Half a century ago the civil rights movement’s effort to carry the campaign for school desegregation from the South to the urban North ended in failure. In The Containment, Michelle Adams’s account of how that effort was effectively shut down by public opposition, opportunistic politics, and a hostile Supreme Court, there are powerful parallels with today’s turn against the goal of racial equality.
Adams, a law professor at the University of Michigan, doesn’t draw these parallels explicitly. Her book tells the story of Milliken v. Bradley, a Supreme Court case from 1974, which invalidated a federal district judge’s desegregation order that encompassed not only Detroit’s heavily Black schools but also the nearly all-white schools of fifty-two surrounding suburban school districts. Without a multidistrict plan, the judge had found, there were not enough white children in Detroit’s schools to remedy the city’s unconstitutional segregation. His solution was racially conscious school assignments across three counties, and a federal appeals court agreed. The Supreme Court did not.
Just a few years earlier, the country appeared to be nearing a settlement on questions of race, with courts finally embracing the obligation to fulfill the promise of Brown v. Board of Education (1954) in the South, where segregation had been enforced by law. Segregation in the North, meanwhile, remained entrenched in many urban school districts, presenting the civil rights movement with an obvious if challenging target. How the Supreme Court that rejected the legal regime of segregation in Brown might have responded to the effort to “take Brown north,” where segregation was maintained by political and social forces but not by statute, we will never know. Richard Nixon’s election in 1968 ushered in a period of fundamental change at the Court. Chief Justice Earl Warren, who had written the unanimous Brown decision, retired the next year, followed in rapid succession by three other justices. As Milliken v. Bradley reached the repopulated Court, time ran out.
The Milliken majority did not question the facts that a forty-one-day trial had established: Detroit’s schools were disproportionately Black, and only a metropolitan-wide order could provide enough white students to achieve meaningful integration in the city. But because the suburban school districts had not been “shown to have committed any constitutional violation,” wrote Chief Justice Warren’s successor, Warren Burger, it was “wholly impermissible” to include them in a remedy. The constitutional right of Detroit’s Black schoolchildren, he declared, “is to attend a unitary school system in that district.” Period. The vote was 5–4, with the four Nixon appointees in the majority.
Even though its effects are obvious today across many northern metropolitan areas, Milliken is not a widely known case. Few people would recognize the name. But it was a galvanizing political issue from the original filing of the class action lawsuit by a group of Black Detroit parents and the NAACP in August 1970 until the Supreme Court’s decision on July 25, 1974—the day after the justices ruled unanimously against Nixon in the Watergate tapes case.
In his 1972 reelection campaign Nixon had made much of the prospect that Milliken, then pending in Detroit, would result in “forced busing,” as had George Wallace, who shocked the political establishment that year by winning Michigan’s Democratic presidential primary—a victory fueled at least in part by his antibusing message. Not to be outdone, Nixon ran a television commercial declaring that “President Nixon believes that busing is wrong. And he intends to do something about it.” In his speech at the Republican National Convention, Adams writes, he “hinted at the idea that desegregation constituted some kind of reverse discrimination against whites.” Nixon said that he wanted to “root out every vestige of discrimination in this country of ours,” but that “the way to end discrimination against some is not to begin discrimination against others.”
Thirty-five years later, as Adams notes, Chief Justice John Roberts used almost the same words to explain why the Supreme Court was declaring unconstitutional modest voluntary integration plans adopted by the cities of Seattle and Louisville, Kentucky. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote in Parents Involved in Community Schools v. Seattle School District No. 1 (2007).1
“Milliken was where the promise of Brown ended” is Adams’s blunt appraisal of the decision’s import. On one level, that is a simple conclusion, with facts to back it up: the white population of Detroit’s schools, roughly 30 percent when the case first went to trial in 1971, is just 2 percent today, with nearly 80 percent of all students eligible for free or reduced-price lunches. The surrounding suburbs and their schools remain mostly white.
