Reflections on Brown to Understand Milliken V. Bradley

Ever since 1954, the Supreme Court has been recognized as a champion of civil rights, marked in particular by Brown v. Board of Education of Topeka, which overturned the segregationist decree of “separate but equal” of the 1896 decision Plessy v. Ferguson. But what many do not realize is that Brown was not the end of the road, but simply a milestone. Cases following Brown initially expanded its reach; Griffin v. County School Board (1964) stopped Virginia from providing private school vouchers instead of operating public schools, Green v.

County School Board (1968) declared a “freedom of choice” plan an unacceptable desegregation method, acknowledging that purely removing legal barriers would not ensure desegregation, and Swann v. Charlotte Mecklenburg Board of Education (1971) approved a busing plan while holding that district courts could have great freedom to draw out plans with the goal of effective desegregation.

Wright v. Council of City of Emporia (1972) told districts to acknowledge white flight and Keyes v. School District No.1 (1973) explained that discrimination specific to one part of the district affects the rest of it. But only two years later came Millikin v. Bradley (1974), a case which stopped the momentum of desegregation case law in its tracks. The 1974 case is held by many to be so detrimental as to be considered one of the worst cases in Court history, as dooming as infamous cases such as Dred Scott and Korematsu. Millikin dealt with the issue of an intra-state segregation plan in Detroit, one which involved the restructuring of school districts to desegregate the overwhelmingly African-American city core surrounded by white suburbia. A 5-4 majority struck down the plan drawn up by the District Court and affirmed by the Court of Appeals. They argued that qualifications which should be necessary for intra-state segregation plans were not met. In reality, this limited the abilities of cities everywhere to desegregate. And looking around a modern public school classroom, one almost never sees the diverse and integrated classroom that Brown idealized. With more and more conservative educational decisions, the hope of progress Brown provided seems to fade. Milliken v. Bradley was a terrible decision because it ran contradictory to the doctrinal goal of educational equity the Court itself had previously promised, and because its legacy is an important factor to the extreme level of desegregation the country still faces today.

Conflict over how to desegregate was not unique to Detroit. Various plans had been drawn up to desegregate Detroit, but the District Court had rejected three previous plans as they would not effectively produce desegregation. Instead, a plan was drawn up which would encompass Detroit and 85 outlying school districts, consolidating 54 of them. It had already been found that there had been racial segregation by the state of Michigan. The plan was meant to address the city of Detroit, but would involve bussing and new attendance zones, and was once again approved by the Court of Appeals. At issue with the Supreme Court was the authority to create a metropolitan plan in order to desegregate Detroit. This plan was quite similar to past desegregation efforts; only a year earlier Swann had encouraged exercise of the “flexible” desegregation powers and approved a plan relying on bussing. What had changed was politics. The majority bloc in Millikin was made up of Justices Warren Earl Burger, Potter Stewart, Harry Andrew Blackmun, Lewis Franklin Powell, Jr,, and William Hubbs Rehnquist. Notably, four out of five of those Justices had been appointed by conservative President Nixon. President Nixon was known to be anti-integration, and even “made his disappointment with Swann clear to the Chief Justice.” This is notable as many attribute the ebbing and flowing of the Court’s civil rights cases to more conservative Justices and public political will.

In order to get to this anti-integration ruling, the majority opinion was built on faulty logic. The majority opinion, written by Chief Justice Burger emphasized local control of education, writing that, “no single tradition in public education is more deeply rooted than local control over the operation of schools,” emphasizing the importance of school district lines and the authority of local boards to rule over them, which would be overriden by redrawing attendance zones. This contradicts Brown, where education was described as important not because of who controls it, although it is important to note that Brown attributed state and local governments as responsible, but because it is a “right,” creating a “democratic society.” Justice Burger’s point further confuses federalism, as in our system states have always held power over cities, and further, issues of the 14th Amendment, which is notably directed at states not local entities, are more powerful than enforcing federalism itself.

And as Justice White pointed out in his dissent, boards and political subdivisions only exist under state domain, as noted in Reynolds v. Sims (1964), thus by switching up districts no one’s authority is being revoked. He also noted that under Swann, the very same precedent which the majority had pointed to, had given district courts broad breadth to format solutions for desegregation. Under Wright you can further make a new school district, in fact, Justice Marshall would point out that in the past there had been over 1,000 such consolidations already. And Brown II itself allowed for “revision of school districts and attendance areas into compact units,” fitting into this history of broad discretion. And Millikin was not permanently reshaping this conception of local control either, as legislator Myron Orfield has written, “in all other contexts [the Court] continued to classify these same local governments as state administrative conveniences or, in the words of Justice Rehnquist, mere “governmental techniques.” Instead, Justice Burger temporarily re-imagined the purpose of local government to fit his needs.

