Milliken v. Bradley

We'll hear arguments next in number 73-434, Millikan against Bradley.

Hey everyone, this is Leon Napok from Fiasco and Slowburn.

On today's episode of 5-4, Peter and Rhiannon are talking about Millikan v.

Bradley, a Supreme Court case from 1974 about school segregation.

Winding up a prolonged and historic term, a divided Supreme Court ruled today on one of the touchiest issues in the nation, bussing school children for racial balance.

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.

Chief Justice Warren Berger declared for the majority that lower courts acted unconstitutionally by ordering busing between predominantly black Detroit and 53 of its predominantly white suburbs.

Michael is off this week, but joining Peter and Rhiannon is a special guest, me, Leon Nayfok from Fiasco Fiasco and Slowburn.

This is 5-4, a podcast about how much the Supreme Court sucks.

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 lawboy.

I'm here with Rhiannon.

Hi, everyone.

And our special guest, Leon Napok.

Hi, everybody.

Whoop, whoop, whoop.

Leon is,

he told me, an expert in racism, and that's why, right, we're having him.

Peter, you've said before on the podcast that you are not a professor of racism.

That's right.

But so one of the things that we brought to our listeners today is a professor of racism.

Leon Napok.

That's right.

A podcaster of racism.

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.

Miss you, Michael.

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.

Wait, Peter, can I say why I'm actually here?

Yeah.

Sure.

I'm not, in fact, a professor of racism, lest anyone get the wrong idea.

Damn.

So as you've heard me say, how many times now?

26.

How many episodes have we made?

Something like that.

Yeah.

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.

All right.

Let's just wrap this up, Leon.

All right.

So look, it's a pretty elaborate concept.

We make podcasts about history.

Leon's podcast is about events.

Yeah.

If I understand it correctly.

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.

All right.

Yeah.

And as part of that season, like you interviewed a bunch of people, right?

Yeah.

So it's a narrative documentary.

You know, it's a mix of me telling the story as well as a lot of archival footage from TV coverage and radio coverage of 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.

Well, hey, welcome to the podcasting game, dude.

Thank you.

Thanks for letting me on.

Again, the case we're looking at today is Millikan v.

Bradley.

In 1974, this case effectively dashed all hopes of ending school segregation in America.

But to understand what all 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.

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 Millikan 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.

And like nobody's fault, right?

The point was like that no one did it.

No one made a rule that said it had to be like this.

It's just how it was.

Exactly.

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 Berger.

We've talked a bit about him.

in the past.

He was the first Chief Justice after Earl Warren.

Earl Warren, you know, we've discussed many times, famously moved the court left, especially on issues of racial justice.

Berger, on the other hand, standard bear conservative and became a spearhead of the conservative effort to fight back the gains of the Warren court.

You know, a quick note about Chief Justice Berger.

His own Wikipedia page says that the Chief Justice, quote, did not emerge as a strong intellectual force on the court.

And for Wikipedia to be, yeah, to be that fucking shady

means that you were dumb as rusty that's incredible that's a stay wikipedia to be like look this guy this guy's a bit of a moron let's be honest

not your smartest lawyer okay

and like incredible you know conservatives are trying to edit that back but someone at wikipedia is like absolutely not

no that is accurate and it stays

all right so slight change of pace rhianna and leon share the uh burden of telling us some of of the background.

Yeah, it'll be a duet today.

Four hands, right?

Isn't that when you're dueting on a piano?

Four hands.

Okay.

It's going to be a long episode, folks.

Leon, I'm moving.

I told you before this, no nerd shit on five to four.

All right, folks.

So the 14th Amendment, right?

That's what we're talking about today.

We talk about her a lot on this podcast because she's messy.

And the drama on what the 14th Amendment kind of means in terms of ensuring an equal society on the basis of race, it starts way before Millikan.

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 U.S.

history.

It's regarded as one of the best decisions made by the Supreme Court in U.S.

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 14th Amendment.

