Common Ground (45 page)

Only when the city faced a loss of state aid did the Mayor intervene in the desegregation dispute. Such was the case in 1971 when the State Board of Education and the School Committee reached an impasse over enrollment at the new Lee elementary school, built largely with state funds on the condition that it open “balanced.” To facilitate that result, the school was placed near the border between black and white Dorchester. But, due in large part to B-BURG, that border had shifted, leaving the neighborhood around the school largely black. To balance the Lee, the School Committee would have had to take the unpopular step of transferring white children from adjacent elementary districts, and not surprisingly, the committee balked. The state threatened to withhold funds, which could mean an increase in the city’s tax rate in an election year. The Mayor used what influence he had, and the committee eventually voted 3–2 to balance the school—53 percent white and 47 percent black.

But the settlement was short-lived. Outraged white parents launched a campaign against it, and at an emotionally charged public hearing, School Committeeman John Craven dramatically switched his vote, permitting white parents to keep their children in their neighborhood schools. Craven explained his reversal by charging that he had been “completely misled” by the School Department staff. “The truth is that it is impossible to racially balance the new Lee School without forced busing,” he said, “and I’ve always been opposed to busing.” (In fact, no busing would have been necessary, since the longest trip required under the plan was four-fifths of a mile.) Craven, who had been hissed when he entered the auditorium, was cheered and embraced on his way out. Ever since Louise Day Hicks had led the way in 1963, most School Committee members had fed the fires of resistance to school desegregation, but there could be little doubt that they were fairly representing the mood of their constituents. If democracy meant responding to the will of the majority, Mrs. Hicks was probably justified in describing the second Lee School hearing as “an exercise in participatory democracy.”

But constitutional democracy also protects a minority from the unrestrained exercise of majority power, and sooner or later, Boston’s struggle of majority will vs. minority rights was bound to find its way into court. Late in September 1971, concluding that the School Committee had “taken official action to increase and encourage racial isolation,” the State Board of Education ordered an immediate freeze on $200 million worth of new construction in Boston and withdrawal of $14 million in state aid. In October, the School Committee brought suit in Superior Court, challenging the board’s actions, and the board countersued, asking the court to enforce the Racial Imbalance Act in Boston.

At almost the same moment, black parents in Dorchester, dismayed by the Lee School fiasco, began contemplating a federal suit and approached Stephen Rosenfeld, then director of Boston’s branch of the Lawyers’ Committee for Civil Rights. Through the sixties, Northern attorneys in the Lawyers’ Committee had defended indigent blacks in Mississippi and Alabama, and when
they returned home they founded Northern branches to carry on the struggle there, using the
pro bono
services of private firms. When the Dorchester group approached Rosenfeld, he took the case to Foley, Hoag & Eliot, which assigned the case to two young associates—Roger Abrams and John Leubsdorf (a former
Law Review
colleague of Colin Diver’s). Neither Abrams nor Leubsdorf had any experience trying school desegregation cases, so they were delighted to learn that two former Justice Department officials, then across the river at Harvard, were planning to file just such a suit.

J. Harold Flannery and Robert Pressman were veterans of the Southern civil rights struggle. Flannery had served for twelve years in the Justice Department’s Civil Rights Division, trying dozens of Mississippi desegregation suits; he left the Department in 1970 to become deputy director of Harvard’s Center for Law and Education. In 1971, “Nick” Flannery told Nathaniel Jones, counsel of the NAACP’s Special Contribution Fund, that Boston was a “sitting duck” for a school suit, and several months later the NAACP agreed to finance a Boston suit.

Late in 1971, Leubsdorf and Abrams, representing the Dorchester clients, met with Flannery, Pressman, and Jones, representing the NAACP, and decided to merge their two suits. The fifty-three plaintiffs, representing a “class” of black children and their parents, were chosen from lists supplied by both groups. As lead plaintiff the lawyers selected a twenty-four-year-old mother of three school-age children named Tallulah Morgan, and the case became
Morgan
v.
Hennigan
(James Hennigan was then the School Committee chairman). Filed in March 1972, it began its passage through the Federal District Court as the State Board’s battle with the School Committee worked its way through the state courts.

