Common Ground (50 page)

Though a trial judge has broad discretion in framing a remedy, he is by no means unrestrained. Particularly in the heavily litigated field of school desegregation, he is bound by a whole body of precedent. Indeed, barely a month after Garrity’s ruling on the constitutional violation, the Supreme Court effectively cut off one possible avenue of remedy. In
Milliken
v.
Bradley
, it over-ruled a district court which had required cross-busing between Detroit and its surrounding suburbs. Since the lower court had found
de jure
segregation only within the city and not in the suburbs, the Supreme Court held that a metropolitan-wide order “would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy.”
Milliken
marked an important turning point in the Court’s approach to school segregation. Albeit by the narrowest margin (5–4) in any major school case yet, the Court halted the advance of school desegregation at the city line. Although many students of the matter believed a clear pattern of “state action” could be detected in the suburbs—notably in government housing loans and highway construction policies which operated to keep them predominantly white—the increasingly conservative Court majority declined to push its broadened doctrine of
de jure
segregation that far.

In a scathing dissent, Thurgood Marshall accused his colleagues of relying less on “neutral principles of law” than on a “perceived public mood.” If so, it would hardly have been the first time the Court had ruled with an eye on public opinion. Prudent justices had long recognized that the Court itself had no battalions, that it drew its special power from the reverence in which most Americans held it, a veneration which could quickly evaporate if the Court collided too often with the critical interests and deeply held convictions of most Americans. The suburbs contained not only the nation’s economic and social elite, but the broad reach of its white middle class, precisely the constituency which the Court would least wish to alienate. But a majority does not need the Court to protect its rights; a minority relies on the law for protection precisely because it does not have the numbers to prevail in the political realm. Marshall and other critics warned that by exempting suburban whites from school desegregation, the Court itself had discriminated against the powerless (white as well as black), had ensured that urban remedies would increasingly pit poor whites against poor blacks, and had permitted whites who could afford it to escape integration by fleeing to the refuge beyond the city line. Henceforth, the suburbs would be to the inner city what for so long the North had been to the South.

But even had the Court ruled the other way in
Milliken
, the NAACP and other black plaintiffs would probably not have sought a metropolitan solution in Boston. In the months following Garrity’s liability ruling, the plaintiffs’ attorneys began meeting with a broad cross section of Boston’s black community, seeking a consensus on the optimum remedy. Virtually no blacks favored a metropolitan solution, largely because they believed it would dilute
their meager influence in the sea of white suburbia. Indeed, there were some who opposed
any
remedy aimed principally at mixing blacks and whites, and sought instead some form of black “community control” of their own schools. However, most Boston blacks, recognizing that they were still a small minority (22 percent) in their own city, and knowing the tenacious grip of the Irish on the city’s school system, had little faith in community control. They concluded—in some cases reluctantly—that the only way their children could ever gain their fair share of competent teachers, up-to-date books, and adequate facilities would be to attend the same schools as white children.

But before the plaintiffs could propose a remedy, the defendants had to be given a chance to frame their own plan. Arthur Garrity had scant expectation that a School Committee which had obstructed the Racial Imbalance Act at every turn would now submit an acceptable proposal for “root and branch” desegregation. Nevertheless, on October 31, he gave the committee six weeks to do so. In fact, for most of that time a majority of the committee was probably moving toward submission of a plan. Then, five days before the judge’s deadline, a seventeen-year-old white boy was stabbed by a black student at South Boston High School. Within minutes, thousands of angry whites ringed the school, trapping hundreds of blacks inside, crying for revenge. Louise Day Hicks hurried to the school and, shouting through a bullhorn, urged the crowd to let the black children go back to Roxbury. “Do it for me,” she pleaded. “I’m asking you because I’ve been with you all the way. Please help me.” “No,” they chorused back. “Niggers eat shit!” And a burly man yelled, “Shut up, Louise.” For the first time in her decade-long leadership of the movement, she had lost control of “my people.” Ashen-faced, she retreated.

After the stabbing at Southie, the School Committee was unwilling to risk the repudiation Louise had suffered. On December 16, it voted 3–2 to defy the judge and refuse to submit a desegregation plan drawn by the School Department staff. Garrity held the three-man majority in contempt of court and for a time considered sending them to jail. But fearing that would only make martyrs of them, he let them purge themselves of contempt by submitting a palpably unacceptable “voluntary” plan.

