The Choice We Face

by John N. Hale

  A weighty dilemma was forced upon the nation. If meaningful solutions to segregation were to be tried, suburbs would have to be part of the plan. Detroit provided a test case. In 1971, after years of deteriorating conditions in city schools, Judge Stephen J. Roth sided with the NAACP and issued the most extensive desegregation order to date. Roth introduced a massive two-way busing plan that called for transferring 780,000 students across the city of Detroit, in addition to 53 of the 86 school districts in the three-county metropolitan area.97 Busing, Judge Roth determined, would cross into suburbia.

  But the scope of the decision was never realized. The local and national temperament against busing prompted a fierce legal appeal. In Milliken v. Bradley (1974), the Supreme Court—with four new Nixon appointees as part of the majority—blocked the ambitious busing plan in a 5–4 decision.98 The justices ruled that suburban schools were not subject to busing or other desegregation mandates though they were largely segregated by race and class. As residential segregation between urban and suburban areas was seen to have resulted from social custom—not de jure segregation or racial discrimination proscribed by law—the court remitted any role suburbia could play in desegregation efforts. The decision reflected the popular though flawed distinction between de jure and de facto segregation. The former was attributable to laws requiring separate facilities. The latter was attributed to custom or individual prejudice, which the court reasoned was both less harmful and beyond the scope of the law. It was a distinction made in the Supreme Court’s Keyes v. School District No. 1, Denver decision in 1973, when the court ruled that intentionality of segregation was paramount in determining whether or not court-ordered desegregation was permissible.99 The outlying suburban districts in Milliken v. Bradley were not found to be segregating by intent. Justice Potter Stewart wrote in a concurring opinion in Milliken v. Bradley that segregation in Detroit was “caused by unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears.”100 The law merely forbade explicit racial segregation. Without the language of Jim Crow, the onus of proving de jure segregation fell squarely on the backs of people of color and civil rights activists—but it was nearly impossible to prove.

  With Milliken, the court essentially absolved White suburbanites of any commitment—legal or moral—to the betterment of the urban schools and neighborhoods many had left behind. Further exonerating Whites, the court went on to note that it would not impose “punishments” for maintaining segregated schools: the responsibility of the court was “not to devise a system of pains and penalties to punish constitutional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart without, at the same time, losing sight of the central educational function of the schools.” For the court, solutions such as busing became “more and more suspect as they require[d] that schoolchildren spend more and more time in buses going to and from school and that more and more educational dollars be diverted to transportation systems.”101

  The Milliken decision limited desegregation mandates to American cities and those who resided within city limits, mostly BIPOC families or poor Whites in the 1970s. With the blessing of the Supreme Court, suburban schools continued to receive public funding and were exempt from any desegregation attempts. It amounted to what legal scholar and president of the University of Virginia James Ryan refers to as the “suburban veto”—the ability of suburban communities to limit education reform to protect their own interests and maintain autonomy.102 If suburbs did not want to participate in desegregation plans or programs identified with “urban” education reform, they would not be compelled to participate. The rights of Whites were protected and upheld.

  Thurgood Marshall, appointed to the Supreme Court by Lyndon Johnson in 1965 just over ten years after he argued the Brown case, proffered a dissenting opinion that bespoke the perils of the decision. “After 20 years of small, often difficult steps toward [equal justice under law], the Court today takes a giant step backwards.” He noted, “The Court’s answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past.”103 He also weighed in on the public pressure of the case, which was immense. “I fear,” he wrote in his dissent, “[the decision] is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution’s guarantee of equal justice.”104

  After attacking Ted Landsmark, Joseph Rakes was convicted of assault with a deadly weapon and received a suspended sentence of two years. In many ways, Rakes’s life would be defined by the arresting image—much like Hazel Bryan’s was in Little Rock, Arkansas. Thirty years after the assault, Rakes recalled: “The picture—it says what it says, but it doesn’t tell the whole story.”105 Without apology, the comment is a self-serving deflection of responsibility. Yet there is an embedded truth to his statement. The photograph accurately captured the violence of White resistance to desegregation and it points to an awareness that an astute Millicent Brown learned firsthand as a student in Boston, reaffirming what Malcolm X declared in 1964, that everything south of Canada is essentially the “South.” The same mechanisms of racism functioned in the mythologized “freedom North”—Boston, New York, Chicago, and Detroit—as they had in her hometown of Charleston, South Carolina. Joseph Rakes’s assault could have occurred anywhere in the United States.

  These truths underpinned the national retreat from not only desegregation but also the entire system of public education. Disdain for desegregation and public education transcended regional boundaries. Whites on both sides of the Mason-Dixon Line thought the civil rights movement had gone too far, that with desegregation their rights were infringed upon. The new battle cry to defend the rights of Whites came from those President Richard Nixon referred to as the “silent majority”—law-abiding, patriotic, and quiet citizens. The silent majority constituted a base of support for the New Right and the rebirth of the Republican Party. Their dismal perception of public education facilitated the rise of the school choice movement beyond measure. Much of the country—and its elected representatives—stood ready to embrace school choice policy.

