POLITICS JULY 8, 1967
In a long, passionate opinion in the case of Hobson v. Hansen, Judge J. Skelly Wright of the US Court of Appeals for the District of Columbia, sitting by assignment as a District Judge, has roundly indicted the Washington school system and its superintendent, Dr. Carl F. Hansen, declaring the former, and quite possibly also the latter, unconstitutional. The opinion is a jeremiad and as such commands respect. The inner city of Washington, with its slums, its poverty, its juvenile crime and its schools, is a disgrace. Against this, Judge Wright cries out, from the heart. But Judge Wright is a judicial officer administering the Constitution, and the Constitution does not put at the disposal of judges the resources to prevent, abolish, or even alleviate poverty, juvenile delinquency, slum housing, or rotten schools.
The Constitution forbids segregation enforced by law and requires federal judges to remove its vestiges. This involves no making of educational policy, and certainly no effort to rearrange a deteriorating social and economic environment. It involves removing the coercive force of the state as a cause of segregation, and then neutralizing its lingering effects. But with very few exceptions, federal judges other than Judge Wright have felt unable to tackle situations of massive de facto segregation in major urban centers. They have failed to act, because, as Judge Wright unwittingly demonstrates, they have no well-developed body of principles to fall back on in reforming such educational institutions as the neighborhood schools. They enter, in the area of de facto segregation, territory that is unfamiliar to them, in which they are not entitled to have special confidence in whatever answers they may evolve, for these are likely to reflect no more than their own personal preference or orders of priority. There was, in contrast, a good bit of history and principle to fall back on in deciding that legal segregation, coerced by the state, was unconstitutional. Judges have failed to act also because, even if they knew some answers, they would still lack the resources – the money, the personnel, the machinery – to put them into effect. This is not a question of being obeyed. Law always runs the risk of being disobeyed, as Brown v. Board of Education often was. That case, however, was a “stop” order. When courts undertake to issue a “go” order, as Skelly Wright has done, they need resources which are not at their disposal.
Judge Wright’s indictment of the superintendent and the school administration is rife with imputations of bad faith, but in the end it comes to rest on a charge of complacency only, not on a charge of intentional segregation. He condemns as unconstitutional the track system, optional school zones, teacher assignment practices, and in some measure the entire neighborhood school policy, but he does not quite come to hold that these features of the Washington school system were instituted or maintained in order to perpetuate segregation in the schools.
It seems quite clear to Judge Wright that the optional zones, for example, operate to allow white children in a relatively integrated neighborhood to escape from a predominantly Negro school into an integrated, but substantially white school. And yet it is far from clear that if the optional feature of the zones were removed, the result might not be more segregation than at present, either because rigid neighborhood lines would have that effect, or because more whites would simply flee. Moreover, the option is available not only to whites but to Negroes, and is availed of in some measure by both. Despite his imputations of bad faith, Judge Wright fails to prove his case concerning the optional zones.
One of the purposes of the track system of ability grouping is the remedial one of helping the slow and disadvantaged student. Another is to permit the quick to advance at their own pace. Judge Wright makes a persuasive case against the system as it operates in Washington. It is too rigid, it tends to validate its own predictions, which in turn are made on the basis of tests, that yield much less certain a measure of true ability than is often supposed; and it does not fulfill its remedial purpose, because it is not supported by sufficient remedial resources. No doubt it could be improved and perhaps it should be abandoned. The difficulty comes in declaring a well-intentioned – and debatable – educational policy unconstitutional, either because one deems it wrong, or maladministered, or, for whatever reasons, a failure. If this is the function of the Constitution and of our judges, they have their work cut out for them.
Another portion of Judge Wright's opinion deals with supposed inequalities in facilities and quality of instruction between predominantly Negro schools in the District and the few predominantly white ones. Here there is no doctrinal difficulty. Whatever the intention behind them, demonstrable inequalities in treatment at the hands of government that run along racial lines are unconstitutional. They were well before Brown v. Board of Education. The prior constitutional doctrine commanded equality in separation. The Constitution now forbids separation, but it has not abandoned the goal of equality. So the issue is a factual one. As to physical facilities, the evidence seems to be neither here nor there. Negroes are vastly in the majority in the Washington school system, and in consequence they occupy some of the oldest and some of the newest buildings. But Judge Wright makes out a persuasive case concerning the distribution of teachers in the District.