Long before that, Garrity had been preparing to devise his own plan. Even if he received a School Committee proposal, he would need to evaluate it in comparison with the plaintiffs’ plan and critiques from other quarters. At the very least, he would need an “expert” in such matters to assist him, perhaps even a “master”—a legal surrogate to conduct hearings and recommend a remedy.

His first two choices as “expert”—a Harvard sociologist, Thomas Pettigrew, and the dean of Harvard’s School of Education, Paul Ylvisaker—both turned him down. So the judge turned to Robert Dentler, the dean of Boston University’s School of Education and a specialist in drawing desegregation plans. In mid-December, Dentler proposed a more complex structure than the judge had contemplated, involving a team of experts and masters. By then, Garrity had adopted another close adviser—Martin Walsh, the New England
regional director of the Justice Department’s Community Relations Service, who became the judge’s “eyes and ears” in the city. Once Dentler recommended the team approach, Walsh began a search for the players.

In February, the judge selected four masters: former Massachusetts Attorney General Edward J. McCormack; Jacob J. Spiegel, a retired justice of the state’s Supreme Judicial Court; Francis Keppel, a former United States Commissioner of Education; and Charles V. Willie, a black professor of education at the Harvard School of Education. Rounding out the team were the two experts: Dentler and Marvin Scott, a black associate dean at BU. These six men were installed in their headquarters—the chambers of Garrity’s old and ailing mentor, Francis Ford, just down the hall—and by mid-February began their search for an acceptable way of desegregating Boston’s schools.

But if the judge was assembling his own apparatus, that went largely unremarked. To Bostonians already rankling at his orders, or those apprehensive of dicta yet to come, the responsibility for their afflictions lay with Garrity alone—no longer a mere judge interpreting the law, but the personification of all the injustices heaped on them over the years by unfeeling or uncaring authority.

Morgan
v.
Hennigan
came to be perceived as
Garrity
v.
Hennigan
, even
Garrity
v.
Boston
. Across the city that fall of 1974, slogans appeared on walls, bridges, and roadways: “Bus Garrity,” “Fuck Garrity,” “Kill Garrity.” He was hung and burned in effigy. Affixed to a gazebo in the Boston Common one morning was a carefully lettered sign:

And anti-busing activists in South Boston wrote a song about their tormentor, sung to the tune of Frank Sinatra’s “My Way”:

Thousands of letters poured into his chambers, some reasoned arguments against busing, but most of them fierce attacks on his character and lineage (“nigger lover,” “Nazi,” “child murderer”). Telephone callers besieged him at his office and home (where he stubbornly refused to get an unlisted number because, he said, he didn’t want to disrupt his teenage daughters’ social lives). One who called several times at home was Louise Day Hicks, who, angered because she couldn’t get an appointment with the judge, took out her frustration by telephoning Mrs. Garrity and posing as a mother distraught at the fate of her children (Louise’s two boys were long since out of school).

Many of the angriest letters and phone calls emphasized the judge’s remoteness
from Boston, his long residence in affluent Wellesley, where his family and friends were exempt from his court orders. One night in October 1974, a cavalcade of 350 cars, horns honking and headlights flashing, rolled out to 40 Radcliffe Road in Wellesley, where the Garritys’ cream-colored colonial house stood on a green hillside. About two hundred demonstrators remained there for two hours. Though kept at a distance by the police, they paraded through the normally placid neighborhood waving American flags and brandishing placards. Throughout this period he received frequent death threats, and at least two attempts were made on the judge’s life. A former mental patient in Dorchester was arrested one night with an M-16 rifle after telling his wife he was going to shoot Garrity. And a young Wellesley man, who had denounced the judge as a “dictator,” was apprehended on the way to Garrity’s house with a homemade bomb. After that, two deputy federal marshals were stationed outside the house day and night.