  CHAPTER FOUR

  Federal Support of the School Choice Movement

  ON PALM SUNDAY, APRIL 11, 1965, President Lyndon B. Johnson signed the Elementary and Secondary Education Act at the old one-room schoolhouse he had attended as a child in Johnson City, Texas. At his side sat Miss Katie Deadrich, who had taught Johnson his very first school lessons.1 It was the most sweeping federal education legislation enacted in history. Up until this moment, both tradition and constitutional law had kept education decision-making at the state and local levels. School boards, district administrators, superintendents, and principals made and enacted education policy. The sites of decision making were local school district offices, board rooms, and town halls. Congress breached the divide in 1958 by passing education legislation aimed at strengthening math and science programs after the Russians beat the United States into space with Sputnik 1. But Johnson dramatically expanded federal oversight, investment, and prowess in setting education policy.2 The federal government could desegregate schools once and for all—or delay it inevitably.

  Throughout his presidency, Johnson had done much to advance the cause of desegregation. A year before the Elementary and Secondary Education Act, he had pushed the Civil Rights Act of 1964 through Congress. The Johnson administration, with support from Congress and the courts, enforced desegregation by withholding funds from schools that practiced it. This led to widespread desegregation of public schools in the South; Dixie schools became the most integrated in the country between 1964 and 1970, when the percentage of Black students attending segregated schools (ones that were 90 to 100 percent Black or Latinx, American Indian, or other students of color) dropped t
o only 24 percent. Three decades after Brown, the percentage of Black students attending majority-White schools in the South rose from less than .001 percent to nearly 44 percent by 1988.3 Johnson, however, had trouble in the North. He struggled to bypass politicians like Mayor Richard Daley of Chicago who refused to acknowledge segregation in their cities.4 As courts increasingly ordered busing to desegregate schools, they infuriated northerners, shaping national discourse and debate around public education and desegregation. Much as it had in the South, busing and the desegregation process motivated northerners to find alternatives to public school.

  The feds were essentially unable to coerce the North to meaningfully desegregate its schools. The 1974 Milliken decision extinguished a belief in the merits of desegregation, and the gates were thrown wide for massive divestment from public education. With support at the federal level, from judicial decisions to funding, school choice ideology eventually became a comprehensive policy embedded in the very fabric of American life and effectively nullified the ideals LBJ signed into law in 1965.

  Americans were ripe for school choice. Discontent with public schools and resentment of desegregation orders, particularly busing plans, had moved north of the Mason-Dixon Line. Weary of desegregation efforts and ensuing strife, they were ready to welcome alternatives promulgated by Republican presidential candidate Richard Nixon. Rhetoric of antibusing and “taxpayer rights” were part of his successful campaign and the rebranding of the Republican Party during the late 1960s. The party avoided desegregation efforts beyond those addressing de jure segregation.

  By capitalizing on the growing discontent with public education and busing, Nixon guided the nation toward school choice. Fostering the narrative of failed public education, he enabled millions of parents to abandon the project of desegregation. The rise of the New Right and the remaking of the GOP was one of the greatest political reformations of the twentieth century.

  During his successful 1968 presidential campaign, Nixon promised a slow approach to desegregation, currying favor with southern stalwarts such as Senator Strom Thurmond of South Carolina, the former Dixiecrat behind the new Republican Party when he switched parties in 1964. To entice segregationist southern Democrats to vote Republican, Nixon toed a moderate line, blaming desegregation on the courts.5 It was a critical shift in national and electoral politics, which marked for Kevin Philips—a political strategist on the Nixon campaign in 1968—a “repudiation visited upon the Democratic Party for its ambitious social programming and inability to handle the urban and Negro revolutions.”6

  To make new inroads in the South by increasing its base, the GOP recruited southern Democrats through racist policy around school desegregation and “law and order”—coded language for upholding acceptable White values and criminalizing Black protestors and activists. Courting Thurmond and other disenchanted Dixiecrats, Nixon attempted to appease a conservative, anti–civil rights base that would support diehard segregationist George Wallace for president. During Nixon’s campaign for reelection, Wallace swept the Democratic primary in Florida in 1972 and even captured Michigan, historically a pro-union state but one that was subject to busing. As one New York Times poll found among Michigan voters, Wallace’s stance against busing was a greater factor among his supporters than the surge of sympathy that had emerged for him after a recent assassination attempt.7

  Despite Wallace’s strength in the South, Nixon drew much of his support from southern and Sunbelt suburbanites who resented “forced busing” and desegregation orders. By reaching the suburbs, Nixon was able to generate a platform that resonated across the nation. “National growth,” Kevin Phillips pontificated in The Emerging Republican Majority in 1969, “is shifting to suburbia . . . the American future lies in a revitalized countryside, a demographically ascendant Sun Belt and suburbia, and new towns.”8 Though dubbed a “Southern” approach to redefining politics after the civil rights movement, it was a national initiative. White families in Chicago reacted to people of color moving into their neighborhoods with the same vitriol as southern segregationists. So too did White mothers who hurled stones at buses in Boston that transported Black children across town to achieve racial balance. Hatred was not so southern after all.

