00:00 [Archival]: We'll hear arguments next in number 73-434, Milliken against Bradley.

00:08 Leon: Hey, everyone, this is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter and Rhiannon are talking about Milliken v. Bradley, the Supreme Court case from 1974 about school segregation.

00:22 [Archival]: Winding up a prolonged and historic term, a divided Supreme Court ruled today on one of the touchiest issues in the nation, busing school children for racial balance.

00:31 Leon: In Milliken, the Court found that school districts in the suburbs didn't have to participate in desegregation plans involving city schools, a ruling that kneecapped the cause of integration.

00:42 [Archival]: Chief Justice Warren Burger declared for the majority that lower courts acted unconstitutionally by ordering busing between predominantly black Detroit and 53 of its predominantly white suburbs.

00:54 Leon: Michael is off this week, but joining Peter and Rhiannon is a special guest. Me, Leon Neyfakh, from Fiasco and Slow Burn. This is 5-4, a podcast about how much the Supreme Court sucks.

01:12 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have spread like rabies through the American nervous system. I am Peter, Twitter's The_Law_Boy. I'm here with Rhiannon.

01:26 Rhiannon: Hi, everyone.

01:28 Peter: And our special guest, Leon Neyfakh.

01:31 Leon: Hi, everybody.

01:33 Peter: Leon is, he told me, an expert in racism, and that's why we're having him.

01:42 Rhiannon: Peter, you said before on the podcast that you are not a professor of racism.

01:46 Peter: That's right.

01:46 Rhiannon: But so one of the things that we brought to our listeners today, is a professor of racism, Leon Neyfakh.

01:52 Leon: A podcaster of racism.

01:54 Peter: Yeah, Michael is taking the week off. Had some personal items to attend to. And also, we keep a strict white male quota on this podcast. That's how it goes. Leon on, Michael off. Sorry, Michael fans.

02:12 Rhiannon: Miss you, Michael.

02:14 Peter: Today, we are talking about Milliken v. Bradley, a 1974 case about desegregation. This case is in many ways the story of the promise and the failure of school desegregation during the last century.

02:26 Leon: Wait, Peter, can I say why I'm actually here?

02:29 Peter: Yeah.

02:30 Rhiannon: Sure.

02:31 Leon: I'm not in fact, a professor racism, lest anyone get the wrong idea. So as you've heard me say, how many times now, 26? How many episodes have we made of 5-4?

02:39 Peter: Something like that, yeah.

02:40 Leon: As you've heard me say that many times, I am the host of the podcast, Fiasco, which is a history podcast that's available on Luminary, and we tell stories about the recent past, and we've done...

02:52 Peter: Alright, let's just wrap this up, Leon.

02:54 Leon: Alright, so look, it's a pretty elaborate concept. We make podcasts about history.

03:00 Peter: Leon's podcast is about events, if I understand it correctly, things that have happened.

03:04 Leon: That's right. And the event that we're covering in our upcoming season, is the desegregation of Boston's public schools, which took place in the mid-70s and is very relevant to the case we're talking about on this episode.

03:15 Peter: Alright.

03:15 Rhiannon: Yeah, and as part of that season, you interviewed a bunch of people, right?

03:19 Leon: Yeah, so it's a narrative documentary, it's a mix of me telling the story, as well as a lot of archival footage from TV coverage and radio coverage at the time, and as you said, dozens of original interviews with people who were there. So in our case, this was key black activists from Boston, who put segregation, school segregation on the agenda in Boston, starting in 1963. And it was because of the pressure they created, that what became known popularly as the Boston Busing Crisis happened in '74, '75, '76.

03:51 Peter: Well, hey, welcome to the podcasting game, dude.

03:53 Leon: Thank you. Thanks for letting me on.

03:58 Peter: Again, the case we're looking at today, is Milliken v. Bradley. In 1974, this case effectively dashed all hopes of ending school segregation in America. But to understand what all of this means, we have to dig into some history. In 1954, the Court in Brown v. Board of Education held that segregation in public schools was unconstitutional, but what exactly it meant for states and school districts to desegregate in concrete terms was never entirely clear, and for years, both courts and public officials fought over the obligations of the states to take affirmative actions to remedy the issue.

04:35 Peter: At the same time, redlining and other forms of economic discrimination boomed, funneling black Americans into cities, while whites fled to the suburbs. By the 1970s, not only did segregation persist in the South, but that white flight to the suburbs had intensified the separation of black and white communities in the North. So the NAACP took action, filing a lawsuit against the state of Michigan about public school segregation in Detroit, arguing that although segregation was not official government policy in Michigan, various government policies worked to make the region segregated by default. And in Milliken v. Bradley, the Supreme Court rejects this argument, essentially holding that school districts only had to desegregate if there was proof that the segregation was intentional in those districts. In other words, the segregation in Detroit, according to the Court, was coincidental and not a constitutional concern.

05:30 Leon: And nobody's fault. The point was that no one did it, no one made a rule that said it had to be like this. This is how it was.

05:37 Rhiannon: Exactly.