As Adams acknowledges, to say that Milliken ended Brown’s promise raises the deeper question of what that promise was. The lawyer for the suburban school districts, arguing in district court against the prospect of a multidistrict remedy, described Brown’s requirement as only “removing any legal or other barriers which preclude one from attending a school district on account of their race,” without an affirmative obligation to do more. That is essentially the current Supreme Court’s view, as expressed in the Parents Involved case.
But if fidelity to Brown requires more, what exactly might that be? Adams explores the deep and often bitter division over goals that accompanied the effort to bring Brown north. Detroit’s Black community was split between advocates for integration and those who sought “community control” that would enable Black school administrators and parents to set their own course. And those seeking integration were split further between people for whom the vision of Black and white children sitting side by side in a classroom was a worthy goal in itself and people for whom the purpose of integration was essentially instrumental: a school with white students would likely receive more resources.
Verda Bradley, the named plaintiff in the lawsuit, was in the latter category. “For her, desegregation was a means to an end,” Adams writes. Bradley joined the case on behalf of her six-year-old son, who was attending a crumbling, overcrowded, nearly all-Black elementary school. “I want to see the schools better,” she told the Detroit Free Press—a “strategic” goal, as Adams describes it. The legal historian Tomiko Brown-Nagin similarly used the word “pragmatic” in Courage to Dissent (2011), her “bottom-up” account of the civil rights movement in Atlanta. That book, which won the Bancroft Prize, deemphasized the role of courts in order to depict a profound if largely forgotten struggle within the civil rights community not only over tactics but also over the meaning of equality in the public schools. “Pragmatism privileged politics over litigation, placed a high value on economic security, and rejected the idea that integration (or even desegregation) and equality were one and the same,” Brown-Nagin wrote.
The Containment, while focused on a single Supreme Court case, is very much in the tradition of Brown-Nagin’s book. It is not so much about the Court as about a social movement that had to find a way to speak effectively about the problem it confronted before it could begin to seek redress. The lawsuit that led to the Supreme Court decision does not appear until page 117, and the decision itself takes up only one short chapter out of twenty-four. The book’s first hundred pages are essential for understanding the central fact about the Detroit public schools—one that the lower courts understood but that the Supreme Court never acknowledged. That fact is the “containment” of the book’s title, meaning the barriers that Black people faced as they crowded into the few areas of Detroit open to them.
The dictionary definition of “containment” is “the act of controlling or limiting something or someone harmful.” In its Cold War usage, containment was the basic US policy for resisting Soviet expansion. In public health, containment is the strategy for protecting a community from a disease for which no effective treatment exists. That notion of containment as protection against contagion figures in Adams’s use of the word:
It was impossible to understand the plaintiffs’ containment theory without appreciating the extent to which blacks were viewed not just as harm-causing agents, but as contagions to be quarantined and avoided at all costs.
With its factory jobs, Detroit in the 1940s and 1950s was a magnet for the Great Migration from the South; the city’s Black population doubled in that first decade, but limited in their opportunities by racially restrictive covenants, bank redlining, and the discriminatory practices of realtors and title companies, the newcomers had few places to live. By 1948, when the Supreme Court declared restrictive covenants unenforceable, the pattern had long been set. Detroit’s Black population was essentially confined to one quarter of the city.
As white people left for new suburban subdivisions, Black neighborhoods expanded, but only within the city limits; the suburbs remained closed to them. Detroit’s schools became majority Black in 1963. By 1967 the racial divide was stark, with housing segregation having led inexorably to segregated neighborhood schools. More than 70 percent of Black elementary school students attended schools that were at least 90 percent Black, while the dwindling numbers of white students attended schools that were at least 90 percent white.
Government policy maintained and amplified the problem. For one thing, public housing in Detroit was officially segregated while the practice was permitted by law, and it remained functionally segregated long after the passage of the 1968 Fair Housing Act. More broadly, as Richard Rothstein documented in detail in The Color of Law: A Forgotten History of How Our Government Segregated America (2017),2 the mortgage insurance policies of the Federal Housing Administration made it nearly impossible for Black would-be homeowners to get mortgages anywhere that white people lived. Rothstein cited the FHA’s underwriting manual, which warned banks that “if a neighborhood is to retain stability it is necessary that properties shall continue to be occupied by the same social and racial classes.” Adams notes that the Michigan state agency in charge of licensing realtors endorsed a similarly worded ethics code promulgated by the National Association of Real Estate Boards, which stated that
a realtor should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality, or any individuals whose presence will clearly be detrimental to property values in that neighborhood.
