave of black emigration from the South had intensified the imbalance in Boston�
��s ghetto schools. But in any case, the Chief Justice felt bound by the. Court’s long-established position that the equal protection clause only prohibited discrimination by the state, not by private practices. Thus Brown applied only to separation imposed by racially explicit statutes, what became known as de jure segregation, not that which stemmed from social conditions, or de facto segregation. As the law stood in 1954, Boston’s schools were plainly not segregated.

  In 1955, in a decision that came to be known as Brown II, the Court ordered desegregation to proceed with “all deliberate speed,” but left specific remedies in the hands of district judges who were closer to local conditions and thus better able, the Court said, to balance “public and private needs.” But for the next decade little progress was made. For a time, indeed, Southern judges found in the de facto—de jure distinction a loophole through which to slip continued segregation. It was put most starkly by Judge John J. Parker of the Fourth Circuit Court of Appeals, a Virginian whose appointment to the Supreme Court in 1930 had been torpedoed by the NAACP when it turned up a speech of his filled with racial slights. In 1955, Parker wrote: “[The Supreme Court] has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a state may not deny to any person on account of race the right to attend any schools that it maintains … but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches.”

  This so-called Parker Doctrine was seized on by other Southern courts as a rationale for approving various evasive techniques, among them “freedom of choice,” which permitted black and white children to attend any schools in their districts so long as there was room. In theory, at least, that was desegregation. In practice, it was not. Few black families would take the initiative to send their children to predominantly white schools where they might be in a vulnerable minority, particularly when parents feared that whites might retaliate against their jobs, their homes, or their persons.

  For nearly fifteen years after Brown, “freedom of choice” and its variations—“open enrollment” and “local option”—frustrated school desegregation in districts throughout the South. Not until 1968, in Green v. County School Board of New Kent County, Va., did the Supreme Court finally put the Parker Doctrine to rest. “Freedom of choice” in New Kent County, the Court declared, “operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the school board.” It was not enough to eliminate assignment by race, the Court said. Boards which had operated dual systems were “charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” The object, the Court said, was not a mere cleansing of the statute books, but results in the schools.

  Up to that point, virtually all school segregation cases had come from rural school districts where blacks and whites lived side by side as they had since antebellum days. In such districts, desegregation could usually be accomplished merely by assigning children—black and white—to the school nearest their homes. In Swann v. Charlotte-Mecklenburg (1971), the Supreme Court finally came to grips with the “flinty, intractable” problems of desegregating a major urban area—the most populous school district in North Carolina, with some 83,000 pupils. Since blacks and whites in Charlotte and surrounding Mecklenburg County generally lived in separate neighborhoods, assigning students to the nearest school would only ensure that most of them continued to go to school with children of their own race. In Swann, the Court held that, everything else being equal, students should be assigned to the school nearest their homes, but “all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation.” In such districts, the very residential pattern would presumably have been influenced by the location of segregated schools, black neighborhoods often clustering around black schools, white neighborhoods around white schools. Thus, to assign students by neighborhood would perpetuate the effects of the dual system. Since the Court in Green had required a “root and branch” extirpation of such systems, it ruled in Swarm that district courts could order a variety of measures, including those which were “administratively awkward, inconvenient and even bizarre,” to accomplish that end. Specifically included in the catalogue of approved means was the busing of children from one neighborhood to another.

  But sweeping as such an edict was, Swann had much less national impact than might have been expected. For though the justices might pretend otherwise, legally mandated segregation—as the Court defined it up to that time—was almost exclusively a sectional problem, a Southern problem. Yet Southern spokesmen, notably Senator John Stennis of Mississippi, were pointing out that school segregation existed in the North too, achieved there merely by different means. Even Senator Abraham Ribicoff of Connecticut, a prominent Northern liberal, indicted his own region for “monumental hypocrisy.” Such critics noted that because Southern blacks and whites had always lived adjacent to each other on plantations or tenant farms, the state had had to enforce segregation in order to limit social contact between the races. No such legislation had been needed in the North, where blacks and whites, since colonial days, had tended to live separately. There was some truth to that old bit of Negro folk wisdom: In the South, the white man doesn’t care how close you get if you don’t get too high; in the North, the white man doesn’t care how high you get if you don’t get too close. But the effect on school attendance was much the same in both places: whether by law or by neighborhood, whites and blacks went to school separately. Why, the South now began asking, should the courts treat the Northern form of segregation any differently than they did the Southern?