05:38 Peter: The opinion is a showcase for just how hollow the promise of equal protection under the law can be when the Court is committed to impeding it. The majority here, written by Chief Justice Warren Burger. We've talked a bit about him in the past, he was the first Chief Justice after Earl Warren. Earl Warren, we've discussed many times, famously moved the Court left, especially on issues of racial justice. Burger on the other hand, a standard-bearer conservative and became a spearhead of the conservative effort to fight back the gains of the Warren Court.

06:13 Rhiannon: A quick note about Chief Justice Burger. His own Wikipedia page says that the Chief Justice "did not emerge as a strong intellectual force on the Court." And for Wikipedia to be that fucking shady, means that you were dumb as rocks.

06:33 Peter: That's incredible. Wikipedia'd be like, "Look, his guy is a bit of a moron, let's be honest. Not your smartest lawyer, okay." Incredible. You know conservatives are trying to edit that back, but someone at Wikipedia is like, "Absolutely not."

06:50 Rhiannon: No, that is accurate and it stays.

06:54 Peter: Alright. So a slight change of pace. Rhiannon and Leon, share the burden of telling us some of the background.

07:01 Rhiannon: Yeah, it'll be a duet today.

07:03 Leon: Beautiful. Four hands, right? Isn't that when you're duetting on a piano, four hands?

07:08 Rhiannon: Okay. [laughter]

07:11 Peter: Gonna be a long episode, folks.

07:12 Rhiannon: Leon, I told you before this, no nerd shit on 5-4. [chuckle] Alright, folks, so the Fourteenth Amendment, that's what we're talking about today, we talk about her a lot on this podcast 'cause she's messy. And the drama on what the Fourteenth Amendment means in terms of ensuring an equal society on the basis of race. It starts way before Milliken, it starts way before this story, but a good place to start, I think, is with Brown v. Board of Education. Everybody knows this case, and it's one of the most important decisions made by the Supreme Court in US history, it's regarded as one of the best decisions made by the Supreme Court in US history. And like Peter said, it was in 1954, the Supreme Court under Chief Justice Earl Warren ruled in a unanimous decision that segregation in public schools was unconstitutional under the Fourteenth Amendment. And they said that, "In the field of public education, the doctrine of separate but equal has no place." Great, very good, very strong. Thanks, boys.

08:21 Rhiannon: But as it turns out, the Brown decision, it didn't say much about how public schools should desegregate and what desegregation would really look like, what states and local governments would really be required to do to desegregate, and that's for a few different reasons, I think. At the time, a unanimous decision in Brown v. Board was seen as a priority. There was a lot of fear that the South would simply refuse to comply with a decision that indicated any sort of debate or ambiguity about what the Constitution said about segregation in public schools. And if the Court ruled that segregation was unconstitutional, but there were a couple of Justices writing in dissent, there was a real fear at the time that the South in particular is insolent enough that it would weaponize any sort of official legal arguments against desegregation and just straight up not follow the ruling.

09:13 Leon: That's how that would have worked if it had been a more aggressive ruling, but one that was not unanimous 'cause that's the trade-off. He basically wanted it to be unanimous, and therefore it was perhaps more of a compromise.

09:25 Rhiannon: Less strong.

09:26 Leon: Yeah. If there had been dissents, how would those dissents have been actually weaponized by legislators or whoever?

09:30 Rhiannon: I think it just gives... Peter, you can jump in, but I think it just gives an opening. Today, we talk about decisions where Justices in concurring or dissenting opinions are signaling what type of legal arguments might be convincing or should come up next, that kind of thing. And I think it just allows that legal wiggle room to say, "This isn't 100%, we're not all convinced of this. There's room for interpretation."

09:55 Peter: Yeah, and I think you really can't overestimate the extent to which the public institutions of the South were willing to defy the public institutions of the North. And a lot of Southern states viewed the Court with suspicion and the Court's authority over them on these matters with suspicion, and I think there was a fear that the Southern governments would be willing to undermine the legitimacy of the Court by just flat out ignoring a ruling.

10:23 Rhiannon: Yeah, we talked about this a little bit in the Terry v. Ohio episode, which is about stop and frisk. But at this time, particularly after Brown v. Board in the mid-50s, late '50s, especially in the South, but across the United States, people are really criticizing the institution of the Supreme Court. There are Impeach Earl Warren campaigns, there's a lot of anger about what's happening. And so that fear is...

10:46 Leon: There was a podcast about how much the Supreme Court sucks.

[laughter]

10:48 Rhiannon: Right, exactly. So like we're saying, the legitimacy and the power of the Supreme Court itself was seen as really hanging in the balance. So Chief Justice Warren makes it kind of his mission, really, to get all nine Justices on board with the decision in Brown. That way when it comes out, it's like there's no ifs, ands or buts, segregation in public schools is unconstitutional, period, exclamation point.

[foreign language]

11:13 Rhiannon: That's it.

11:15 Peter: Wait. One comment I wanna make, Rhi, and we've mentioned this before, but I wanna bring it up again while we're talking about Brown v. Board. Brown v. Board was unanimous, but Justice Jackson had a law clerk at the time, young William Rehnquist, future Chief Justice...

11:30 Rhiannon: A-ha.