And they said, quote, that in the field of public education, the doctrine of separate but equal has no place.

Great.

Very good.

Very strong.

Thanks, boys.

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 like there were a couple of justices writing in dissent.

There's 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 like not follow that.

That's how that would have worked.

Like, you know, if it had been a more aggressive ruling, but one that was not unanimous, because that's the trade-off, right?

He basically wanted it to be unanimous and therefore it was perhaps more of a compromise.

Yeah.

Yeah.

If there had been dissents, like how would those dissents have been actually weaponized by like legislators or whoever?

I think it just gives, Peter, you can jump in, but I think it just gives an opening.

You know, like 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 like legal wiggle room to say like, this isn't 100%.

We're not all convinced of this.

There's room for interpretation.

Yeah, and I think you really can't overestimate 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 is a fear that the southern governments would be willing to undermine the legitimacy of the court by just flat out ignoring a ruling.

Yeah, we talked about this a little bit in the Terry v.

Ohio episode, which is about stop and frisk.

But, you know, 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.

I mean, there's a lot of anger about what's happening in the Supreme Court.

I thought I watched the Supreme Court suck.

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, chalas le fin.

That's it.

Wait, one comment I want to make, and we've mentioned this before, but I want to bring it up again while we're talking about Brown v.

Board.

Brown v.

Board is unanimous, but Justice Jackson had a law clerk at the time, young William Rehnquist, future Chief Justice,

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.

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, like 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 1 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 kind of lay out the sort of policy requirements of implementing desegregation.

Right.

Let them know what they need to do.

And that's called called Brown 2.

Like, I learned about Brown 2 when we were researching fiasco, and I wonder if I'm right to think that most people don't know about Brown 2.

Yeah, I think it's way less known.

And yes, it's just sort of colloquially known as Brown 2.

I didn't know they could have sequels.

They can do whatever they want, Leon.

That's, again, the point of the podcast.

I don't listen to it.

So, in Brown 2, 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, quote, with all deliberate speed.

So, like, 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 like this huge thing that they know is about to blow up something that's like so central to the way American society is built, 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, like, look, local authorities and district courts below us, y'all are going to have to use a lot of different tools to get this done to implement the ruling of Brown 1.

So we're just going to say, like, it should be done with all deliberate speed.

Like, get on it.

The thing about that phrase, though, is that it sounds like you got to do it fast.

But in fact, like, the keyword is deliberate.

And like, you have to deliberate on how you're going to do this and do it at that speed, not like

do it quickly.

Right.

That's a really good point.

And there's no specific direction.

There's no specific requirements in the Brown 2 ruling.

There's no tools for what to do there's no deadlines importantly uh 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 like how and to what extent they really are going to take this on.

So nothing happens, basically, right?

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, right?

He's not saying that, like 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.

Is there any truth?

Can I ask real quick?

Of course.

One of the people we talked to for fiasco is Justin Driver, who wrote a book about public education in the Supreme Court.

And one thing he said was that they didn't want to 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 like maintain its authority.

Is that a common way of seeing what happened with Brown 2?

I think so.

I think Brown 1 and Brown 2 are seen together and they're seen as a compromise position where the unanimity of the court was prioritized so that it could be sort of like seen as this strong consensus, but there weren't a lot of strong directives.

Yeah.

The way that Brown and Brown 2 are taught is that in a lot of ways, the court was sort of tiptoeing around the South, giving them these generalized ideas, you know, yes, you should desegregate, but very concerned that the South would simply ignore it and that the Supreme Court would look weak.

Exactly.

Not just look weak, but prove to sort of have no impact on these state and local governments in the South.

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.

Like 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 use 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.

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

Right, exactly.

And the white kids don't go to black schools because they don't want to, because they're racist.

And because the schools are worse, right?

And they don't want to go to worse.

The white schools are better.

Yes, their parents don't want them to go to black schools either.

All right, so let's take a second to get to an ad.

Today's episode of 5-4 is brought to you by Raycon Earbuds.

