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Law, Race and Education: a Study of the Role of the Court Expert in the Boston Schools Desegregation Litigation Anne Richardson

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Law, Race and Education: a Study of the Role of the Court Expert in the Boston Schools Desegregation Litigation Anne Richardson LAW, RACE AND EDUCATION: A STUDY OF THE ROLE OF THE COURT EXPERT IN THE BOSTON SCHOOLS DESEGREGATION LITIGATION ANNE RICHARDSON OAKES A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy Birmingham City University October 2009 The Faculty of Education, Law and Social Sciences Abstract In the United States, following the case of Brown v. Board of Education (1954),1 federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design and implement a desegregation plan which required the restructuring of the city's public school system and judicial oversight lasting for a period of twenty years raising questions of legitimacy which have become more important over time. Moreover, the Boston plan embraced an initial commitment to educational enhancement, but the educational outcomes were subsequently marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education and thus largely doomed to fail. This inquiry takes as its focus a series of memos written by the expert advisors to the judge. They cover more or less every aspect of the Boston schools case but came into the public domain only once the case was closed and the judge donated his chambers papers to the Healey Library, University of Massachusetts in 1997. Little studied by scholars to date, these papers permit questions to be explored in a way which was not possible at the time and provide a focus for exploring contemporary concerns. To that extent, this research breaks new ground. This work draws on the archival resource to develop narratives of the experts' work which move from the initial underlying legitimacy concerns of traditional liberal analysis towards perspectives which foreground the indeterminacy of legal rights and are thus skeptical of the long-term value of rights-based constitutional litigation. The outline of a theory of the role of the court experts in schools desegregation with which this work concludes constitutes an attempt to theorize the relationship between the judge and his assistants in such a way as to make a further contribution to these debates. Brown Y. Bd. of Educ., 347 U.S. 483 (1954) 11 III Table of Contents Abstract ii Table of Contents iv Introduction 1 I. The Boston Schools Case I II. Aims of this Investigation 2 HI. Research Questions and Significance 2 IV. Constructing a Framework of Analysis 3 V. Methodology 5 A. Source Material and Rationale: The Archival Record 5 B. Referencing and Citation 7 C. Interview Material and Rationale 8 D. Practical Considerations 9 E. Academic Considerations 9 F. Research Strategy and Structure 10 G. Method 12 H. Theoretical Toolkit. 14 I. The Value of Discourse Theory and the Case Study Method for this Research 15 VI. Desegregating the Boston Schools: An Overview 16 A. The Pre-Morgan Events 17 B. The Morgan Litigation: Time Line 19 Part One: Legitimacy and the Use of Court Experts in Boston 27 I. Introduction: Research Questions and the Significance of Legitimacy 27 II. Structure 28 Chapter One: Court Experts in an Adversarial System of Justice 33 I. Court Experts and the Desegregation Toolkit 33 II. Adjudication in an Adversarial Model of Justice 35 III. The Technical Advisor as a Member of the Judge's Staff 39 IV. Edgar Coziness: Appearance versus Substance .42 V. Justification and Prophylaxis .45 VI. Balancing Process and Outcomes: A Judicial Tightrope 50 Chapter Two: Narratives of Impropriety 53 I. Conceptualizations of Legitimacy in Boston 53 II. The School Committee Narrative: Dentler and Scott Represent Excessive Judicial Power 54 III. Dentler and Scott and the Judge's Ear: The Alternative Narrative 60 IV. A Justificatory Framework 63 Chapter Three: Civic Opposition, Structural Inadequacies and Uncompromising Litigiousness .......•............................................................... 65 I. Civic Opposition: South Boston High School 65 A. The SBH Memos: Framing the Remedy 67 B. The Transcripts 68 C. The Experts' Recommendations 68 D. The Receivership Order 70 iv E. Afterword: A Smoking Gun and a Note on Methodology 71 II. Structural Inadequacy: Reform of the School Department 72 A. The Experts Urge Reform of the School Department - Judge Garrity's Court Behavior Evidences their Influence 74 B. The Inadequacies of the School Department Impinge on Assignments: Judge Garrity Distributes the Experts' Report 77 C. Judge Garrity Establishes the Department of Implementation - Superintendent Fahey Attempts a Coup - The Court is Over a Barrel 78 D. The 1977 Assignment Crisis: The Experts' Memorandum is Docketed - Judge Garrity Orders the City Defendants to Comply with the Experts' Recommendations 83 E. The Judge as Political Operator.. 86 III. Uncompromising Litigiousness: A Strategy of Disengagement.. 88 A. Special Master Proposal... 91 B. The Special Master Proposal and the Dentler Memos 94 C. Opposition Mounts 95 IV. Da Capo: Legitimacy and the Court Expert... 