The majority opinion also emphasized supposed logistical and financial difficulties of a new system, complaining about what new boards would have to be drawn and how they would function. These logistical complaints make little sense. For example, the metropolitan plan was estimated to only require purchase of 350 new buses as opposed to the solely Detroit plan, which would require the purchase of 900 new buses. Further, as Justice Marshall writes, “the inconvenience of some cannot be allowed to stand in the way of the rights of others,” for, “Desegregation is not and was never expected to be an easy task.” But it was one the Court has held as a critical mission for the country since Brown, and it seems absurd to write off those goals for the very same logistical and financial complications courts have had to address with any sort of rezoning or desegregation plan throughout history.

Justice Burger wrote that the metropolitan plan wanted every school to consider racial balancing to reflect the entire metropolitan area, even though racial balancing was deemed unacceptable in Swann v. Charlotte Mecklenburg Board of Education. But in his dissent, Justice Marshall pointed out that the majority had confused an emphasis on racial balancing, explaining that it was in no way the primary goal of the District Court, for one of the three initial Detroit plans had been rejected because it was purely about racial balancing. Further, this is an inaccurate articulation of Swann, which, as part of its focus on district flexibility, said approaches to desegregation could use ratios or similar mathematical methods as part of their plans, just as a “starting point.”

Justice Burger set three requirements for an appropriate interdistrict remedy, arguing that none were met: first that the suburbs must have engaged in unconstitutional discrimination; second that segregation in Detroit must have affected segregation in the suburbs; and third that Michigan must have engaged in purposeful racial redistricting. These qualifications are impractical. State discrimination was an accepted fact in the case, but the majority wanted segregation by suburbs themselves. But since so few black students existed in the suburbs, suburban districts did not need additional discriminatory policies to have a segregated system. And there was evidence of racial prejudice in the suburbs, the mayor of Dearborn had been quoted saying that, “Every time we hear of a Negro moving…in, we respond quicker than you do to a fire.” But on top of all of that, the simple fact is there was proven discrimination by the state, and “It doesn’t make sense to require proof of two independent equal protection violations as predicate for getting relief for one.”

Justice Stewart wrote a concurrence which argued that the remedy here was on a far larger scale than the problem, which was limited to Detroit. In essence the concurrence deemed de facto segregation not under constitutional purview, an assertion which would contribute to later case law. De jure segregation is segregation by law, whereas de facto segregation is “by fact.” This, once again, is highly contradictory to Swann, which emphasized the “effectiveness” of desegregation plans as critical to their legality. If one cannot regulate de facto segregation, you can only regulate discrimination with legal intent. One can have “accomplished desegregation” even when deep inequities still exist in result, as long as local boards are well-meaning. This implies that “Good faith, not good works, was all that mattered.”

The problems with Millikin can be summarized by the reality that the case breaks with the goals of “separate versus equal.” The majority opinion itself states that, “Ever since Brown v. Board of Education, 347 U.S. 483 (1954), judicial consideration of school segregation cases has begun with the standard: ‘[I]n the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.’” But Millikin is considered to have been a step back and an abandonment of those ideals. Within the first few paragraphs of his dissent, Justice Marshall writes that, “After 20 years of small, often difficult steps towards that great end [desegregation], the Court today takes a step backwards.” White flight in Detroit had marked the years leading up to Millikin, and followed beyond the case, as the decision gave white families an easy way to avoid desegregation, knowing their suburban insulation would not be disturbed by the Courts.

But it is inarguable that things are still separate in Detroit. In 1960, 46% of Detroit students were black and 54% were white. In 1970, 64% of Detroit students were black and 36% were white. By the early 2000s, 89.5% of Detroit students were minorities. This is opposed to surrounding suburbs, where the percentage of minority students often ranges from 5-15%. With such a difference in the racial makeup between the core of urban Detroit and surrounding suburbs, there is mathematically no way to create real diversity without crossing boundaries. But this is not just Detroit. Over last decade, studies, such as a 2009 one by Harvard Professor Gary Orfield, have found that segregation in schools is rising. For example in this study it was found that in Chicago, 87% of public school enrollment was black or hispanic while less than 10 percent of students were white. Countless major cities including St. Louis, Philadelphia, Cleveland, Los Angeles, and Baltimore replicate these statistics with striking similarities. With cities insulating minorities, the goals of Brown are far from upheld.