When you're listening to music or to a podcast, you don't want to be thinking about your headphones.

Raycon wireless earbuds do the job.

You put them in, they fit perfectly, and you forget they're there.

Raycon earbuds start at about half the price of any other premium wireless earbuds on the market.

Their newest model, the Everyday E25 earbuds, give you six hours of playtime, very smooth Bluetooth pairing, a really rich base, and a design that fits comfortably in your ears and prevents sound from leaking in or out.

You can wear your Raycons for hours and not get sick of them sitting in your ears, whether you're on a conference call or listening to podcasts.

Raycon was founded by Ray J, and celebrities like Rich the Kid and Mike Tyson are obsessed with their Raycons.

Now is the time to get the latest and greatest from Raycon.

Get 15% off your order at buyraycon.com/slash 5-4.

That's buyraycon.com/slash 5-4 for 15% off Raycon wireless earbuds.

Buyraycon.com/slash 5-4.

So in 1968, which, like Leon said, it's fully 14 years after the ruling in Brown, affirmatively desegregate.

Like you have to do something about de facto segregation on the ground, and you have to do it now.

Root and branch.

Root and branch.

Root and branch.

Yes.

And in a lot of places, that was going to mean bussing, bussing 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 sort of 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 Swan v.

Charlotte Mecklenburg, saying that busing is a constitutionally permissible method to achieve integration.

Quote, 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 like 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.

And busing had become like, you know, this incredibly hot issue where politicians would make entire careers off being the most against busing.

Yes.

In Boston, like there was this series of local leaders who like worked for the school committee, people

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 bussing.

Bussing became like the code word for desegregation and one that conveniently takes race out of the equation.

Oh, it's about bussing.

And one thing that's worth noting is that the series of decisions that we just went through, people in the north, like 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.

Like in northern cities, you know, there was real segregation, but not because there was a law in the books, right?

And for that reason, there was this sense of innocence, right?

Like, well, the Supreme Court is fixing the South.

We're good up here.

Exactly.

You know, we're not passing laws 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 like lawyers for the NACP 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-grained policies having to do with like 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 like a blunt instrument such as a law.

Right.

And so it was in 1973 that the court heard its first case about northern-style segregation, and that was Keyes v.

School District number one 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, and then you have community schools.

that attract people from those neighborhoods.

Right.

So a place like Denver, you know, the school district there would say, we don't segregate our children.

Like, we just have neighborhood schools.

In Boston, they say the same thing.

We have neighborhood schools and people who live in those neighborhoods go there.

There's nothing pernicious here.

How dare you accuse working-class Boston of racism?

How can I be racist when I can't even pronounce the hot ah?

Wow.

The distinction between de jure and de facto is like, is there a law?

And so the decision keys 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?

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.

Yeah, was he a bit of a racist?

Right, right.

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

Right, right.

Did he really say the N-word on the tape side?

Leon, I swear to God.

I should know this, but you know.

Yeah, no, the Nixon tapes have just about every racial slur.

Yeah.

Name your favorite, it's there.

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.

Right.

And we should note, George Wallace, you know, the segregationist former governor of Alabama,

has a moderately successful Democratic primary campaign in the early 70s.

For president.

Yeah, for president.

His campaign essentially rejuvenated by the busing crisis.

That's right.

Should also note that

aside from Richard Nixon, another person who was very anti-bussing 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, but busing is bad.

The problem with that statement is it's having Brown be board of education, but none of the shit that followed.

Exactly.

You stand for the principle, but you are against the one way that we have to actually bring this about now.

Yeah.

And I think that's exactly what sort of Milliken represents in the line of this kind of 14th Amendment jurisprudence.

So all of this is happening, and finally we get to Millikan.

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, you know, sort of by another name.

And the judge ordered them to implement a desegregation plan that included busing.

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.

Right.

A lot of evidence

presented.

Yeah.

Just fucking forgot a word.

Who's never been before a jury now, huh?