Eighteen months later, in October 1973, the Massachusetts Supreme Judicial Court ordered the School Committee to put a state-drawn desegregation plan into effect the following September. “The committee must understand that the time for testing the meaning of the statute has long since passed,” the state court said, “and the time for prompt action to implement it is at hand.” The first-stage plan would have reduced the number of unbalanced schools from sixty-one to thirty-one, by busing some 17,000 students. Though it directly affected only about three-fifths of the city, the plan exchanged students between Mrs. Hicks’s beloved South Boston and the black heartland of Roxbury, a notion not calculated to assuage the fears of either community.

Although the School Committee’s lawyer advised that “all legal avenues have been exhausted” in the state case, the plan’s opponents were determined to try one more gambit. If they could repeal the Racial Imbalance Act, they believed they could nullify any court decree under its provisions. (Lawyers were by no means sure of that, but the opponents pressed ahead.) On April 3, 1974, opposition spokesmen paraded before an all-day hearing in the State House auditorium while, outside on the Boston Common, 25,000 others staged a massive demonstration demanding repeal.

From his office window high on Beacon Hill, Colin could see the huge
throng swarming across the great lawn which swept from the State House steps down to the Park Street Station. Like a medieval army, they wore bright insignia of their sacred turf: green armbands for South Boston, brown for Charlestown, purple for Hyde Park, red for Dorchester. Colin made out the banners and placards jostling in the spring air—“No Forced Busing,” “Down with Unjust Laws,” and “Suburban Meddlers Go Home.” He could hear the rhythmic chants borne upward on the wind—“Never! Never!” and “Hell no, we won’t go.” And he watched with mounting distaste as one group of youthful demonstrators clambered atop the Saint-Gaudens monument to the Brahmin Lieutenant Robert Gould Shaw and his black regiment, the youngsters’ sneakers scraping the bronze visages of the soldiers who had marched to death together in 1863.

Three weeks later, the state legislature repealed the Racial Imbalance Act. Abruptly the focus shifted to the Governor. Should he veto the repeal or not? Frank Sargent was running for reelection that November, very likely facing Michael Dukakis, a liberal Democrat with strong support in Boston’s suburbs. Sargent’s conservative advisers warned him that his backing in traditional Republican circles was already draining away, that he could ill afford to alienate the Boston Irish. Since Dukakis would presumably preempt the liberal vote—though even he had backed away from busing by proposing “community control” of schools—Sargent should move to the right and identify himself with the anti-busing forces. He should sign the repeal.

The Governor’s liberal advisers, on the other hand, contended that school desegregation was an overriding moral issue which could not be blinked. Moreover, for the Governor, who had supported the Racial Imbalance Act from the start, to back away from it now on the eve of its long-delayed implementation would be widely perceived as an act of self-serving cowardice. Finally, whatever they did about the state law, the federal court was on the verge of a decision. If, as was widely expected, the court ordered Boston desegregated anyway, all that repeal would accomplish would be to give aid and comfort to those determined to resist
any
court order. The Governor had no choice, the liberals said; he had to veto.

Both Bill Cowin and Colin strongly favored a veto. “Christ, Bill,” Colin said at lunch one day. “The Governor’s got to stand firm. This is no time to be copping out. It’s the law. It’s right. Let’s get on with it.” At several kitchen cabinet meetings during the next few days Bill urged that position on Frank Sargent.

On the evening of May 10—barely twenty-four hours before the deadline for action—the Governor went on statewide television to announce: “We have not come down a nine-year road only to turn our backs on those who deserve their place in the sun, their right to a quality education. I will not repeal the racial imbalance law. This afternoon, in the office from which I now speak, I have vetoed the legislation that would repeal that law.” But then he shocked many of his supporters by revealing that he would soon seek to replace the old law with a new one which employed voluntary rather than mandatory methods.
Instead of two-way busing for both races, he proposed a one-way “freedom of choice” plan for black children, plus an emphasis on “magnet schools” designed to attract integrated enrollments.