  To win the coveted support of South Carolina’s Strom Thurmond, Nixon had to support what moderate southerners had in mind. Thurmond assured audiences across Dixie again and again that Nixon was the man to protect their right to choose their children’s school against a federal government hell-bent on enforcing desegregation. At the same time, he had to position himself in the middle of the road. Nixon supported choice while in the next breath affirming the principles behind the Brown decision. At best, his rhetoric seemed to be that of a recalcitrant desegregationist, pitting the two extremes against one another: those who wanted immediate integration and those who wanted to maintain segregation.9

  Unpopular on both sides of the aisle, busing was the clarion call to galvanize the GOP base. An antibusing platform could unite disparate factions across geographical boundaries—it was something that Chicagoans and Dixiecrats in South Carolina could agree on. Nixon astutely anticipated this during his campaign and promised to end busing. Once he was elected, an antibusing stance allowed Nixon to iterate a belief in the principles of the Brown decision, that segregation was wrong and any laws enforcing segregation had to be abolished. It also allowed him to have it both ways by drawing a false distinction between de facto and de jure segregation. “De facto segregation, which exists in many areas, both North and South,” said Nixon in a public statement in 1970, “is undesirable but is not generally held to violate the Constitution.” He reminded the nation that “in the case of genuine de facto segregation . . . school authorities are not constitutionally required to take any positive steps to correct the imbalance.”10 Coupled with the language codified in the Civil Rights Act against transferring students to address such racial imbalance, Nixon reaffirmed where he stood during a televised address in 1972: “I am opposed to busing for the purpose of achieving racial balance in our schools.”11 In the address he proposed an immediate moratorium on the practice.

  Unifying Whites nationwide and others disenchanted with public education and the desegregation process underway, Congress passed laws that undermined both the system and the process. Nixon signed into law the Emergency School Aid Act in 1972 to support voluntary desegregation instead of busing and to slow the desegregation drive. Initially introduced as a package to cushion the blow of desegregation in Dixie by providing more school funding with no strings attached and little to no oversight, Nixon catered to southern districts, encouraging them to voluntarily address de facto segregation through interracial programming and other measures that addressed “racial isolation.” In effect, a significant part of the act sought to “encourage the voluntary reduction, elimination, or prevention of minority-group isolation,” to support the efforts of those who sought desegregation, but to assuage southern concerns that desegregation would be “forced.”12 The bill stated that federal funding could not be used for busing unless local officials provided a request to do so—falling short of Nixon’s moratorium but still a strong prohibitive statement.13 The Emergency School Aid Act remained the only federally funded program that openly encouraged desegregation.14 Nixon also halted progress on the integration front by curtailing the work of the Department of Health, Education, and Welfare as well as the Department of Justice, effectively undoing the progress made by President Johnson. Yet it was his Supreme Court and other judicial nominations that exacted the most lasting impact.15 Nixon appointed over 230 federal judges and 4 Supreme Court justices, selecting strict constitutional constructionists who favored a narrow reading of the Constitution to scale back the intervention of the liberal, “activist” Warren Court that passed a wave of anti-segregation civil rights decisions from 1953 to 1969. Nixon’s first Supreme Court appointment was Warren Burger, considered to be a conservative constructionist and now remembered as “a lightning rod for
those who welcomed as well as those who feared the end of an era of judicial activism.”16 Another Supreme Court appointee, Lewis Powell, was an attorney from Richmond, Virginia, and former chairman of the Richmond Board of Education. Moderates praised him for keeping the Richmond schools open during the mid- to late-1950s when segregationist extremists sought to close them down as they had in other parts in Virginia.17

  Championing narrow interpretations of the Constitution that protected the rights of the individual and enshrined the sanctity of “law and order,” Nixon shaped a court that would leave an indelible impact on education policy and the larger intellectual framework for “choice.”

  Just prior to Nixon’s resignation in 1974, the Supreme Court delivered its 5–4 decision in Milliken, led by four Nixon appointees, ruling that busing across district lines was a “wholly impermissible remedy” where inter-district segregation did not exist.18 Milliken delivered on Nixon’s campaign promise to curtail busing and limit it to cases of de jure segregation. It may not have delivered a complete moratorium on busing, but it effectively removed the air from the buses’ tires. In doing so, the court also upheld the distinction of de facto segregation and erected a nearly insurmountable barrier around suburbs, which were now immune to “forced” desegregation orders. The decision, as civil rights scholar Gary Orfield determined, “rendered Brown almost meaningless.”19