For Michelle Adams, this history is no abstraction. She was born in Detroit in 1963, the daughter of solidly middle-class parents whose own parents had made the Great Migration. Her father was a lawyer, one of two Black men to graduate from the Detroit College of Law in 1957. She grew up in an almost entirely white neighborhood called Palmer Woods, in a house her parents had built on a corner lot that they acquired in 1967. How was that possible? All Adams knows is that a “white intermediary” bought the land and assigned the deed to her parents: “How my parents obtained the intermediary and what he charged for his service is unknown. But what I distinctly remember is my mother telling me that they couldn’t have bought the land without him.”
As young activist lawyers in Detroit considered litigation to desegregate the city’s schools, the facts were clear, but the law was not. The movement’s judicial victories had been against legal segregation in the South. There were no laws in the North that separated students by race. This was the challenge of taking Brown north, and it was acute. Under the Supreme Court’s interpretation of the Fourteenth Amendment’s Equal Protection Clause, plaintiffs needed to show that a claimed constitutional injury was intentional and that it resulted from “state action,” not simply from the inevitable outcome of private choices.
In 1968 the Kerner Commission, set up by President Lyndon Johnson after riots in Detroit, Newark, and dozens of other cities in what became known as “the long hot summer of 1967,” had called for the enactment of a fair housing law, drawing the link between housing and schools. “Racial isolation in the urban public schools is the result principally of residential segregation and widespread employment of the ‘neighborhood school’ policy, which transfers segregation from housing to education,” its report said. But was this enough to get a lawsuit over the state action standard? Would a court even find Brown to be applicable in northern cities like Detroit? In the absence of guidance from the Supreme Court, the potential plaintiffs faced a “void.”
To those at the highest level of the movement’s leadership, it was not clear that proceeding with a northern strategy was the best choice. Adams suggests that Thurgood Marshall, who served as president of the NAACP Legal Defense and Educational Fund from 1940 to 1961 and was appointed to the Supreme Court in 1967, was not completely on board. Speaking at the NAACP’s annual convention in 1961, he had observed that “the past year has also brought into focus the segregation by custom in the North.” In Adams’s view, that statement “reinforced the idea that there was a significant regional dichotomy between northern and southern segregation,” instead of pointing out the connections between the two. A “custom” did not imply state action. According to Adams, “Marshall’s use of the word ‘custom’…showed just how difficult the road ahead would be for those trying to take down northern segregation.” She maintains that it was the convention’s delegates, with the urban North increasingly represented in the organization as the Black population shifted, who forced the hand of the southern-focused leadership.
Adams may have overinterpreted Marshall’s comment. According to Patricia Sullivan’s history of the NAACP, Lift Every Voice: The
NAACP and the Making of the Civil Rights Movement (2009), “The NAACP’s national office supported an extensive campaign against northern school segregation.” Sullivan added that “in 1947, Marshall publicly announced that the NAACP would devote significant resources to this effort.” Further complicating the picture, however, is Sullivan’s suggestion that what Marshall may have had in mind in those years before Brown was a legal attack on school systems in small northern towns and rural areas that explicitly excluded Black children. In any event, despite the daunting challenge that it posed, the NAACP did support the Detroit lawsuit. Its Detroit branch joined the parents as a plaintiff. Nathaniel R. Jones, the organization’s general counsel and later a federal appeals court judge, was one of the two lawyers who argued for the plaintiffs at the Supreme Court.
The case began inauspiciously in a federal district court where the judge, Stephen Roth, appeared openly hostile. After a pretrial hearing, he described the NAACP lawyers as “outsiders” who should “go away and let Detroit solve its own problems.” Convincing him that state action and not just private choice accounted for the segregation of Detroit’s schools would not be easy. Remarkably, the lawyers succeeded in showing that housing discrimination in Detroit was the result of official policies that had led inevitably to the visible and undeniable segregation of the city’s schools.
