Federal Education Policy and the States, 1945-2009
The Nixon Years: The Supreme Court and Desegregation, 1972-1973
In 1971, the Supreme Court ruled unanimously in the case of Swann v. Charlotte-Mecklenburg Board of Education that the public schools in Charlotte and Mecklenburg, North Carolina, could require pupils to be bused outside their residential neighborhoods in order to achieve racially balanced enrollments. This decision stopped short, however, of declaring that racial balance was constitutionally mandated in order to provide "equal educational opportunities" to all children and thus left open the possibility that schools could find other ways to meet this standard. It was this question-the question of court-ordered busing as a way to achieve racial balance and, thus, equal opportunities-that received increasing scrutiny in the early 1970s. Nixon made much of this controversial issue in his run for re-election in 1972, employing a so-called southern strategy to exploit racial antagonisms. When segregationist George Wallace won the Democratic primary in Florida and threatened to draw voters away from the Republican ticket, Nixon called on Congress to impose a moratorium on local busing plans-a move that pulled southern voters back to his camp. (Partisan politics have long played a role in education policy.)
The election of 1972 left no doubt that busing was one of the most contentious political issues of the day. This issue returned to the U.S. Supreme Court in 1973 in the case of Keyes v. Denver School District No. 1. In this case, which involved both black and Hispanic students as plaintiffs, the court ruled for the first time on the issue of racial segregation in northern school systems-that is, systems with no history of explicit laws requiring the segregation of races in public schools. In the court's Keyes ruling (the first desegregation case in which the court did not reach a unanimous decision), a five-justice majority held that the absence of explicit segregationist laws did not preclude a finding of unconstitutional segregation in a northern district. The majority also held that a failure to provide equal educational opportunity to all students, regardless of race, color, or national origin, constituted "intentional state action" in violation of the equal protection clause of the Fourteenth Amendment. By linking racial imbalance to "intentional state action," Keyes saw what had once been considered de facto segregation as de jure segregation.
As Justice Douglas wrote, "there is, for purposes of the 'equal protection' clause of the Fourteenth Amendment as applied to school cases, no difference between 'de facto' and 'de jure' segregation. The school board is a state agency, and the lines it draws, the locations it selects for school sites, the allocation it makes of students, [and] the budgets it prepares are state action for Fourteenth Amendment purposes." Keyes thus had clear implications for the pursuit of racially balanced northern schools-and pursuing such schools immediately. At the same time, however, the court's minority asked if every racially imbalanced school would now be required to become racially balanced. As Justice Powell noted in a dissenting opinion, "Every act of a school board and school administration, and indeed every failure to act where affirmative action is indicated, must now be subject to scrutiny. . . . This will lead inevitably to uneven and unpredictable results, to protracted and inconclusive litigation, to added burdens on the federal courts, and to serious disruption of individual school systems." In other words, pursuing racial balance was not simply a matter of busing students from place to place; it was also a matter of counteracting demographic and political forces that were, in many cases, beyond school officials' control (e.g. state and federal housing policies).