Well, I was going to say admitted, because 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.

Right.

So, like Rhys said, the lower court finds finds 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 whiter 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 bussing, right?

Bussing 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, right?

Yeah.

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

Yeah.

So, you know, the court's reasoning is resting on this distinction between purposeful and sort of coincidental segregation.

Yeah.

So the court is saying, yes, these suburban school districts are segregated, but that's just a coincidence, right?

And this reasoning, it's fundamentally contradictory.

What the court is saying is, yes, Detroit proper has has segregated schools because of intentional discrimination, but the suburban school districts are innocent, which deeply misconstrues how segregation actually works.

Exactly.

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 affect 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.

Exactly.

Yeah.

Right.

And like the reason it's constitutional, right, is that no one person made it that way, but everyone made it that way.

Like the reason these suburban schools are all white is that all these white people moved away to the suburbs where, you know, incidentally, black people have a hard time getting rentals and leases.

You know, this idea of innocence, we've like said that that's sort of 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.

Yeah, exactly.

I mean, this is happening at the same time as like redlining and economic discrimination against black people is happening.

There's rampant racial discrimination in housing, like you said, including literally like 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 tried to move to white neighborhoods, right?

Arson, vandalism, literal assault, all of it.

There was like an insane bombing.

A bunch of school buses got blown up

by the KKK in Pontiac, which was outside Detroit.

Yeah.

Right.

Real terrorism.

Can you imagine?

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.

Yeah.

So Justice Berger 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 sort of 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.

Like the whole state as opposed to a school district, right?

Right, right.

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.

I mean, and the reason they had to do it this way, like there weren't white students in the Detroit school system.

Exactly.

They were gone.

Like, they had moved away.

And so, if you wanted to desegregate those schools, like without including these suburban school districts, there's no adequate remedy here.

Exactly.

If Metro Detroit has schools that are 80% black, how can they desegregate on their own?

Right.

How can Detroit reduce the unconstitutional concentration of black students without either subtracting black students or adding white students?

Exactly.

If a district is 80% black, it doesn't matter how many different ways you try to reshuffle the students.

You'll never be desegregated.

It It is a solution that is designed and destined to fail.

Yeah.

And just to jump in with like a connection to Boston, you know, in Boston, there was a complaint about the busing plan, which said, why are you taking these black kids from this poor black neighborhood, you know, and moving them from this poor school into a school in a poor white neighborhood that's just as poor and just as shitty?

You know, 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 kind of made it so that kids in Boston, you know, wouldn't be bussed to schools in suburbs like Brookline or Wellesley.

You know, like 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 bussed them into Wellesley or whatever or Brookline, you know, that would have been a real change for those kids.

But they were instead sent to, you know, Southeast.

I want to cut in because that does increase their chance of becoming a goodwill hunting.

That's my understanding.

And I think the reason Milliken was so scary to suburban parents is that living in the suburbs was their way out of being involved in integration.

And suddenly, like their kids whom they intended to send to their nice suburban school were going to 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 sort of motivated by racism.

Right.

It's not about racism.

It's about not wanting my kid to interact with black children.

Right.

Right.

And look, I mean, 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.

And over time, those schools will become better and better.

Obviously, in the short term, that's not going to happen, right?

If your kid's getting bussed to some shitty school for the next two years or whatever, before he graduates middle school or high school or whatever, the school is not going to get drastically better in that time period.

All that to say, certainly white families had some, you know, 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, you know, lost to George McGovern.

He won Michigan.

Yeah.

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 sort of 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.

Wow.

Bad politicians got shot back then.

And yes, some good ones or like okay ones got shot too.

But like, look, if 10 politicians are getting shot and one of them is George Wallace, I'm sorry, but that's a win.

I think we've covered a lot of great ground here, and we should pause for an ad.

So, you know, back to the law and the opinion here.

Justice Berger 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 bussed to more black schools.

We've talked a bit in the past about the hollowness of the conservative formalistic view of rights.