11:30 Peter: Who wrote a memo about how Justice Jackson should dissent in Brown v. Board and support upholding separate but equal, the Plessy v. Ferguson doctrine. Plessy v. Ferguson, one of the worst Supreme Court decisions of all time. Rehnquist denied that he actually felt that way, but almost everything we know about that time, about Justice Jackson, about what he said to his fellow clerks, indicates that he was lying and he actually supported maintaining segregation in the South.

12:01 Rhiannon: Right, right. And that's important because Rehnquist later is a Justice and later Chief Justice on the Supreme Court, and is involved in Milliken, obviously. So after Brown v. Board is decided, the Supreme Court, Chief Justice Warren, they know that they aren't giving much direction to the states on how to actually desegregate. In fact, they're deliberately not laying it out what segregated schools need to do to comply with the Constitution. So as the Brown decision comes down, the Supreme Court decides to convene on the same case, Brown v. Board of Education, but in the next year's term, in 1955, so that they can actually issue directives to help implement the Brown ruling. Basically, they want Brown I to come down to announce the principle that segregation is unconstitutional, and then in the next year, they're going to come out with the second Brown v. Board of Education, which will lay out the policy requirements of implementing desegregation.

12:58 Peter: Right, let them know what they need to do.

12:58 Rhiannon: Exactly.

12:58 Leon: And that's called Brown II, right? I learned about Brown II when we were researching Fiasco, and I wonder if I'm right to think that most people don't know about Brown II.

13:07 Rhiannon: Yeah, I think it's way less known and yes, it's just sort of colloquially known as Brown II.

13:11 Leon: I didn't know they could have sequels, I thought that was...

[laughter]

13:16 Rhiannon: They can do whatever they want, Leon. That's, again, the point of the podcast.

13:18 Leon: And it wasn't good, so...

[laughter]

13:22 Rhiannon: So in Brown II, the holding that the Supreme Court reaches ends up being kind of a mess, frankly, because all they say is that school districts and local governments should desegregate public schools "with all deliberate speed." So you can see how in the Brown II ruling, again, this one is handed down unanimously, the Justices under Chief Justice Earl Warren are trying to do this huge thing that they know is about to blow up something that's so central to the way American society is built, on racial segregation, but at the same time, they're not trying to make anyone super mad about it. So the Brown II ruling just says, "Look, local authorities and district courts below us, y'all are gonna have to use a lot of different tools to get this done to implement the ruling of Brown I. So we're just gonna say it should be done with all deliberate speed, get on it."

14:13 Leon: The thing with that phrase, though, is that it sounds like you gotta do it fast, but in fact, the key word is deliberate, and like, "You have to deliberate on how you're gonna do this and do it at that speed."

14:22 Rhiannon: Exactly.

14:23 Peter: It's not like, "do it quickly."

14:24 Rhiannon: Right, that's a really good point. And there's no specific direction, there's no specific requirements in the Brown II ruling, there's no tools for what to do, there's no deadlines importantly, nada. So, "with all deliberate speed," whatever that means, the process of desegregation ostensibly sort of gets started, but it's kind of like everyone is on their own to figure out how and to what extent they really are gonna take this on. So...

14:48 Leon: And nothing happens basically, right?

14:50 Rhiannon: Exactly. Basically nothing happens because, of course, there are politicians and judges and local authority figures all over the country who are publicly and strongly still opposed to desegregation. We know the famous quote by George Wallace, then the Governor of Alabama, "Segregation now, segregation tomorrow, segregation forever." That quote's from 1963, that's nine years after Brown v. Board. He's not saying that being afraid of a Brown v. Board ruling coming down, that's nine years after. So straight up, most of the country, especially the South, they're just not complying with the Brown ruling.

15:25 Leon: Is there any truth... Can I ask real quick?

15:26 Rhiannon: Of course.

15:27 Leon: One of the people we talked to for Fiasco is Justin Driver, who wrote a book about public education and the Supreme Court, and one thing he said was that they didn't wanna make too big of a demand because they thought that if they did, as you said, Southern states just wouldn't do it and that would make the Court look powerless. And I had never thought before about the degree to which the Court is trying to maintain its authority. Is that a common way of seeing what happened with Brown II?

15:52 Rhiannon: I think so. I think Brown I and Brown II are seen together and they're seen as a compromised position where the unanimity of the Court was prioritized, so that it could be seen as this strong consensus, but there weren't a lot of strong directives.

16:11 Peter: Yeah, the way that Brown and Brown II were taught is that in a lot of ways, the Court was tiptoeing around the South, giving them these generalized ideas, yes, you should desegregate, but very concerned that the South would simply ignore it, and that the Supreme Court would look weak.

16:30 Rhiannon: Exactly.

16:30 Peter: Not just look weak, but prove to have no impact on the state and local governments in the South.

16:37 Rhiannon: Yeah, right. And so while the states and local governments are totally dragging their feet, in many places like the Fourth Circuit, even federal judges are helping them do that. They start interpreting the ruling in Brown v. Board just as an order to not segregate, but it's not a mandate to actually integrate. Brown v. Board just stands for the proposition according to these conservative interpretations, that it's just a prohibition on officially saying, "This is a school district in which we segregate based on student race rather than in order to proactively put children of different races in schools together." And one tool a lot of school districts used at the time to do this non-segregation, but also non-integration thing, is so-called freedom of choice plans, where families can just decide which school they send their kids to. So in New Kent County, Virginia, for example, the district there had given black families the option of transferring to a white school and vice versa, but no one did that, of course.

