Notes
- A. T. Mason , “The Supreme Court: Temple and Forum,” Yale Review 48 ( 1959 ), as quoted in Walter F. Murphy and C. Herman Pritchett, Courts, Judges and Politics (New York: Random House, 1961), p. 679.
- Alfred H. Kelly , “The School Desegregation Case,” in Quarrels That Have Shaped the Constitution , ed. John A. Garraty ( New York : Harper and Row , 1964 ), p. 260 .
- Nathaniel R. Jones , NAACP General Counsel, as quoted in Detroit Free Press , December 8, 1975 : “Dr. James Coleman is a fraud … thoroughly repudiated by his colleagues… .”
- New York Times , June 11, 1972 , quoted Kenneth Clark as describing some studies as “a sophisticated type of backlash”; that “some social scientists were now beclouding the issues.” See also his “Social Policy, Power and Social Science Research,” Perspectives on Inequality, Reprint series no. 8, Harvard Educational Review, 1973, especially pp. 81, 82 and 84 for similar comments about Jencks' work, including that of showing “underlying racial biases.”
- Eleanor P. Wolf , “Civil Rights and Social Science Data,” Race 13 (July 1972–73).
- Alfred H. Kelly , “Clio and the Court: An Illicit Love Affair,” in The Supreme Court Review , ed. Philip B. Kurland ( Chicago : University of Chicago Press , 1965 ).
- Leon Friedman , ed., The Oral Argument, Brown v. Board of Education of Topeka 1952–55 ( New York : Chelsea Pub. , 1969 ), p. 375 , Mr. Nabrit.
- Ibid. , p. 402 , Mr. Marshall.
- Owen Fiss , “The Jurisprudence of Busing,” Law and Contemporary Problems , Part I, 39 ( Winter 1975 ): 201 .
- Empirical research to investigate the harmful effects of racial isolation or concentration requires comparison with racially-mixed situations. For summaries of this and similar research, see Henry M. Levin , “ Education, Life Chances, and the Courts: The Role of Social Science Evidence ,” Elizabeth G. Cohen, “The Effects of Desegregation on Race Relations,” and Edgar G. Epps, “Impact of School Desegregation on Aspirations, Self-Concepts and Other Aspects of Personality,” Law and Contemporary Problems, Part II, 39, Spring 1975. The most comprehensive evaluation of such research is Nancy St. John, Desegregation Outcomes for Children (New York: Wiley, 1975).
- Paul Sheatsley , “White Attitudes Toward the Negro” in The Negro American , ed. Talcott Parsons and Kenneth Clark ( Boston : Beacon Press , 1966 ), p. 305 .
- Jonathan Kelly , “The Politics of School Busing,” Public Opinion Quarterly 38 ( Spring 1974 ), especially note 8, p. 24 , and p.38. See also James A. Davis, “Busing,” Southern Schools, II, NORC Report No. 124B, University of Chicago, 1973, pp. 83–86.
- This was, of course, the chief and by far the most astonishing finding of James Coleman et al., Equality of Educational Opportunity ( Washington , D.C. : U.S. Office of Education , 1966 ). As late as January of that year Attorney-General Katzenbach stated that “poor academic achievement in slum schools was entirely the consequence” of inadequate resources and “not the race nor economic situation of the students” (Letter of January 14, 1966). Such appraisals were widespread.
- Joe Feagin , ed., The Urban Scene (New York: Random House), pp. 182 – 83
- Hobson v. Hansen , 269 F. Supp. 401 (D.C. 1967 ) at 406,407.
- Bradley v. Milliken , 338 F. Supp. (E. D. Mich. 1971 ) and Bradley v. Milliken, 484 F.2d(6th Cir. 1973).
- See Paul Rosen , The Supreme Court and Social Science ( Champaign : University of Illinois Press , 1972 ), p. 28 . In Buck v. Bell, 274 U.S. 200 (1927), Justice Holmes's opinion upholding Virginia's compulsory sterilization law reflected the influence of yesterday's “science” (the eugenics movement): “Wholesale social regeneration … cannot be affected appreciably by tinkering with the institution of property but only by taking in hand life and trying to build a race,” Illinois Law Review 10 (1915): 13.
- Eleanor P. Wolf , “Social Science and the Courts: The Detroit Schools Case,” The Public Interest , Winter 1976, pp. 106 – 108 See also William Grant, “The Detroit School Case: An Historical Overview,” Wayne Law Review 21 (1975):860–61, for his discussion of Judge Roth's pre-trial views.
- Owen Fiss , “School Desegregation: The Uncertain Path of the Law,” Philosophy and Public Affairs 4 ( Fall 1974 ), especially pp. 26 and38. See also “The Charlotte-Mecklenburg Case—Its Significance for Northern School Desegregation,” University of Chicago Law Review 38 (1971).
- Fiss , “ Charlotte-Mecklenburg Case ,” p. 705 . also “Community Control vs. Integration: The Case of Detroit,” The Public Interest, No. 24, 1971. Judge Roth devoted a number of pages in his ruling of September 1971 to praise of the system's accomplishments on behalf of integrated education.
- Almost one-third of the body of Judge Roth's ruling had been devoted to materials on demographic trends and residential patterns, and he had asserted an “affirmative obligation to … compensate for and avoid incorporation into the school system the effects of residential social segregation,” Bradley v. Milliken at 593. It must be noted that the opinion of the 6th Circuit Court of Appeals specifically rejected any dependence on residential patterns as the basis for its ruling, Bradley v. Milliken, 484 F. 2d (6th Circuit , 1973 ) at 242, and omitted Judge Roth's reference to the “affirmative obligation” of the school authorities. For a description of the leadership in the Detroit system before the recall in 1970 that removed several board members from office, see Grant, “Detroit School Case”;
- Mark Yudof , “Equal Educational Opportunity and the Courts,” Texas Law Review 51 ( March 1973 ).
