The Danger of Judicial Policymaking: The Case of the Boston Busing Crisis

Over 70 years have passed since the decision in Brown v. Board of Education, which ruled segregation and the “separate-but-equal” doctrine as unconstitutional [1]. In the following year, the Supreme Court released another decision focused on implementing the Brown v. Board ruling, which pressured local Southern areas to desegregate “with all deliberate speed” [2]. While the North was not the focus of desegregation efforts, attempts to address the city’s racial imbalance in schools resulted in intense conflict and division [3]. In 1974, a group of Black parents brought a case against Boston Public Schools—Tallulah Morgan et al., Plaintiffs, V. James W. Hennigan et al., Defendants—accusing the school district and committee of maintaining de facto segregation [4]. The U.S. District Court for the District of Massachusetts ordered Boston Public Schools to desegregate through various programs, including a busing program that reassigned students to schools around the city [5]. The aftermath was heightened racial tensions and conflicts, with mass protests of the busing efforts and other changes [6]. Decades later, after massive White flight to Boston suburbs, Boston Public Schools went from majority White students to 85% students of color today [7]. The decision to order Boston Public Schools to desegregate was within the court’s bounds, but the specificity and enforcement of the following orders were an overstep that violated the extent of judicial power.

Despite the lack of explicit state or school policy requiring the segregation of students, the District Court’s evaluation of segregated schools and order to desegregate were within the court’s bounds based on court precedent. Firstly, the historic Supreme Court case Brown v. Board of Education set precedent for classifying state-mandated segregation of schools as unconstitutional, as well as the judiciary’s ability to order desegregation of aforementioned schools [8]. While this case alone appears to give the judiciary just enough power to address legally-mandated de jure segregation, following cases explore the bounds of non-mandated de facto segregation. Keyes v. School Dist. No. 1 (1973), the school district of Denver, Colorado, was sued for promoting de facto segregation, although it argued that the lack of explicit laws rendered the school district innocent [9]. In concurring opinions, Justice Douglas and Justice Powell agreed that in cases regarding schools and the Equal Protection Clause of the Fourteenth Amendment, there is “no difference between de facto and de jure segregation” [10]. This expands court jurisdiction around segregation, as it includes de facto segregation that does not stem from explicit laws mandating segregation. This expansion affirms the Massachusetts District Court’s decision to both recognize Boston Public Schools as segregated in nature and order their desegregation.

Additionally, the case Swann v. Charlotte-Mecklenburg Board of Education (1971) supports the decision of the Boston case, as the Supreme Court ruled that when schools can be identified as a “White school” or “Black school,” based on teacher demographics, facility quality, or extracurricular activities, this was enough evidence for a prima facie case—evidence strong enough to require a defense—for a violation of the Equal Protection Clause of the 14th Amendment [11]. In the Boston Public Schools’ case, schools with predominantly minority enrollment had poor quality facilities and fewer resources than predominantly White schools [12]. This allowed the plaintiffs leeway in asserting school segregation, as an official state statute is not required to prove segregation. While the precedent from Brown v. Board addressed court authority to order desegregation based on state laws requiring segregation, this case in Keyes v. School Dist. No. 1 gave the precedent for evaluating de facto segregation in schools.

Among the court’s following orders for Boston Public Schools, the court’s decision to implement a busing program was within its bounds. Firstly, the decision in Swann v. Charlotte-Mecklenburg established precedent in the courts’ ability to order desegregation [13]. The Supreme Court ruled that within a “dual system” of schooling, the responsibilities of the school authorities when integrating schools may include transportation [14]. The Supreme Court affirmed the ability to order busing programs to desegregate school districts. However, the decision was against establishing explicit guidelines on the extent of busing permitted, as every district’s situation varied [15]. From this court precedent, busing can be used as a tool for desegregation, but local implementation of the tool should take the conditions of the community into account. In the case of Morgan v. Hennigan, the busing plan was created by the the Massachusetts Board of Education based on data of overcrowded schools in Boston and had different applications for varying grade levels [16]. Since the decision in Morgan v. Hennigan was based on planning and data from the Massachusetts Department of Education, the ordered busing plan was intended to address the specific conditions of Boston, making it a permissible court-ordered action.