17:41 Leon: I think some black kids did, but very few, because they were rightfully afraid of being harassed and terrorized.

17:49 Rhiannon: Right, exactly. And the white kids don't go to black schools because they don't want to, because they're racist.

17:57 Leon: And 'cause the schools are worse, right?

17:58 Rhiannon: And they don't wanna go to worse schools, exactly.

17:58 Leon: That's the whole problem, is that the white schools are better.

18:00 Rhiannon: Yes, their parents don't want them to go to black schools either. Alright, so let's take a second to get to an ad.

18:07 Rhiannon: So in 1968, which like Leon said, is fully 14 years after the ruling in Brown, affirmatively desegregate. You have to do something about de facto segregation on the ground, and you have to do it now.

18:22 Leon: Root and branch.

18:23 Rhiannon: Root and branch, yes.

18:23 Leon: Root and branch.

18:25 Rhiannon: Yes. And in a lot of places, that was going to mean busing, busing students of different races to different schools or different districts so that integration was sort of effectuated. Green v. New Kent County, that's another strong ruling from another unanimous court. And then, a few years later, in 1971, the Supreme Court gets even more specific, again, unanimously, in a case called Swann v. Charlotte-Mecklenburg, saying that busing is a constitutionally permissible method to achieve integration. "All things being equal, it might well be desirable to assign pupils to schools nearest their homes," but all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. And so while especially Southern localities and school districts are doing everything they can not to integrate, through the early '70s, the Supreme Court is responding with force and repeatedly saying, "No, you actually have to do this, you actually have to integrate, and there are a lot of tools at your disposal, including busing, so do it."

19:30 Leon: And busing had become this incredibly hot issue where politicians would make entire careers off being the most against busing. In Boston, there was a series of local leaders who worked for the school committee, people who were... Who became powerful because they were able to sort of channel the fury of working class whites mostly in the city who didn't want busing, busing became like the code word for desegregation. And one that conveniently takes race out of the equation, "Oh, this is about busing." And one thing that is worth noting is that, the series of decisions that we just went through, people in the North, legislators and officials in the North, didn't really think that these rulings really had anything to do with them. They considered this series of decisions as being about undoing the Jim Crow South, but the reality was that there was segregation all over the North. In Northern cities, there was real segregation, but not because there was a law in the books, right? And for that reason, there is a sense of innocence, right? Like, "Well, the Supreme Court is fixing the South, we're good up here."

20:31 Rhiannon: Exactly.

20:32 Leon: We're not passing a law saying, "No Black People allowed." But that didn't make the segregation any less pernicious, in a way, it made it harder to undo. And so there had been lawyers for the NAACP arguing for a long time that in a lot of these Northern cities like Boston, like Detroit, school administrators and local officials were deliberately keeping white and black kids separate. Instead of doing it overtly by passing laws, they were doing it covertly through more fine-grain policies having to do with approving transfers, when like a family would apply to transfer schools, all these little ways in which they would advance their goal of segregation, but not do so with a blunt instrument, such as a law.

21:08 Rhiannon: Right.

21:09 Peter: Right.

21:09 Leon: And so it was in 1973 that the Court heard its first case about Northern-style segregation, and that was Keyes v. School District No. 1 in Denver. And so what happened in this case was the Supreme Court found that you didn't need racist laws to sort of enforce segregation, you could do it through other means. It's an interesting case because it takes the distinction between de jure segregation and de facto segregation, and de facto segregation is the kind that comes from where people live, right? You have black neighborhoods and white neighborhoods, then you have community schools that attract people from those neighborhoods.

21:44 Rhiannon: Right.

21:44 Leon: So a place like Denver, the school district there would say, "We don't segregate our children, we just have neighborhood schools." And Boston would say the same thing, "We have neighborhood schools and people who live in those neighborhoods go there, there's nothing pernicious here."

21:56 Peter: How dare you accuse working class Boston of racism? How can I be racist when I can't even pronounce the hard R?

22:07 Leon: Wow.

[laughter]

22:08 Leon: The distinction between de jure and de facto is like, is there a law? And so the decision in Keyes kind of blurred the line between de facto and de jure because it said that you can get real segregation by other means, you don't need a law, and in order for it to be unconstitutional, all you need to show is segregative intent. If there were policies pursued by local school officials that had segregative intent, that's unconstitutional. So on the one hand, it makes this jurisprudence stronger because it blurs the line between de facto and de jure and opens up possibility of finding Northern-style segregation unconstitutional, but at the same time, it holds on to the premise that it needs to be on purpose, at some level, right. Does that make sense?

22:48 Rhiannon: Right, yes. And of course, while all of this is going on and happening at the Supreme Court, political forces are mobilizing around race relations and racial equality, and you see that start to have an influence in changing the trajectory of what the Supreme Court had been doing up until that point on desegregation. So importantly, President Nixon takes office in 1969, and he has explicit opposition to busing and expansive integration efforts in his platform.

23:17 Peter: Yeah, was he a bit of a racist?

23:19 Rhiannon: Right, right.