The predominantly white schools have apparently had more than their share of experienced, tenured teachers. Whether this is a real advantage may be questionable, and the school administrators in Washington apparently do question it. But since experience is a criterion of competence in most professions, it is not easy to see why it should be discarded in the teaching profession. At any rate, the decisive consideration is that the Washington school system has not discarded it, but has simply tolerated a smaller proportion of experienced teachers in Negro schools.
Judge Wright is also persuaded that there is a substantial disparity in per capita expenditures per pupil among white and Negro schools, with greater expenditures, of course, in the white schools. To the extent that the disparity is real, it seems to be a function of the greater proportion of tenured – and hence higher salaried – teachers in the predominantly white schools. So it scarcely proves anything additional to that.
Finally, though faculties and other school personnel are integrated in Washington, Judge Wright finds that white teachers tend to be assigned to white schools and Negro teachers to Negro schools. It is natural that in a school system with over 90 percent Negro pupils there should be a great majority of Negro teachers; and so there is – some 78 percent. Given these two large percentages, it is a mathematical certainty that there will be great concentrations of Negro teachers in predominantly Negro schools. And many Negroes feel – they made that clear in the dispute about School 201 in Harlem – that Negro pupils should have Negro teachers, who should displace as authoritative figures the white teachers who predominated in the past. Be that as it may, the preferences of white teachers for white middle-class schools do seem in some measure to have been informally respected by the Washington school administrators.
Declaring De Facto Segregation Unconstitutional
Judge Wright deals with these matters by forbidding the track system outright, and ordering abolition of the optional zones. As to teachers, he orders the Board to present a plan for teacher assignment which will fully integrate the faculty of each school. Since many of the white schools in the Northwest section are underpopulated, he orders the school administration to provide busing to the Northwest schools for such children in overcrowded, predominantly Negro schools, as volunteer for it.
But all this is, relatively speaking, less important detail. The main and most innovating thrust of Judge Wright’s opinion is the proposition, which he adopts more squarely than any court has yet done, that de facto segregation as such is unconstitutional. And what does he propose to do about that? “Because of the 10-to-1 ratio of Negro to white children in the public schools of Washington,” Judge Wright says, “and because the neighborhood policy is accepted and is in general use throughout the United States, the court is not barring its use here at this time.” However he requires the school system to prepare and present to him a plan “to alleviate pupil segregation,” and to “consider the advisability” of educational parks, school pairings, “and other approaches toward maximum effective integration.” But what kind of maximum effective integration can there be in a school system in which Negroes constitute over 90 percent of the school population, and in which they may well ultimately constitute even more? In tacit recognition of this unanswerable question, Judge Wright adds that he will require efforts at compensatory education, to provide equal opportunities even in predominantly Negro schools. But how is Judge Wright going to see that effective methods of compensatory education are invented, how is he going to produce the trained personnel to apply them, and how, even if he could guarantee success, is he going to see to the financing of these efforts?
Here, then, is the heart of the matter. Judge Wright’s remedy for conditions that he found to be unconstitutional is still in an early stage of development, but it is reasonably clear that he, no more than anyone else, has a remedy or can put one into effect. What then is the use of such judgments? What is the use of a hortatory constitutional pronouncement urging Washington, D.C., to solve its social and economic problems? Judge Wright's opinion might have been a document issued by some group of civic leaders, or some foundation or research organization, and whatever disagreement one might have had with this or that aspect of it, one would have welcomed its attention to the school problem. But the Constitution and the judges who guard it have a well-defined role to play, which no one else can play. They are to address themselves to those features of the society with which law can deal, by defining rights, obligations and goals. No charitable organization and no study group can do that job, can invoke the power of government to those ends. It is no service to any worthy cause to saddle legal institutions with functions they cannot discharge, and to issue in the name of the law promises the courts cannot redeem.
This article originally ran in the July 8, 1967, issue of the magazine.