- After enumerating a large number of government practices which were involved in the creation of segregated housing, Judge Roth concluded: “ … blacks, like ethnic groups in the past, have tended to separate from the larger group and associate together. The ghetto is at once a place of confinement and a refuge. There is enough blame for everyone to share. ” Bradley v. Milliken , 338 F. Supp. (E.D. Mich. 1971 ) at 592.
- Yudof , “ Equal Educational ,” p. 457 .
- For example: Andrew Greeley and Peter Rossi ; “Are Religious Schools Divisive?” in The Education of Catholic Americans (Chicago: Aldine, 1966) (on effects on attitudes of sectarian—and “segregated”—education); see also Henry Levin, “Education,” p. 231; Cohen, “Effects”; Y. Amir, “The Contact Hypothesis in Ethnic Relations,” Psychological Bulletin 71 (1969).
- Gordon Foster for NAACP (Detroit Remedy Transcript, pp. 359 – 69 rpar; described “racially un-identifiable schools” as those which are of uniform “racial composition,” i.e., which reflect the racial make-up in the district. Such schools, he said, regardless of their proportion black, would benefit children because of their uniformity by improving their “self-concepts” (p. 364 ); by “self-fulfilling prophecy … expectations” (p. 364); “equal delivery of service” (p. 365) and “having a common lot with others” (p. 367).
- This collision is also evident in public response to remedy explanations. The discussion of cost-benefit calculations confirms citizens' beliefs that the original ruling was made on this basis; when lawyers explain to them that this was not the case, they are baffled. Thus, at a parent-teacher meeting I attended after the Supreme Court ruling on Detroit, a school board attorney explained that if the District Court followed some precedent cases, each school might be required to approximate the overall proportion of 75 percent black to the extent this was feasible. When asked if this was the proportion that the “Supreme Court thinks is the best for education,” he responded: “No, no, it has nothing to do with that.”
- Frank T. Read , “Judicial Evolution of the Law of School Integration Since Brown v. Board of Education,” Law and Contemporary Problems 39 ( Winter 1975 ): 45 .
- Quoted by Betsy Levin and Willis D. Hawley , “Foreword,” Law and Contemporary Problems 39 ( Winter 1975 ): 3 , footnote 10.
- Some astute observations related to this point are made by Henry Levin, “ Education ,” p. 234 .
- Jerome Frank , Courts on Trial: Myth and Reality in American Justice ( Princeton , N.J. : Princeton University Press , 1950 ), pp. 80 – 85 cited in Murphy and Pritchett, Courts, pp. 327–31. They note (pp. 317–19) that this “highly ritualized trial by battle of wits” is unsuitable for broad social issues.
- Transcript , p. 515 .
- Transcript , pp. 1765 – 6
- Transcript , p. 988 .
- Transcript , pp. 3834 – 5
- Transcript , p. 510 .
- Transcript , p. 772 .
- Nancy St. John , Desegregation.
- Fiss , “ School Desegregation. ”
- For an analysis of some of these problems as they affect the Supreme Court, and proposals to deal with them, see Arthur S. Miller and Jerome A. Barron , “The Supreme Court, The Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry,” Virginia Law Review 61 ( 1975 ).
- See Geoffrey C. Hazard , Jr. , “Limitations on the Uses of Behavioral Science in the Law,” Case Western Reserve Law Review 19 ( 1967 ), for a discussion of this problem.
- Frederick Mosteller and Daniel P. Moynihan , eds., Equality of Educational Opportunity ( New York : Vintage , 1972 ).
- Detroit Remedy Hearings , 1972 , pp. 520 – 21 (The Coleman report had not, of course, said this in the first place. See p. 307 .)
- James Coleman , “Coleman on the Coleman Report,” The Educational Researcher , March 1, 1972 .
- Metro Remedy Hearings, 1972 , pp. 1389 – 90 The expert for the Detroit schools had no wish to weaken the impact of the Coleman material. He had earlier argued so fervently on behalf of a Metro plan that when counsel asked what he would suggest if Detroit were completely surrounded by water, he replied: “ Build a long bridge … no matter how large the body of water… . ” Detroit Remedy Hearings, 1972 , p. 643 .
- Metro Remedy , 1972 , p. 1389 .
- Metro Remedy , 1972 , pp. 977 – 79
- My version, not a quotation.
- Yudof , “ Equal Educational ,” p. 439 .
- Deposition of David Armor , May 24, 1972 , Cambridge, Mass. V. X, Joint Appendix, U.S. Court of Appeals, No. 72–8002, pp. xa 262-xa 393.
- Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and Development of Plan , E. D. Mich., June 14, 1972 . C.A. 35257. The citation was to Monroe v. Board of Commissioners, Jackson, Tenn. , 427 F. 2d 1005 , 1008 (6th Cir. , 1970 .)
- There is a continuous flow of articles in the law Journals, the main theme of which appears to be a search for an intellectually satisfying legal basis for declaring northern school segregation unconstitutional. The intensity of this quest suggests to the layman that the basis is so elusive and ambiguous that the development of public understanding and support for such decisions will continue to be difficult. For a comprehensive and penetrating review of alternative grounds for judicial action in the northern school cases see Frank Goodman, “De Facto School Segregation: A Constitutional and Empirical Analysis,” California Law Review 60 (March 1972).