23:20 Peter: Not the first president to say the N-word in the Oval Office, but the first to record himself doing it.

23:25 Rhiannon: Right, right, that's right.

23:26 Leon: Did he really say the N-word on that tape?

23:27 Rhiannon: Oh, yeah.

23:27 Peter: Leon, I swear to God.

23:28 Rhiannon: Come on...

23:28 Leon: I should know this, but...

23:30 Peter: Yeah, no, the Nixon tapes have just about every racial slur.

23:34 Rhiannon: Yeah.

23:34 Peter: Name your favorite, it's there.

23:35 Rhiannon: Yeah, exactly. Yeah, he runs on openly opposing busing, he gets elected on that and other reactionary political impulses, and meanwhile, there continues to be loud, ongoing public debate about what the ruling in Brown v. Board really meant, and what states need to do to comply, along with continued aggressive, often violent opposition by whites to efforts to integrate.

24:00 Peter: Right, and we should note, George Wallace, the segregationist former Governor of Alabama, has a moderately successful Democratic primary campaign in the early '70s...

24:10 Rhiannon: For President.

24:11 Peter: Yeah, for President. His campaign essentially rejuvenated by the busing crisis.

24:16 Rhiannon: That's right.

24:16 Leon: We should also note that aside from Richard Nixon, another person who was very anti-busing was Biden. He, in many ways, made it okay for Democrats to be against desegregation, by coming out sort of against busing and saying that integration is good, busing is bad.

24:34 Rhiannon: Yeah.

24:34 Leon: The problem with that statement is that it's like having Brown v. Board of Education, but none of the shit that followed.

24:39 Rhiannon: Exactly.

24:39 Leon: You stand for the principle, but you're against the one way that we have to actually bring this about now.

24:45 Rhiannon: Yeah, and I think that's exactly what sort of Milliken represents in the line of this kind of Fourteenth Amendment jurisprudence. So all of this is happening, and finally, we get to Milliken. The case, like Peter said up top, it comes out of Detroit, where the NAACP in 1970 sued Michigan officials for enacting policies that kept Detroit and surrounding schools functionally segregated even though segregation wasn't the official policy. And the case went to trial, and the District Court judge there ruled in favor of the NAACP, saying that school officials and the State of Michigan had been implementing segregationist policies sort of by another name, and the judge ordered them to implement a desegregation plan that included busing.

25:29 Peter: Yeah, and worth noting, the trial judge was a conservative guy who originally tried to toss the case out and was forced to have a trial by the appellate court, who sent it back to him and said, "No, you have to hear this." And was convinced by the NAACP lawyers that segregation existed in Detroit.

25:46 Rhiannon: Right. A lot of evidence presented...

[laughter]

25:50 Peter: Yeah.

25:50 Rhiannon: Just fucking forgot a word.

25:53 Peter: Who has never been before a jury now, huh?

25:56 Peter: Well, I was gonna say, admitted, 'cause I'm thinking about admitting evidence. The school officials obviously appealed that ruling, and by the time Milliken has made its way to the Supreme Court in 1973, the scumbag Nixon has already gotten to nominate a few Justices to the Supreme Court. So, this is really important that Justices Harlan, who was an Eisenhower appointee, and Black, who was appointed by FDR, they're now no longer on the Supreme Court, and when Milliken is before the Court, Nixon has nominated Justice Powell, who is a lifelong conservative, and our boy William Rehnquist, literally a segregationist who wrote a memo in opposition to the ruling in Brown versus Board of Education.

26:45 Peter: So, like Rhi said, the lower court finds and after a trial that the Detroit Board of Education, as well as the state itself, had engaged in and sanctioned discriminatory policies that perpetuated segregation. The Court orders the state to implement a desegregation plan, and it's important to note that while the case was not brought against the wider suburban school districts themselves, the Court ordered the defendants to implement a desegregation plan that included those districts. A big part of that plan is busing, busing children from predominantly black areas to predominantly white schools, vice versa. So, the Supreme Court holds that because the only proven purposeful discrimination was within Detroit proper, the suburban school districts could not be held responsible and thus could not be part of any solution to the problem. Basically saying, the ruling would be unfair to those suburban school districts.

27:42 Rhiannon: Right.

27:43 Leon: Yeah, and it's like the reason that's a legally relevant point would be if you're saying that only de jure segregation, the kind that is on purpose and enshrined in law, or at least in policy, is the kind of segregation that is deserving of a remedy.

27:58 Peter: Yeah, so the Court's reasoning is resting on this distinction between purposeful and coincidental segregation, so the Court is saying, yes, these suburban school districts are segregated, but that's just a coincidence. And this reasoning, it's fundamentally contradictory. What the Court is saying is, yes, Detroit proper has segregated schools because of intentional discrimination, but the suburban school districts are innocent, which deeply misconstrues how segregation actually works.

28:29 Rhiannon: Exactly.

28:29 Peter: The entire purpose of segregation is to produce segregated white school districts. So even if those districts aren't involved in the planning of it, they are the direct output of a process that is designed from the ground up to effect segregation. So, to argue that they are somehow detached from the segregation itself is absurd, they are the purpose of and the end product of the segregation project.

28:54 Rhiannon: Exactly, yeah.

