Friday, November 8, 2013

Desegregation v. Busing: The Inside Story

The articles from Denver University's symposium on Keyes v. School District No. 1 are now available on westlaw.  The symposium includes articles by Mark Tushnet, Kevin R. Johnson, Michael A. Olivas, Rachel F. Moran,  and Phoebe A. Haddon, as well as memoirs by individuals personally connected to the events in Denver.  While all address interesting topics, Mark Tushnet's keynote address and article,  A Clerk’s-Eye View of Keyes v, School Dsitrict No. 1, 90 Denv. U. L. Rev. 1139 (2013), offer a particularly interesting account of the inner workings of the Court surrounding the case.  Tushnet was clerking for Justice Thurgood Marshall when Keyes was decided.  Relying on his personal experience and other new available materials from the Court, he explores the complexity of the Court's deliberations.  

The story of these internal debates is not entirely new.  Justice Powell's concurrence, for instance, explicitly reveals the depth of his disagreement with the Court.  And, Bob Woodward and Scott Armstrong's book from 1979, The Brethren, also explored some of these divisions.  Tushnet, however, best captures the doctrinal battles occurring on the Court and the personalities behind them.  As he notes, seven out of eight justices found there to be a constitutional violation in Keyes. The fractured decision represented not so much a debate over what to do with Denver, but a fight over what Keyes would mean for places like Detroit and Boston.  

Although not explicit in the opinion, the fight over busing largely drives the Court's final decision.  Powell wanted to reject de jure versus de facto distinctions, but in doing so, he wanted to limit the available desegregation remedies, particularly busing.  The majority wanted to keep busing as a way to affirmatively further integration.  The only way it could get the votes to do that was by drawing a distinction between de facto and de jure segregation.  That distinction would shield many districts from busing, but keep it well alive in throughout the south.

From my perspective , it is not clear that the Court fully appreciated the long term ramifications of its decision.  The Court may have been too caught up in the times, which is understandable, and unsure of the best path in regard to its first northern desegregation case.  Regardless, Keyes is later cited as the foundation for requiring intent to prove a constitutional violation in all racial discrimination cases.  As a result, Keyes drew the line that placed the bulk of racial inequality in all areas of life off-limits.  And while the de jure-de facto distinction may have saved busing in some districts (the evidentiary presumption in the case also became a powerful tool in the south), it created the principle by which to later place significant limits on desegregation.  In effect, Keyes was the beginning of the end for desegregation.

All of the article titles and authors follow the jump.

A Clerk’s-Eye View of Keyes v. School District No. 1

Mark Tushnet

From a “Legal Organization of Militants” into a “Law Firm for the Latino Community”: MALDEF and the Purposive Cases of Keyes, Rodriguez, and Plyler
Michael A. Olivas

Untoward Consequences: The Ironic Legacy of Keyes v. School District No. 1
Rachel F. Moran

The Keyes to the Nation’s Educational Future: The Latina/o Struggle for Educational Equity
Kevin R. Johnson

Has the Roberts Court Plurality’s Colorblind Rhetoric Finally Broken Brown’s Promise?
Phoebe A. Haddon

Foreword: How I Rode the Bus to Become a Professor at the University of Denver Sturm College of Law; Reflections on Keyes’s Legacy for the Metropolitan, Post-racial, and Multiracial Twenty-first Century
Tom I. Romero, II

A Personal Memoir of Plaintiffs’ Co-counsel in Keyes v. School District No. 1
Craig Barnes

Keyes v. School District No. 1: A Personal Remembrance of Things Past and Present
Robert T. Connery

Personal Memoir: Indelible Memories of My Clerkship with Judge William E. Doyle
Jane Michaels

Personal Memoir: Judge William E. Doyle and Governor Ralph L. Carr; Peers for Equal Justice
Gregory J. Hobbs, Jr.

Conferences, Racial Integration and Diversity, Scholarship | Permalink


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