Louise Day Hicks welcomed the Governor’s plan as “a vindication of all those who have opposed forcible busing.” Doris Bunte angrily denounced it as “a backdown on the commitment to desegregate Boston schools.”

Colin, too, was bitterly disappointed. The Governor had lost his nerve. Experience in the South showed that “freedom of choice” simply didn’t work. But perhaps they had all expected too much of a politician in an election year. Now, Colin thought, it was all up to the federal court.

N
o one can understand the feeling that comes to a Southern Negro on entering a federal court,” wrote Martin Luther King, “unless he sees with his own eyes and feels with his own soul the tragic sabotage of justice in the city and state courts of the South. The Negro goes into those courts knowing that the cards are stacked against him. But the Southern Negro goes into the federal court with the feeling that he has an honest chance of justice before the law.”

King’s colleague, the Reverend Ralph David Abernathy, put the same sentiment more theatrically. When Judge David Holcombe Thomas lifted the legal barriers to King’s march in Selma on March 15, 1965, Abernathy declared, “God spoke from the federal court.”

From the late fifties well into the sixties, the federal judiciary was, if not quite the voice of God, then the voice of the United States Constitution in the former Confederate States. When all other avenues were closed, when sheriffs, cattle prods, hound dogs, and fire hoses stood between the black man and the rights he sought, the United States district courts were his last, best hope. Not all Southern district judges lived up to their responsibilities. Some were consistently hostile to civil rights suits. But they were generally overruled by the judges of the Fourth and Fifth Circuit Courts of Appeals, who, further from the political grass roots, were freer to challenge public resistance. Most members of the Southern federal bench ultimately put loyalty to the Constitution above loyalty to regional attitudes.

Yet a federal judge’s order was not, at the start, sufficient to ensure compliance with the law. For years, Southern politicians routinely defied such orders, convinced that they could do so with impunity, and that even if they faced legal sanctions, those would only enhance their political fortunes. Only after Dwight Eisenhower and John Kennedy sent federal troops to enforce desegregation rulings in Arkansas, Mississippi, and Alabama did the lesson
begin to sink in. Governor Earl Long of Louisiana is said to have warned Leander Perez, the die-hard segregationist of Plaquemines Parish: “Look, Leander, don’t you understand? The feds have the atom bomb.”

But it was one thing to threaten force against the South, long regarded as the country’s most benighted region, and quite another to marshal it against the North, home of the nation’s leading banks and corporations, its most powerful media, and the very liberals who most passionately supported the civil rights movement. For more than a decade, the federal government’s legal guns were locked into place, facing south. Only in the late sixties and early seventies did they begin to swivel and train their barrels on the hitherto exempt cities of the North.

In the United States District Court for the District of Massachusetts, cases are allocated among the judges by a complex lottery system whose purpose is to distribute the work load evenly and to preclude even a whisper of suspicion that a case had been intentionally assigned to a particular judge. At the start of each court term, a set of envelopes is prepared for each of the legal categories heard by the court: admiralty, bankruptcy, civil rights, habeas corpus, libel, patent, and so forth. In the spring 1972 term, each of these sets comprised fourteen small brown envelopes—two for each of the seven judges then sitting. In each envelope, a deputy clerk placed the typewritten name of one of the judges. The fourteen envelopes were then shuffled, secured by a thick rubber band, and placed with the other stacks in a blue card drawer on the clerk’s desk. At 10:30 on the morning of March 15, 1972, when the complaint in
Morgan
v.
Hennigan
was filed, the clerk reached for the “civil rights” stack, took the first envelope off the top, ripped it open, and retrieved from it the tiny slip of white paper. On it was typed the name “Garrity.”

Once, back in County Sligo, the name had been McGarrity. Patrick and Bridget McGarrity’s three sons were high-spirited miners in Sligo’s rock quarries who became embroiled in the Young Ireland rising of 1848. When the English routed the ill-prepared rebels, the three brothers fled to the New World, where they made their way under the Americanized name of Garrity.