28:56 Leon: Right. And the reason it's constitutional, right, is that no one person made it that way, but everyone made it that way, the reason these suburban schools are all white is that all these white people moved away to the suburbs where, incidentally, black people have a hard time getting rentals and leases. This idea of innocence, we've said that that's the subject of the season of Fiasco, it's like you can't view the suburbs of Detroit as being innocent of racial discrimination. The housing discrimination, both public and private, made it so those Detroit suburbs would exclude black people, and therefore the schools there would exclude black kids, to bring up Justin Driver again, who I mentioned earlier. As Driver put it to me, viewing public schools in hermetic isolation from the housing market is nonsensical, and I think that's exactly right.

29:37 Rhiannon: Yeah, exactly. This is happening at the same time as redlining and economic discrimination against black people is happening, there's rampant racial discrimination in housing, like you said, including literally exclusionary clauses in property deeds that exclude black people from coming into ownership of property. And then, of course, there's straight up actual literal violence against black people who try to move to white neighborhoods. Arson, vandalism, literal assault. All of it.

30:06 Leon: There was an insane bombing, a bunch of school buses got blown up just by the KKK in Pontiac, which was outside Detroit. Real terrorism. Can you imagine that?

30:15 Peter: Well, they're true believers in the Constitution. If you really get in their mind, you know? It's also important to note that it's inaccurate to treat school districts as being independent. So Justice Burger often refers to school districts as autonomous and leverages that to get where he wants to go, but it's a completely false premise. School districts in Michigan, like just about everywhere else, are controlled by the state. So to say that some are guilty of purposefully implementing segregation while others are not is missing the point; all of those districts are functionally controlled by the state of Michigan. The state is implementing or reinforcing segregationist policies through the school districts. That's why the NAACP sued Michigan itself.

31:00 Leon: The whole state as opposed to a school district. Right.

31:03 Rhiannon: Right, right.

31:05 Peter: So, some districts may be more directly involved than others, but they are all part of the state's segregationist scheme, which means that they should all be part of any meaningful solution.

31:13 Leon: And the reason they had to do it this way, there weren't white students in the Detroit school system.

31:18 Rhiannon: Exactly.

31:19 Leon: They were gone, they had moved away, and so if you wanted to desegregate those schools like...

31:23 Peter: Right. Without including these suburban school districts, there's no adequate remedy here.

31:28 Rhiannon: Exactly.

31:29 Peter: If Metro Detroit has schools that are 80% black, how can they desegregate on their own? How can Detroit reduce the unconstitutional concentration of black students without either subtracting black students or adding white students. If a district is 80% black, it doesn't matter how many different ways you try to reshuffle the students, it'll never be desegregated. It is a solution that is designed and destined to fail.

31:53 Leon: Yeah, and just to jump in with a connection to Boston. In Boston, there was a complaint about the busing plan, which said, why are you taking these black kids from this poor black neighborhood and moving them from this poor school into a school in a poor white neighborhood, it's just as poor and just as shitty. What is gained by taking poor white kids and poor black kids and mixing them together, if the schools they all go to suck. Milliken have made it so that kids in Boston wouldn't be bused to schools in suburbs like Brookline or Wellesley. Those were neighborhoods where white people lived and where the public schools were better and better funded because of property taxes. If you had taken kids from Roxbury and bused them into Wellesley or whatever, or Brookline, that would have been a real change for those kids, but they were instead sent to Southie.

32:44 Peter: I wanna cut in, because that does increase their chance of becoming a Good Will Hunting. That's my understanding.

32:50 Leon: And I think the reason Milliken was so scary to suburban parents is that leaving the suburbs was their way out of being involved in integration. And suddenly their kids whom they intended to send to their nice suburban school, were gonna be sent to this scary school in a scary neighborhood. It just played to all kinds of fears that plenty of people had who didn't want to admit to being motivated by racism.

33:13 Peter: Right. It's not about racism, it's about not wanting my kid to interact with black children. And look, the whole goal of desegregation from the perspective of a lot of scholars was, "Look, if you expose white students, especially wealthier white students, to these schools for long enough, political pressure to improve those schools will develop."

33:36 Leon: Yeah, exactly.

33:39 Peter: "And over time, those schools will become better and better." Obviously, in the short term, that's not gonna happen. If your kid's getting bused to some shitty school for the next two years or whatever, before he graduates middle school or high school or whatever, that school is not gonna get drastically better in that time period. All that to say, certainly white families had some legitimate concerns about the education that their child might be receiving. But, in case you think that the reaction in Michigan to the prospect of desegregation was motivated by something other than racism, earlier, we noted that segregationist George Wallace ran for the Democratic nomination for the Presidency, lost to George McGovern, he won Michigan. The Governor of Alabama, with basically no sway outside of the South, managed to miraculously win in Michigan the very same year. Also worth noting, just to make you feel better, he was also, the day before the primary, shot and paralyzed for the rest of his life, back when people were taking direct action. Bad politicians got shot back then and yes, some good ones or like okay ones got shot too, but look, if 10 politicians are getting shot and one of them is George Wallace, I'm sorry but that's a win.

35:05 Peter: I think we've covered a lot of great ground here and we should pause for an ad.

