White didn't like losing Powells' vote, much less the majority, but it was unlikely that Powell would switch again. For all his competitiveness, White played by the rules, and he wanted to find some humorous way of letting Powell know that he was not angry.
Several days earlier, White had been watching a baseball game on television. The Baltimore Orioles' rookie outfielder Al Bumbry, the potentially winning run, had been thrown out at home plate in a heartbreaking play.
Knowing that Powell followed baseball and liked to go to Orioles games in nearby Baltimore, White sent a memo to Powell saying that he felt like Bumbry. He had made his way around all of the bases, only to be thrown out at home plate.
White loved Denver. He had practiced law in the "Mile-High City" for nearly fifteen years. It was a city of relative racial harmony when White lived there, but recently it had become a school des
e
gregation battleground. "Showdown in Denver," a
Wall Street Journal
headline proclaimed. The Denver school desegregation case
(Keyes
v.
School District No.
1
)
was about to become the
Brown
case for the rest of the country outside the South.
White was not sure whether he should participate. His old law firm in Denver had once been the bond counsel for the school board. Sitting at his desk, idly mutilating paper clips and twirling them in his fingers, he told his clerks of his concerns. White normally withdrew from cases where there was any question of his impartiality. But he had been away from Denver for thirteen years, returning there only to vacation. "When can I start sitting again on these cases?" he asked rhetorically.
He wanted to participate. What's more, Rehnquist had recently argued that some of the Justices were overdoing disqualification By recusing themselves whenever there seemed to be the slightest possibility of a conflict, Rehnquist contended, Justices were avoiding their responsibility to decide cases. Disqualifications that were likely to leave the Court in a 4-to-4 deadlock should be avoided if possible. In such ties, he noted, the "principle of law presented by the case is left unsettled."*
*
Various liberal groups had criticized Rehnquist for taking part in three cases the previous term, since he had had some contact with the cases while at the Justice Department One case
[Laird v. Tatum)
involved Army surveillance of antiwar groups. While at the Justice Department, Rehnquist had testified before a congressional committee on the exact issue on which the case was decided. He had told a congressional panel he did not think the antiwar activists had standing to bring suits. Then, as a Justice, he had cast the deciding vote against them. Rehnquist subsequently took the unusual step of publishing a memo justifying his participation.
This argument interested White. His vote might be the key to the outcome. If he disqualified himself, it was quite possible that Powell and Rehnquist would join Burger and Blackmun in opposing the busing order in Denver. The Court would split
4
to
4.
White decided to leave the question of his participation in the air, and he went to oral argument on October
12.
He would ask no questions, and he could always disqualify himself later.
Unlike the South, Colorado had no history of legislated school segregation. So the black parents first had to prove that the Denver school board was responsible for separating school children by race. Then they could argue that such unconstitutional school board actions required desegregation orders.
In
a
series of hearings in district court, the black parents had shown that the school board had made decisions that promoted segregation—building new schools in minority neighborhoods to accommodate the size of the minority group; changing attendance boundaries to make sure the schools stayed segregated; refusing to build schools in locations that would serve minorities and whites together. District Judge William Doyle agreed with the black parents that
a
small, racially mixed area of Denver called Park Hill, which included only eight of the city's
119
schools, was segregated by school board actions. He ordered the busing of
4,000
pupils,
a
small fraction of the
90,000
children in the system.
In the larger, "core city" area of Denver, Judge Doyle found that, while there were no clearly deliberate acts of racial discrimination (such as the gerrymandering of attendance zones), the twenty-five schools there were still segregated. The students, mostly black and chicano, were receiving an inferior education, he found. Test scores were lower, teachers less experienced, dropout rates higher, school facilities inferior. The treatment that core-city students were receiving was separate and unequal. The separation might be legal, but the inequality was not.
So Doyle also ordered desegregation and improvement of education in core-city schools, and he ordered that another
7,000
students be bused, bringing the total to
11,000.
Under Doyle's orders, most one-race schools would be di
crim
inated. There would be some racial mixing in every school, though there would not by any means be a strict racial balance.
The Tenth Circuit Court of Appeals upheld Doyle's order for the smaller Park Hill area, but reversed him on the core-city schools. It pointed out that since the black parents had failed to show that segregation there was the clear result of any school board actions, Doyle had no power to order any remedy for the core-city schools.
The black parents, saying all schools should be desegregated, appealed to the Supreme Court.
At the conference, White took himself out of the case, and the others voted
5
to
3
in favor of the black parents, the majority consisting of Douglas, Brennan, Marshall, Stewart and a very tentative Blackmun. Blackmun said he would go along only if the opinion relied exclusively on prior decisions. And he would not go along with anything that said district judges could reach out and desegregate every school that happened to be segregated.
In particular, Blackmun did not want to go beyond the Charlotte case. He rejected Douglas's view that judges could desegregate schools regardless of the cause of the segregation. School boards must first be proved responsible for causing some of the segregation; then, and only then, was he willing to let judges correct the situation.