97 Appendix: Research Exercise - South Boston High School: Questions for Dr. Reid 103 Part Two: Race and Education in Boston 116 I. Introduction 116 II. Structure 119 III. School Closings: The Problem of "White Flight''' 122 IV. The Latin Schools: Elitism and Educational Disadvantage 124 Chapter One: The Boston Plan 127 I. A New Type of Plan 127 II. Robert Dentler and School Desegregation Planning: A Lifelong Speciality 129 III. The Boston Plan and Educational Quality 136 IV. The Sociological Connection between "Race" and "Education." 137 V. Key Features of the Plan 139 A. Districting and Assignment... 140 B. Educational Enrichment 142 C. College-School Pairings 144 D. Community Involvement 145 VI. The Missing Elements: Teaching and Learning 145 Chapter Two: From Pedagogical Sociology to Constitutional Adjudication: The Meaning of Desegregation in Social Science Research and Law 148 I. Introduction: The Paradox of Desegregation Jurisprudence 148 II. Law and Social Science in Schools Desegregation 153 A. The Differing Imperatives of Social Science and Law 155 B. Resegregation and Race-Conscious Policies 159 III. Lobbying the Supreme Court: The "Harm-Benefit Thesis" as Litigation Strategy 160 A. The Topeka Brief and the Harm ofSegregation 161 B. Social Science and Desegregating the North: The Columbus Brief and "The Web of Institutional Discriminations" 166 v C. The Harm-Benefit Thesis and Unitary Status: The Freeman and Jenkins Briefs 169 D. Does the Court Take Note? The Harm-Benefit Thesis and a Public Law Remedial Model 172 E. Pedagogical Sociology and Judicial Activism: The Search for Legitimacy 175 F. The Changing Priorities of Constitutional Adjudication 178 IV. Education versus Integration in Boston 181 A. The Campaign for Racial Balance in Boston 183 B. Lawyers versus Clients: Should Brown Have Been Decided Differently? 187 V. Conclusion 190 Chapter Three: The Politics of School Closings 191 I. Introduction 191 A. The Long Search for a Unified Facilities Plan 191 B. The Wood Plan 192 n. The Dentler & Scott Memos 198 A. The Burden of School Closings 198 B. The Politics of School Closings and Court Strategy 200 C. The Linkage and Beacon School Proposals 207 D. Commentaries on the Wood UFP 209 E. Fighting on Two Fronts: The Equalization Issue 216 F. Cutting the Gordian Knot 217 G. Desegregation and Educational Planning: The First Circuit's Warning 218 III. The Aftermath: Equalization versus Integration 221 IV. Conclusion: Law, Race and Education in Boston 223 The Limits of Rights Discourse in Boston: Toward a Theory of the Court Expert in Schools Desegregation Suits 228 I. Introduction: Was it all Worthwhile? 228 II. The Latin Schools and the Limits of Judicial Process 231 Ill. The Desegregation Plan: the Set-Aside and the Problem of Selection 235 IV. Court Withdrawal and the Latin Schools 238 V. Modifying the Racial/Ethnic Assignment Guidelines 240 VI. Disengagement and Final Orders 242 VII. The Limits of Rights Discourse 246 VIII. Towards a Theory of the Court Expert in Schools Desegregation Suits 254 Bibliography 258 I. Cases 258 II. Archival Resources 263 III. United States Constitutional Amendments 263 IV. Journal Articles 263 V. Books 268 VI. Dissertations and Papers 272 VII. Online Resources 273 VI Introduction I. The Boston Schools Case When Judge W. Arthur Garrity Jr., chosen at random to hear allegations by NAACP (National Association for the Advancement of Colored Peoplej-backed plaintiffs of systematic discrimination against black students in the Boston public schools, handed down his decision in Morgan v Hennigan, he embarked upon a relationship with the Boston public school system and its politics which lasted for over twenty years but the immediate effect was to provoke a political crisis.' The scale of the ensuing violence was exceptional even by reference to the turbulence which had accompanied the desegregation process in the South.3 The litigation and the civil disobedience which it provoked became a cause celebre gaining notoriety for the city and hero status for the presiding federal judge. As elected members of the school committee with overall responsibility for the Boston public schools made clear their intention to take no action towards desegregation except under direct court order, they forced the judge to take over what was in effect a major piece of social policy reform: the restructuring and repositioning of the Boston public school system. No education expert himself, Judge Garrity opted at an early stage for assistance in the form of four "masters", of whom two were lawyers and two social scientists, and gave them the task of devising a desegregation plan. To equip himself to exercise his own independent evaluation, he secured the appointment of two "court experts", academics with expertise in educational policy, on partial secondment from the University of Boston, who acted more or less as his personal advisers. It was these court experts as key members of the judge's personal team who provided the judge with the expertise he needed to accomplish the task he had undertaken.
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