35:09 Peter: So, back to the law and the opinion here. Justice Burger is talking, like we mentioned, about the scope of the remedy needing to be tailored to the scope of the problem. He's saying, "If the real problem is segregation in Detroit itself, suburban school districts outside of Detroit shouldn't be part of the solution." And what that really means is he thinks it's too much of a burden for white families to have to deal with their kids being bused to more black schools. We've talked a bit in the past about the hollowness of the conservative formalistic view of rights. Burger is saying, "Sure, there's segregation here, but that doesn't mean you can bus kids all over the place to solve it." He's saying there's a violation of a right, but he's unwilling to provide a remedy that can actually solve the problem because he thinks that would be too much of a bother to suburban families.

35:55 Rhiannon: Exactly.

35:56 Leon: It would be a punishment for them. Right?

36:00 Peter: Right.

36:00 Leon: The premise of that argument is that having black kids come to your school, if you're a high school kid in a white suburban neighborhood is a punishment and it gives it away that this is about not wanting those people here.

36:11 Peter: We've said this before in so many words, but if your children have the constitutional right to attend non-segregated schools, but the government refuses to use its power to provide them the opportunity to do so, then what does it even mean to have that right?

36:25 Rhiannon: Right. Exactly.

36:26 Peter: And I want to add something about this that goes beyond the legal analysis here, which is the sort of conservative unwillingness to believe in the idea that justice might involve any type of collective sacrifice.

36:41 Rhiannon: Yes.

36:41 Peter: Any type of personal sacrifice that is designed to help someone other than you. They fundamentally disagree that that is important, and they believe that you shouldn't have to do it, and the reason they believe that is because their status in society is generally secure. And that bleeds into this reasoning so much that it just needs to be mentioned. And I think that this all gets to what the role of the Court in American society is. There's a long history in this country of the Supreme Court identifying rights but being unable to protect them. Roe v. Wade, another example, the right to an abortion technically exists per the Supreme Court, but in practice it's extremely weak, and if it's the experience of the Court, that time and time again, the rights that it identifies are ignored by other branches of government and other institutions, that should obligate the Court itself to take affirmative steps to protect those rights. And that's why the Court's refusal to step in and create a remedy here is such a deep and profound failure, not just of policy, but of the way in which we should conceptualize the role of the Court in American government.

37:50 Leon: And it's worth underscoring that Milliken follows this string of decisions that all had steadily gradually closed loopholes for states that didn't want to abide by Brown v. Board. There was a tightening of the standard that made it impossible for these states to continue wiggling out of their obligations. And then Milliken follows and it just creates this massive loophole in the place of all the other ones that the Court had been closing over the course of more than a decade, which is that you can just move to the suburbs and not have to worry about any of this and not have to apologize for your kid going to an all-white school, so like you can just do that. And then the entire project of desegregation is thereby undermined.

38:28 Rhiannon: Yeah, exactly, and I think I wanna highlight the role of the Supreme Court, I guess, in all of this. The reason why Brown versus Board of Education is taught as so important is that it really is not just a watershed moment in the American experiment, broadly, but really specifically in law, and a huge opportunity and new conception of the Fourteenth Amendment and how we use the law and what we think the law is for. Right after Brown and in the couple of cases that we talked about that followed, it's clear that the kind of legal philosophy of the Fourteenth Amendment is that the Fourteenth Amendment is aimed at anti-subordination, and scholars have written about this, but anti-subordination sort of means like a broad conception of equal rights and that the guarantee of equal citizenship in the Fourteenth Amendment, that can't be realized under conditions of really intensive social stratification. So the law is the tool, the law should reform institutions and norms like public schools that enforce subordinate social classes. But on the other hand, what conservatives do, what Peter just talked about, is read Brown v. Board and read the Fourteenth Amendment, and read the role of law and what we have law for completely differently.

39:49 Rhiannon: It's something that's sort of more like an anti-classification thing. The kind of narrow conception of the Fourteenth Amendment, that what the Fourteenth Amendment with the Constitution does, it just protects us against the government classifying people based on race, but that's it. So as long as you don't have this de jure, as long as you don't have a law that says that some people are black and some people are white, conservatives are fine with that, and the law doesn't need to be effectuating any other progressive change in society.

40:16 Leon: Yeah, what's weird to me is that... It's not like conservatives are denouncing Brown v. Board, right? Everyone's on board with Brown v. Board at this point. And...

40:26 Peter: Well, now they are.

40:27 Leon: Well, I'm saying like...

40:29 Peter: Look, the whole conservative project is just like 20 years later, you pretend you didn't support whatever the mainstream conservative position was 20 years ago.

40:34 Leon: But even if it's like... Okay, let's say you... Say that you support Brown v. Board, how can you then not look around today all these years later and see that we have segregation in schools in every major city, more than just every major city?

40:47 Rhiannon: But not by law, right? And they read Brown v. Board on purpose to mean... They interpret it that way on purpose, to say, "Because Brown v. Board was not substantively thought out, because there weren't directives in it, because the Court didn't want to step on people's toes," right? But what Brown v. Board just says is, segregation is unconstitutional, and so the way conservatives interpret it is, "Okay, well, then there's no legal segregation, nobody says you have to segregate schools anymore, so we're good. We love Brown v. Board."