However, the District Court’s following orders, ranging from hiring practices to school facilities, overinserted the court into policy-making. In the case Swann v. Charlotte-Mecklenburg, the Supreme Court concluded that school authorities are responsible for implementing integration changes relating to transportation, facility maintenance, resource distribution, extracurriculars, and staff [17]. In Morgan v. Hennigan, however, the District Court rejected plans created in part by the Boston Public Schools regarding proposed school closures and mergers, as well as a stabilizing plan for student assignment in the wake of school closures, citing that they were “substantial changes in the extant Court orders” [18]. This decision to reject outlines from school authorities goes against the decision in Swann v. Charlotte-Mecklenburg, which gave responsibility and goals on “produc[ing] schools of like quality, facilities, and staffs” to school authorities, but did not take on an overseeing role in the final development and implementation of the integration plan [19]. The District Court in Morgan v. Hennison was deeply involved with the integration plan for Boston Public Schools. While there was involvement from the school committee and the Massachusetts Department of Education in developing the plan, the court ultimately decided what should be implemented, discarding programs proposed to assist the transition and outlining directives on faculty hiring and school closures [20]. This kind of control over the district’s reform put the court as the final enforcer and editor of policy, not local legislative powers or school authorities and stakeholders. While the court can evaluate policies and their constitutionality, the Boston Public Schools should not have had to rely on the court’s approval to even create and implement a plan for integration.

This case is a primary example and warning for future desegregation efforts and court orders as a whole. The role of the courts is to be an impartial evaluator, not a policymaker; the function of judicial review grants the power to evaluate executive and legislative action, but in the case of actual policymaking and reform, relevant legislative bodies and local authority and stakeholders have power [21]. In the case of de facto segregation, where there is no specific law-mandated segregationist policy to be overturned, court orders for desegregation are critical, but the new local and systemic policies should be decided by the legislators, and therefore, by the people. When the judiciary extends its reach into specifying what governments and other institutional bodies should do, rather than evaluating their independently developed policy, the tenet of separation of powers is broken. The court can be the push to enact change, but the change itself must come from the people.

Works Cited

[1] National Archives, “Brown v. Board of Education (1954),” National Archives (The U.S. National Archives and Records Administration, March 18, 2024), https://www.archives.gov/milestone-documents/brown-v-board-of-education. [2] Oyez, “Brown v. Board of Education of Topeka (2),” 2019, https://www.oyez.org/cases/1940-1955/349us294. [3] J. Anthony Lukas, Common Ground (Vintage, 2012). [4] National Archives, “Morgan v. Hennigan Segregation Complaint,” National Archives, January 19, 2024, https://www.archives.gov/boston/highlights/morgan-v-hennigan. [5] Emily Piper-Vallillo, “How School Segregation Survived Boston’s Busing | WBUR News,” Wbur.org (WBUR, June 19, 2024), https://www.wbur.org/news/2024/06/19/school-segregation-remains-boston-busing. [6] Emily Piper-Vallillo, “How School Segregation Survived Boston’s Busing | WBUR News,” Wbur.org (WBUR, June 19, 2024), https://www.wbur.org/news/2024/06/19/school-segregation-remains-boston-busing. [7] Christina Pazzanese, “Boston Busing in 1974 Was about Race. Now the Issue Is Class.,” Harvard Gazette, June 18, 2024, https://news.harvard.edu/gazette/story/2024/06/school-reform-expert-on-50-year-legacy-of-boston-busing. [8] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). [9] Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973). [10] Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973). [11] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) [12] Boston National Historical Park and Boston African American National Historic Site, “Black Education Movement in the 20th Century (U.S. National Park Service),” Nps.gov, 2022, https://www.nps.gov/articles/000/black-education-movement-in-the-20th-century.htm. [13] Oyez, “Brown v. Board of Education of Topeka,” Oyez, 1954, https://www.oyez.org/cases/1940-1955/347us483. [14] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). [15] Oyez, “Swann v. Charlotte-Mecklenburg Board of Education,” Oyez, 2019, https://www.oyez.org/cases/1970/281.; Justica, “Swann v. Charlotte-Mecklenburg Bd. Of Educ., 402 U.S. 1 (1971),” Justia Law, n.d., https://supreme.justia.com/cases/federal/us/402/1/. [16] Justica, Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass. 1974) [17] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) [18] CourtListener, “Tallulah Morgan v. John McDonough Boston Home and School Association, Intervenor, Tallulah Morgan v. John J. McDonough: Court of Appeals for the First Circuit, 689 F.2d 265, 1982 U.S. App.,” https://www.courtlistener.com/opinion/409208/tallulah-morgan-v-john-mcdonough-boston-home-and-school-association/. [19] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) [20] CourtListener, “Tallulah Morgan v. John McDonough Boston Home and School Association, Intervenor, Tallulah Morgan v. John J. McDonough: Court of Appeals for the First Circuit, 689 F.2d 265, 1982 U.S. App.,” https://www.courtlistener.com/opinion/409208/tallulah-morgan-v-john-mcdonough-boston-home-and-school-association/. [21] U.S. Const. art. III, § 2, cl. 1