  The same question came to preoccupy the NAACP and particularly its general counsel, Robert Lee Carter, who in the legal attack on “separate but equal” had been Thurgood Marshall’s principal lieutenant. For years they had worked closely together, but gradually Carter had grown resentful of the older lawyer—a friction exacerbated by the disparity in their backgrounds. Marshall’s parents were each half white, and young Thurgood had grown up in the conservative mulatto aristocracy of Baltimore, at that time very much a Southern city. That experience did not leave Marshall an Uncle Tom, but he was a cautious, deliberate man who took orderly steps toward a carefully conceived goal. Bob Carter, on the other hand, was a dark-skinned product of Newark’s Central Avenue ghetto—one of the very few NAACP leaders of that vintage to have grown up in the North, which left him with an acute resentment of Northern white hypocrisy. More a hot-blooded advocate than a cool analyst, Carter had always been temperamentally disinclined to settle for half measures.

  In the early 1960s, after leaving Marshall’s Legal Defense Fund and moving over to the NAACP proper, Carter established his own legal office and launched a novel assault on Northern segregation. He set out to show that racial segregation in and of itself—regardless of its cause—was unconstitutional. Attacking at its heart the Court’s time-honored interpretation of the Fourteenth Amendment, Carter tried to demonstrate that the equal protection clause not only required an end to state-enforced school segregation, but actually conferred a right to an integrated education. It was a characteristically bold departure, a brave raid on the very heart of the Northern defenses, and it failed. In three separate suits in three Northern cities—Gary, Cincinnati, and Kansas City—Carter’s theory was rejected, not only by Courts of Appeal but later by the Supreme Court. Although the Court never wrote a full opinion on the matter, its affirmations of lower court opinions made clear that it was unwilling to take that broad a step away from its traditional view of the Fourteenth Amendment. By the mid-1960s, the failure of this venture had left the c
ivil rights movement feeling mortally wounded. With the Court apparently accepting de facto segregation, the nation seemed doomed to a double standard which could only become increasingly embarrassing to advocates of desegregation. To many able attorneys, it looked as if the assault on Northern school segregation had reached a dead end.

  But cooler, more analytic lawyers at the Legal Defense Fund—notably Jack Greenberg, who succeeded Marshall when he went on the Supreme Court in 1967—saw a different route to desegregation in the North. Greenberg and his colleagues harked back to a line of lower court cases which had shown that the Court’s definition of “state action” might be broadened beyond explicit statutes to include a whole range of subtle techniques used by Northern school boards to reinforce and maintain school segregation. In Hillsboro, Ohio, in 1956, New Rochelle, New York, in 1961, and South Holland, Illinois, in 1968, federal courts had found that schools could be effectively segregated by gerrymandered districts, selective transfers, discriminatory feeder patterns, and the like. Where there was intent to segregate, “it makes no meaningful difference whether the segregation is maintained directly through formal separation, or indirectly,” wrote Judge Irving Kaufman in the New Rochelle case. “Constitutional rights are determined by realities, not by labels or semantics. The Supreme Court has affirmed that courts must look through the guise in which school officials seek to clothe their unconstitutional conduct.”

  By 1972, when Arthur Garrity began hearing the Boston case, the Supreme Court had not yet ruled specifically on this emerging lower court reinterpretation of “state action” (although lawyers and judges were eagerly awaiting the Court’s decision in a Denver case which it had accepted for review). Lacking a definitive Supreme Court precedent on which to rely, Garrity studied the Gary, Cincinnati, and Kansas City cases on the one hand and the Hillsboro, New Rochelle, and South Holland cases on the other. But the case which weighed most heavily on him was the only school desegregation suit tried by a federal court in Massachusetts since the Brown decision, a case decided by his colleague on the Boston bench George C. Sweeney, and reviewed by the same First Circuit Court of Appeals that would hear any possible appeal from Garrity’s Boston decision.