41:16 Leon: But presumably there's a reason why you don't want it to be in the law. What does the conservative who holds that position you just described say is the reason why we don't want there to be segregative law? Isn't it the premise that segregation is bad and to be avoided?

41:25 Peter: No... I mean, yes, that is the premise, but I think that the fact that they defended it at the time, the reactionary movement was defensive of the Plessy v. Ferguson jurisprudence, it shows that they evolved with society and as society rejected that form of explicit segregation, they evolved the tactics they use to maintain social and political power. I don't think it's much more complicated than that. I mean, you'd have to be an absolute psychopath to look at America and not see segregation. If you've traveled across the industrialized world, have you seen pockets of urban decay anything like what you see in America? Anywhere?

42:10 Rhiannon: No.

42:11 Peter: Rhi, you used the term the American experiment a little bit tongue in cheek, a few minutes ago.

42:13 Rhiannon: Right.

42:17 Peter: It always cracks me up that people use that term, like they think we're so fucking interesting. Like we're not like 38th in every meaningful metric...

42:22 Rhiannon: Exactly.

42:22 Peter: Of like how you measure a society. Of course they see segregation, they justified it then with the idea of express white supremacy, and they justify it now with a nod and a wink. What do they talk about like, "Oh, black family values" and shit like that.

42:38 Rhiannon: Right.

42:38 Peter: I think it's important as we wrap up to contextualize this as part of a broader conservative conception of social hierarchy. As we mentioned, Burger's argument here is deeply rooted in the idea that the white people in the suburbs are not responsible for the plight of black people in the so-called inner city, and that may be true of some white people in a vacuum, but it ignores the fact that they are beneficiaries of an unjust system, and that removing that benefit is not unfair. It's inherently fair. The decision in Milliken needs to be contextualized within this broader trend of the privileged classes acting as if they can wash their hands of the systems that operate to their benefit. Much of the conservative political project is informed by the idea that social hierarchies are both naturally occurring and inherently just. A lot of like hackish, like Jordan Peterson made his bones in large part on arguments like this, and you can't properly read Burger's reasoning without keeping that in mind. Not only are the white suburbs in his mind innocent of having any ill intent, but they've actually earned their privileged position.

43:47 Leon: You see this in the Trump tweet from this past week. What was it, like the suburban lifestyle, right?

43:53 Rhiannon: Yeah, right, yeah.

43:55 Leon: People were making fun of that phrase, like he was inventing a phrase, which I think he was, but there's a reason he chose that word, which is that I think that worldview holds the suburbs as like a place to aspire to, confers the status of achievement and stability, right? And...

44:07 Rhiannon: And it's a dog whistle for whiteness.

44:10 Leon: Yeah, no, of course.

44:11 Peter: Of course it is. What other benefit do the suburbs have?

44:12 Rhiannon: Right, exactly. It's just that this is a white community.

44:15 Peter: I would love to have to drive 15 minutes to a grocery store.

44:17 Rhiannon: Right. [laughter]

44:19 Peter: Look, it's why conservatives oppose welfare benefits, it's why even in the 1970s, they were sort of implying that explicit racism is more of an issue of the past than the present, when we look back at that era and we see explicit racism all over the place.

44:34 Leon: Or the South as opposed to the North, right?

44:37 Peter: Right, right. Their worldview is defined by the idea that people's socio-economic status is deserved, and so while they can't say it too explicitly anymore, their sincere belief is that the relative position of the black community in this country is the black community's own fault and the relative position of the white community is due to the white community's inherent virtues. And of course, that ignores the willful public and private practices that drove whites to the suburbs and blacks to the so-called inner city in the middle of the last century. But that is the belief that informs Justice Burger's opinion, not some convoluted analysis of the scope of a constitutional remedy.

45:17 Rhiannon: Exactly.

[music]

45:23 Peter: Alright, next week is Boy Scouts v. Dale case about whether the Boy Scouts are allowed to discriminate against gays under the First Amendment. Michael will be back, almost certainly. It's a near guarantee.

45:37 Rhiannon: Thank God.

45:37 Peter: And another promise, no Leon. [laughter] Leon, thanks for joining.

45:43 Rhiannon: Thanks, Leon.

45:44 Peter: Leon, are you our executive producer?

45:46 Leon: I think I'm credited with editorial oversight.

45:48 Peter: Okay, Leon Neyfakh...

45:51 Rhiannon: He's our king.

45:51 Peter: Not our executive producer. [chuckle] I know a power vacuum when I see one. I'm gonna say it right now, I'm the executive producer. [laughter]

46:00 Leon: You can be the executive producer, if I can plug my podcast one more time. Go listen to Fiasco, everybody, if you like Slow Burn, if you're interested in public education or Boston or the Civil Rights Movement. Check out the new season coming to Luminary, August 13th.

46:14 Peter: Follow us on Twitter @fivefourpod. Tell your friends. And if you are RBG's doctor, call us.

46:22 Rhiannon: We would love to talk to you.

46:24 Peter: Reach out. Open invitation.

46:27 Rhiannon: Absolutely.

46:31 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

46:51 Leon: From the Westwood One Podcast Network.