But physical danger worried Garrity less than the social ostracism to which he was subjected. Some old friends stopped calling; at cocktail parties he would often look up to see a pair of angry eyes glaring at him; and on the commuter train to and from Boston’s South Station, men with whom he once had chatted now turned their backs on him. Garrity was a gregarious man and these slights hurt him deeply. Once he asked Kenny O’Donnell why he was no longer invited to parties held by a group of former Kennedy appointees. “The fellas,” he wondered, “are they all mad at me now?” No, O’Donnell assured him, they were simply respecting the delicacy of his position as a federal judge immersed in controversy. A few days later when O’Donnell called to invite him to one of the parties, Garrity was delighted, but still apprehensive. “Are they all going to say the same thing, ‘You were a nice Irish guy and then you moved to Wellesley and you changed’?” When his old friends welcomed him warmly, Garrity told them, “I haven’t been so relieved in my life. You understand my position. I just have to carry out the law.”

Throughout his travail, Garrity rarely missed the three dinners held every year by Boston’s Clover Club, the city’s best-known Irish society. Founded in 1883 by twelve Boston Irishmen, the club faithfully maintained its traditions: members wore clover medallions on green ribbons around their necks and smoked Irish clay pipes. But there was a self-conscious wistfulness in these Celtic trappings, as if the members were trying to reassert their Irishness in the face of relentless assimilation. For the two hundred Clovers—as the members called themselves—were the city’s Irish establishment, drawn principally from the utilities, law, politics, and the press (Joe Kennedy once called them “a bunch of damn Republican Irishmen”). By 1970, with their political parodies and organized sing-alongs, they more closely resembled Washington’s Gridiron Club than the tight little Irish drinking circle of a century before.

Yet Garrity’s faithful attendance at Clover Club dinners was frequently invoked by friends as evidence that he had not ceased to identify with Boston’s Irish. In a city whose public life is still largely dominated by men of Irish ancestry, such rituals are important acts of obeisance to a cultural tradition
which has become largely a cultural myth. And nothing so demonstrated the continuing power of that myth as the persistent debate over just how Irish Arthur Garrity was.

His friends also cited his love of song and dance, always important indices of “Irishness” in Boston. His sister remembered how Arthur loved to sing around the piano at home. A friend recalled that Garrity was the first man in their crowd to learn the twist. Others enjoyed his sense of humor, but it was plainly not the jocularity of the caricature Irishman, rather a droll wit delivered so deadpan that only his quivering nostrils gave him away. Once, as he expressed annoyance at plaintiffs who were late in filing, his law clerk said, “We’ll have to noodge them along.” The judge asked, “You mean nudge?” No, said the Jewish clerk, “noodge.” Weeks later, on another matter, the clerk said, “I think you ought to fudge that point.” Garrity deadpanned: “You mean foodge, don’t you?”

More boisterous men found him a bit prissy. His law clerks had never heard him tell a dirty joke. His strongest epithets were “criminy” and “good heavens.” Once, while conferring with a more blunt-spoken assistant at the U.S. Attorney’s office, Garrity said, “That, as you would say, is the goddamnest thing I’ve ever seen.” The assistant asked, “Which of us has to go to confession tomorrow, Arthur?”

Bemused by his austere, almost ascetic devotion to the task at hand, some of his critics regarded Garrity as a “hoper”—Boston slang for “a man who goes to bed Irish and hopes to wake up Yankee.” But Garrity’s style was not so much Yankee as middle-class, the assimilationist manner of countless third- and fourth-generation Irish who have made it into mainstream America. And Boston’s busing struggle was less a battle between Irish and Yankee—or even between Irish and Yankeefied Irish—than a family feud between the Irish who had made it and the Irish who hadn’t. Indeed, the struggle in Arthur Garrity’s courtroom that year often resembled an Irish morality play, fought out between various conceptions of what it meant to be Irish in contemporary Boston. On the bench, of course, was Garrity himself, the Clover Club Establishment Irishman. Representing the plaintiffs was Nick Flannery, whose service in Washington, New York, Detroit, and Mississippi qualified him as the Cosmopolitan Irishman. Speaking for the State Board of Education was Sandra Lynch, the Emancipated Irishwoman. On the other side of the aisle, Kevin Maloney, faithfully representing Kevin White’s ambivalence toward desegregation, was the Political Irishman. And doing battle for the School Committee—after Hale and Dorr backed out in late 1974—was the indomitable J. J. Sullivan, playing the role of True Irishman.