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1/x The debate about busing is really a debate about Brown v. Board of Ed but it's hard to talk about that honestly because Brown is a decision everyone loves but only in the abstract. Brown is like MLK - the US loves the idea of it; the reality, not so much
2/x At about 5 pages long, Brown is ridiculously short for such a momentous decision but the opinion is more complicated than the fulsome praise it usually garners.
3/x In Brown, classes of African-American children and their parents from Delaware, Kanas, South Carolina and Virginia sued to gain admission into schools reserved for whites.
4/x The question, as SCOTUS put it, was whether “segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunities.”
5/x The Court concluded that “separate educational facilities are inherently unequal” and that “the plaintiffs ....are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”
6/x The problem, though, was that once the court concluded there was a constitutional harm, it had to order a remedy and faced with the challenge of coming up with a remedy in Brown I, the court threw up its hands and basically said "Fu*ck if I know."
7/x So, instead the Court told the parties to write a whole new sets of briefs on remedies and come back and argue the case. The court listed 6 questions for the parties to answer in their briefs but only the first two questions mattered and this is where it gets interesting
8/x The court phrased the two questions as an either or choice. The first choice was: whether it should issue a decree “providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice,” or
9/x The second choice was whether the Court may, “in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions.”
10/x In other words, either federal courts could order school districts to desegregate immediately or it could give them time to do it. Guess which one the court chose?
11/x After the parties re-brief and re-argue the case, in Brown II the Court said flat out that it would not order black kids to be immediately admitted into white schools. Why? The next tweet reproduces verbatim the court's reasoning:
12/x "Full implementation of these constitutional principles may require solution of varied local school problems,” and “school authorities have the primary responsibility for elucidating, assessing, and solving these problems.” In other words: Schools, do it your way!
13/x But it gets better: not only does the court give local schools the option to desegregate in whatever way they see fit, it gives them lots of time to do it. The next tweet tells locals schools how much time they have.
14/x The court said local schools should “make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling, but that “once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner.”
15/x So after 250 years of slavery during which time it was illegal to teach blacks to read and write, followed by nearly 100 years of segregation, the court said to schools: we'll let you fix things; we'll give you lots of time to do it; just start; give us something, anything.
16/x Viewed in that way, Brown I & II are the embodiment of conservative orthodoxy: localities know better than the federal government; they can come up with solutions that fit their communities; and they should be given the benefit of the doubt that they're acting in good faith.
17/x So, how did local schools respond?
18/x Seriously: states and school districts basically told the court: GFY. One school district argued that Marbury v. Madison didn't apply to states; others closed their public schools rather than integrate; others gave white parents tax breaks & vouchers to go to private schools
19/x others redrew boundary lines; others redid school funding formulas to benefit segregated schools, and on and on. The catalogue of creative ways schools came up with to evade Brown is so long that you almost have to admire the lengths schools went to not to integrate.
20/x Why am I boring you with all this? Because the only reason courts FINALLY turned to busing nearly 20 years after Brown, is because, when given the choice of how to desegregate and plenty of time to do it, schools districts in the South and the North said:
21/x So, it's more than a little silly to think that the opposition to busing was the result of localities rebelling against an overreaching federal government when in fact SCOTUS practically begged local schools to come up with valid solutions - any valid good faith solution.
22/x The US didn't hate busing; it hated Brown but we can't really say that because today we all claim to love Brown - just like we all claim to love MLK - In the abstract, from a safe distance, unthreatening, shining like a distant star. (Sorry Rihanna)
23/x Don't get me wrong, as much as I love to beat up on Brown, the fact is for all of its debatable flaws, it remains the high-water mark of American constitutional law. No decision the Court has rendered in the last 100 years has had a more profound & lasting impact than Brown.
24/x Fundamentally, Brown was right to hold that state sponsored racial apartheid is inconsistent with the Reconstruction Constitution. But it is precisely because Brown was right that it now seems inconvenient to remember that the South & the North refused to implement it.