At first Judge Roth was impatient and didn’t see the relevance of the housing evidence. He asked the school board’s lawyer to attest to the existence of housing segregation so that the case could move along. The lawyer refused, an error Adams describes as an “own goal” that meant the plaintiffs’ presentation would continue and the judge would get a complete picture of the “containment.” The housing evidence consumed ten trial days, and its effect on the judge’s thinking was “catalytic,” Adams writes. The evidence “was like a tapestry—composed of many invisible threads, which when woven together yielded a striking, unified design.” The picture that emerged was of a set of deliberate actions and policies that showed
a crucial link between the public and the private, between the regulatory authority of the state of Michigan and the seemingly disparate and uncoordinated acts of discrimination undertaken by the real estate industry.
In suing the Detroit school board and the state of Michigan, the plaintiffs had not asked for a remedy that would extend beyond the city limits. The idea of an area-wide remedy entered the case seemingly by happenstance. The judge had allowed a group of white residents, organized as the Citizens Committee for Better Schools, to intervene in the case. In the course of cross-examining a witness from the US Commission on Civil Rights, the group’s lawyer observed that desegregating Detroit’s schools by court order would be “a study in futility” that would simply lead to a “mass exodus of the remaining white citizens into the suburbs.” It was an “‘aha’ moment,” Adams writes, that planted a seed in Judge Roth’s formerly skeptical mind about what would be necessary to achieve actual desegregation.
In his decision on liability, the judge held both the school board and the state responsible for the racial segregation in Detroit’s schools. He fully understood and accepted the plaintiffs’ evidence, noting how the board had gerrymandered district lines and school feeder zones “to contain black students,” adopting the plaintiffs’ unusual use of the word. “The Board’s building upon housing segregation violates the Fourteenth Amendment,” he declared. (The state’s liability largely depended on broad supervisory powers over education that in effect placed it in partnership with local school boards.)
The parties—and the country—had to wait nine months, until June 1972, for Judge Roth to issue the remedy portion of his decision. Limiting the remedy to Detroit could not cure the constitutional violation that had evolved over the preceding decades, he held:
The white population of the city declined and in the suburbs grew; the black population in the city grew, and largely, was contained therein by force of public and private racial discrimination at all levels.
His order established a “desegregation area” covering some 800,000 schoolchildren in Detroit and two suburban counties, Macomb and Oakland. Black and white students were to share the burden of desegregation equally, and faculty and staff were to be integrated as well. Within these general guidelines, Judge Roth left the specifics to a desegregation panel to be established and charged with developing a detailed plan by the following year.
The response to the decision was explosive. Nixon denounced it. Judge Roth, whose family had emigrated from Hungary when he was a child, was derided as un-American. A fight over busing convulsed the Democratic National Convention, held weeks later in Miami. After his antibusing plank was defeated, George Wallace predicted that the Democrats would lose in November.
Amid the uproar, not many noticed a portion of Judge Roth’s remedy that pointed to trouble ahead. The judge noted that he had “taken no proofs” on the question of whether the suburban districts themselves had “committed acts of de jure segregation.” That was hardly surprising; the case had taken a direction the plaintiffs had not anticipated. Verda Bradley, after all, was seeking a better school—in Detroit—for her son. But the absence of such “proofs”—indeed, the absence of particular allegations about the suburbs in the lawsuit’s original complaint—turned out to be fatal. Adams quotes an exchange from the Supreme Court oral argument in February 1974 between Chief Justice Burger and Robert Bork, the solicitor general, who was presenting the Nixon administration’s position that Roth’s order should be overturned. Burger asked Bork to tell him “when, in the course of this litigation, the allegations were made that the outlying districts…had engaged in conduct violative of the Constitution.” Bork responded, “Mr. Chief Justice, it is my understanding that no such allegation had been made to date.”