Berger 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.

Exactly.

It would be a punishment for them, right?

Right.

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 sort of gives it away, right?

That this is about not wanting those people here.

Right.

Right.

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?

And

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

Yes.

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 sort of 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 the way in which we should conceptualize the role of the court in American government.

You know, and it's worth underscoring that Millikan, you know, 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 like creates this massive loophole, you know, in the place of all the other ones that the court had been closing over the course of of more than a decade, which is that you could 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.

Suddenly, you can just do that.

And then, you know, the entire project of desegregation is thereby undermined.

Yeah, exactly.

And I think I want to highlight.

the role of the Supreme Court, I guess, in all of this.

You know, the reason why Brown versus Board of Education is taught as so important is that it really is not just a watershed moment, like in the sort of American experiment broadly, but really specifically in law and a huge opportunity and sort of new conception of the 14th 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 sort of the kind of legal philosophy of the 14th Amendment is that the 14th 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 14th 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 14th Amendment and read the role of law and what we have law for completely differently.

It's something that's sort of more like an anti-classification thing, this kind of narrow conception of the 14th Amendment, that what the 14th Amendment, what 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 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.

Yeah.

What's weird weird to me is that like, it's not like conservatives are denouncing Brown v.

Board, right?

Like everyone's on board with Brown v.

Board at this point.

And

now they are.

Well, I'm just saying.

Like 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.

But even if 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, like in every major city, more than just just every major city.

But not by law, right?

And they read Brown v.

Board on purpose to mean, they interpret it that way on purpose, right?

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?

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.

But presumably there's a reason why you don't want it to be in the law.

Like, 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?

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.

You know, if you've traveled across the industrialized world, have you seen pockets of urban decay anything like what you see in America anywhere?

Re, you used the term the American experiment a little bit tongue-in-cheek a few minutes ago.

Right.

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

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, like black family values and shit like that, right?

I think it's important as we wrap up to contextualize this as part of a broader conservative conception of social hierarchy.

Yes.

I mean, as we mentioned, you know, Berger'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 Berger'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.

You see this in like the Trump tweet, right, from this past week.

Like, what was it, like the suburban lifestyle, right?

It's like

people like me thought of that phrase like he was like inventing a phrase, which I think he was, but there's a reason he chose that word, which is that like, I think that worldview holds the suburbs as like a place to aspire to, confers the status of like achievement and stability, right?

And it's a dog whistle for whiteness.

Yeah, of course.

Of course it is.

What other benefit do the suburbs have?

Right, exactly.

It's just that this is a white community.

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

Look, it's why conservatives oppose welfare benefits, right?

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, right?

When we look back at that era and we see explicit racism all over the place.

Or the South as opposed to the North, right?

Right, right.

Their worldview is defined by the idea that people's socioeconomic status is deserved.

And so, you know, 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, you know, 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 Berger's opinion, not some convoluted analysis of the scope of a constitutional remedy.

Exactly.

All right, 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.

And another promise, no Leon.

Leon, thanks for joining us.

Leon, are you

our executive producer?

I think I'm credited with editorial oversight.

Okay, Leon, NAFI, not our executive producer.

I know a power vacuum when I see one.

I'm going to say it right now.

I'm the executive producer.

You can be the executive producer if I can plug my podcast one more time.

Go listen to Fiasco, everybody.

If you liked Slowburn, if you're interested in public education or Boston or the civil rights movement, check out the new season coming to Luminary August 13th.

Follow us on Twitter at 54Pod.

Tell your friends.

And if you are RBG's doctor, call us.

Just we would love to talk.

Reach out.

Yeah.

Open invitation.

Absolutely.

54 is presented by Westwood One and Prologue Projects.

This episode was produced by Kacha Kumkova with editorial oversight by Leon Napok and Andrew Parsons.

Our artwork is by Teddy Blanks at ChipsNY, and our theme song is by Spatial Relations.

From the Westwood One Podcast Network.