Douglas assigned the opinion to Brennan. The assignment lifted Brennan's spirits considerably. It was the best case he had been given since Earl Warren's retirement more than three years before. He was not unmindful of the delicacy of the task. If Blackmun switched, the
5
-to
-3
majority would become a
4
-to
-4
deadlock, leaving the appeals court's limitations on busing intact. That would be no opinion, and thus, no law would be decided. It would be impossible for a federal judge to order system-wide desegregation without proving intentional illegal state action that affected each school. Brennan certainly did not want district judges to get
that
message. It would halt desegregation efforts in cities outside the South, until the Court could find another case in which White could participate.
Brennan worked out a first draft. Taking the school system as a whole, rather than considering separate areas as Doyle had done, Brennan held that the Park Hill segregation was sufficient to declare the entire system segregated and order desegregation in every school.
Brennan took particular pleasure in relying principally on the Chief's Charlotte decision for his law. He drew especially on a long section that Marshall had insisted the Chief include two terms before. It dealt with the impact that school board decisions on the location or closing of schools had in promoting segregated neighborhoods.
By December, Brennan had sent a draft to the other Justices. The Denver school system had intentionally violated rights. For all legal purposes, it should be considered a dual school system with the obligation to desegregate every school at once.
Douglas, Marshall and Stewart indicated they would join Brennan.
Burger and Rehnquist said they would dissent. Powell, the third dissenter, said that he wanted to write his own opinion. He was particularly offended by the moralistic tone of the Brennan draft, which, he felt, extended the harsh judgment made on the South to the North.
There was no word from Blackmun.
Brennan finally sent his clerks out to see what they could learn from Blackmun's clerks.
Nothing.
Despite his decision not to take part, White was following the developments closely. One day, as White and Blackmun were talking, the case came up. Brennan's draft, Blackmun said, went way beyond what was necessary. He had reviewed the facts. Several things were beyond dispute. The district judge had found that the black parents had failed to prove that the school authorities had done anything intentionally to segregate the core-city schools. Brennan's draft ordered a remedy in these schools despite a contrary finding of fact. Maybe the actions that pertained to the Park Hill schools were isolated. Brennan was adopting a kind of domino theory. A single act in one part of town did not justify system-wide desegregation orders. Blackmun said he could not join such a sweeping proclamation.
White mentioned Blackmun's objections to one of his own clerks, who in turn passed them on to one of Brennan's.
Wi
thin
hours, Brennan had an account.
When the opportunity arose, Brennan asked White directly what he should do to win over Blackmun.
White told Brennan his draft went too far. He suggested toning down the sweeping language. "But don't make any changes on my account," White said. He reminded Brennan that he was, after all, out of the case.
Brennan went back to work. He softened his rhetoric and tried to spell out his reasoning so that Blackmun could see that its logic was dictated by common sense. Brennan emphasized that the constitutional violations were not isolated in one school, but were "systematic" and "substantial." He noted that there were five thousand blacks in the Park Hill schools, where deliberate segregation had been proved. They represented nearly
38
percent of Denver's total black school population. Common sense dictated that the racially discriminatory acts of the school board had an impact beyond those schools. These acts had a ripple effect. Manipulation of attendance patterns in one group of schools clearly affected other schools.
Brennan cited one of the basic evidence texts
(Wigmore on Evidence)
which said that prior patterns of behavior can be used in measuring intent. The intentional segregation in Park Hill would establish a presumption that segregation in the core city stemmed from the same illegal intent. It was only a presumption, Brennan wrote. The school board would have a chance to challenge it, since his opinion, if it were the majority, would send the case back to the lower court to be tried again.
This time, with the burden of proof shifted, the black parents wouldn't have to prove that the board intended to segregate the core-city schools. The board would have to prove that it had nothing to do with the acknowledged segregation in the core city's schools. Shifting the burden, Brennan emphasized, was not a novel idea. His treatment of this Northern case was fully in line with, and just a logical extension of, the Court's prior rulings in Southern cases. It would make things more difficult for the school board, but it would give them another chance. And the school board could try again to prove that Park Hill was for practical purposes a separate area—a crucial point assumed, but never really decided, by the lower court. But Brennan also added a set of criteria making it difficult to prove. He circulated his revised draft.
Douglas, Stewart and Marshall were still willing to join. Blackmun was still thinking it over.
» » *
Powell's dissent in the Denver case gave him a chance to express himself on what he viewed as the major issue of the day. He decided to write his own opinion in order to elaborate views that he had developed during many years of service on school boards. Years of law practice and public service had left him with fundamental views on successful management. If society was to be well run,' its own leaders must themselves do a good job. Outsiders, especially courts, could not force anyone to do a good job. No matter how correct, they inspired resentment rather than cooperation. The courts could only outline what decision makers should consider.
Powell believed that most people were well-intentioned, and the courts should capitalize on this good will. The courts had to rely on, rather than undermine, the best instincts of people. The courts should try only to regulate the extremes of behavior.
Powell sat at his desk, Dictaphone in hand, and dictated dozens and dozens of pages. It was more an essay than
a
Supreme Court opinion, his clerks thought.