“This was a vision of the suburban school districts as, in effect, little mini-states,” Adams observes. As often happens at the Court—and happened a generation later in the Parents Involved case—the oral argument was predictive. In his opinion for the Court, issued over a bitter dissent from Justice Marshall, who called the decision “a giant step backwards,” Burger wrote that “there has been no showing that either the State or any of the 85 outlying districts engaged in activity that had a cross-district effect.” Given that absence, he continued, an interdistrict remedy “can be supported only by drastic expansion of the constitutional right itself, an expansion without any support in either constitutional principle or precedent.” The housing evidence, the heart of the plaintiffs’ theory of “containment,” was irrelevant, Burger wrote in a footnote. The Court sent the case back to the lower courts for “prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools.” Stephen Roth would not be the judge to prepare it: two weeks earlier, at the age of sixty-six, he had died of a heart attack.
While Burger relegated the housing evidence to a footnote, Justice Potter Stewart was flagrant in his discounting of it. One of the more overrated justices of the mid-twentieth century, Stewart, named to the Court by President Dwight Eisenhower in 1958, was the only member of the majority not appointed by Nixon. The racial makeup of Detroit’s schools, he wrote in a concurring opinion, was “caused by unknown and perhaps unknowable factors, such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears”—presumably meaning white flight; only these sorts of factors, and not governmental policies, could significantly account for “the ‘growing core of Negro schools,’ a ‘core’ that has grown to include virtually the entire city.”
Adams’s appraisal of Stewart’s opinion is both angry and sorrowful. “As one of our nation’s most important national institutions, the Supreme Court’s view of the past helps construct Americans’ beliefs about what they think actually happened (or didn’t happen),” she writes. In Stewart’s version of events, she continues,
people lived where they did because of private choices and individual preferences…. The unspoken rationale behind Judge Roth’s order was that suburban whites had benefited from generations of public and private racial discrimination; requiring them to participate in a metropolitan desegregation plan was only fair. But in Justice Stewart’s story, the containment never happened. The only problem with Justice Stewart’s story was that it had been conclusively refuted during a forty-one-day trial in Judge Roth’s courtroom in downtown Detroit.
Given the Supreme Court’s makeup and the political environment at the time, could Milliken v. Bradley have turned out differently? Might the lawyers who designed the case have succeeded with a strategy that included the suburban school districts from the beginning, even assuming that the NAACP had the resources to undertake such an ambitious effort? Or was bringing Brown north doomed to fail?
Adams doesn’t directly address these questions, but she does make an important observation about a difference between North and South that is often overlooked. School districts in the South were then and remain now for the most part countywide, while in the North almost every city and town has its own school system and to this day fiercely resists any hint that consolidating even the smallest districts might make good economic and educational sense. The Supreme Court’s decision in Swann v. Charlotte-Mecklenburg Board of Education (1971) showed how metropolitan-area desegregation could work in a southern county. The Court upheld a sweeping integration order, including busing, for Charlotte, North Carolina, and its surroundings, a county school system with 84,000 children in 107 schools. The unanimous decision proved to be perhaps the most successful of the Court’s post-Brown interventions in K–12 education, but the Milliken decision meant that that template could never be replicated in the North.
As Justin Driver noted in The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (2018),3 the Charlotte-area plan was generally well accepted and helped the schools maintain a stable racial composition for nearly three decades. But in 1999 a federal judge lifted the busing order on the ground that the district had achieved “unitary” status. “In short order,” Driver wrote,
Mecklenburg County’s schools reassumed the skewed racial demographics of their surrounding neighborhoods, thus ending a remarkable run of meaningfully integrated schools in metropolitan Charlotte and making the region one small part of the broader phenomenon that has been labeled “the resegregation” of American education.
It was an effort by two cities to avoid resegregation that led to the 2007 Parents Involved decision. Both Louisville, once segregated by law, and Seattle, suffering the effects of extreme residential segregation, had managed to achieve a measure of integration and had adopted modest limits on student assignments to avoid tipping individual schools to one race or another. Two federal appeals courts had found the plans constitutionally acceptable.
Michelle Adams and I have never met, but I learned from the opening pages of her book that we had both been at the Supreme Court on December 4, 2006, to hear the argument in Parents Involved. It was not hard to see where the Court was heading. My account for The New York Times began:
By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional.
I thought I saw a door closing. The Containment shows that the door had closed long before.
English (US) · 