Part of the reason a Detroit-only solution is so ineffective is due to the cyclical nature of low funding of schools in urban areas. Due to a history of white flight to the suburbs, cities like Detroit are left with a largely minority population. Detroit is a mostly African-American city and due to historical conditions, this means it is and was at the time of Millikan poorer than majority white areas, particularly surrounding suburbs. And, “Because of municipal overburden, cities on the average devote only about 30% of their budgets to schools. This compares with the over 50% which is spent on schools by the suburbs.” Property taxes mean that schools in wealthier neighborhoods are better funded, so white suburban schools have more money than low-income urban and even suburban counterparts. Thus this cycle of poverty creates schools that are inherently unequal. In these high poverty areas one identifies lower test scores, less high school graduates, and lower college attendance. If Millikan had been decided differently, there would have been opportunity to integrate the resources of wealthier suburban neighborhoods. But, instead, resources stay isolated to their areas. In Detroit and in other similar urban areas, schools are seperate, and unequal.

And the effects of Millikin simply affirm its breakage from the Court’s promise of desegregation. In Detroit specifically, comparing city to suburban school districts, the gaps in demographics and achievement are astounding. Highland is a school district in Detroit, in 2006 it was 96% minority, with a 23.9% graduation rate and a 30.4% drop out rate. Grosse Pointe is a nearby suburb. It is 6.8% minority, with a 95.1% graduation rate and a 1.2% drop out rate. It is notable that Highland and Grosse Pointe are very different areas socioeconomically. But segregation has always involved the intersection of race and class, because of historical conditions economically oppressing minority groups. Because of Millikin, desegregation efforts could never involve an integration of students or resources between Highland and Grosse Pointe, or the countless other neighboring areas. Instead of sharing the wealth of suburban areas, Highland can only be integrated or considered next to neighboring schools which share its same obstacles.

A year before Millikin, San Antonio Independent School District v. Rodriguez (1973) had held that disparite school funding had not violated the Equal Protection Clause as education was deemed not a fundamental right. Despite the clear intersection of race and class that examples of education inequity between places such as Highland and Grosse Pointe show, cases like Millikin and San Antonio ignored their connection. These decisions created precedent for later cases that would continue to limit the path to desegregation such as Board of Education of Oklahoma City Public Schools v. Dowell, Freeman v. Pitts, and Missouri v. Jenkins, which directly relied on the arguments of Millikin to reject magnet schools, which might attract suburban students to cities, as a tool of desegregation. Cities and district courts around the country followed the path of Millikin, the problems of Detroit mimicked across the country to this day.

Forty years after Millikin, the country is left with a far more limited tool set to accomplish desegregation. Some propose voucher systems, sanctions dealing with test benchmarking, and affirmative action as tools towards educational equity. Detroit followed Millikin by implementing various educational programs, magnet schools, and vocational education centers. Huge creativity in plans is required, such as the Kalamazoo Promise, which guaranteed students who met certain standards admission to one of Michigan’s various state universities. But these are all just steps, as old problems continue to exist, new ones arise. For example with the resurrection of cities, many poor segregated suburbs are forming. But for the most part, it is up to the political will of the American people to right the wrongs of desegregation. Public opinion shaped Millikin itself, for “the conservative justices could not have foisted such a regressive racial jurisprudence on the American people without their acquiescence.” And the debate over desegregation is still going. In New York City, a 2017 citywide diversity plan was released, while conflict has raged over the past year about Mayor Bill de Blasio’s proposal to change the SHSAT in an effort to change the disproportionate exclusion of African American and Latino students from specialized high schools.

Overall, Millikin is a terrible decision because it stands against precedent, against the rights decreed in Brown, and expanded in cases like Swann, and because it has contributed to segregation inherent to even modern politics. But, there is still opportunity for change and to desegregate a nation built on a history of oppression. One cannot help but imagine how much further the nation could have progressed if Millikin had been decided on different grounds. “Our Nation, I fear, will be ill-served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together,” wrote Justice Marshall. And his prophetic dissent lies as true today as it did over 40 years prior.

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