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Not one judge's opinion: Morgan v. Hennigan and
the Boston Schools
Roger I. Abrams
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Not One Judge's Opinion:
Morgan v. Hennigan
and the Boston Schools
R O G E R I. A B R A M S
Case Western Reserve
University
For twenty years, since Brown v. Board of Education, thefederal courts have consistently
upheld the right of black children to attend a nondiscriminatory school system, and the Boston
School decision, Morgan v. Hennigan, hasfollowed in that tradition. However, the violent
and visceralreaction to the decision has raised the question whether the law will withstand the
pressure to turn away from our national commitment to an integrated society. The Boston
School decision, therefore, portends to be a watershed in the development of our national
commitment to equality under the law. In this article, Professor Abrams, who was one of the
plaintiffs' counsel in the litigation, examines thefactual and legal bases of thefederal district
court's opinion.
On June 21, 1974, Judge W. Arthur Garrity of the Boston Federal District Court
ordered the Boston School Committee to desegregate the Boston schools.1 The
long-term implications of this ruling for the kind of education black and white
1
Morgan v. Hennigan, 379 F. Supp. 410 (D.Mass. 1974). Subsequent to its decision on Constitutional liability, the court substituted as first-named defendant the present Chairman of the School
Committee, John J. Kerrigan, for the prior Chairman, James W. Hennigan, who no longer serves on
the Committee. Further court activity in the remedial stage of the suit therefore proceeds under the
name Morgan v. Kerrigan, C.A. No. 72-911-G. This paper was drafted prior to the announcement of
the circuit court opinion on the appeal brought by the School Committee, but after Boston had
suffered an extended period of disorder arising out of the first stage of desegregation of its schools.
Harvard Educational Review
Vol.45
No. 1 February 1975
5
students receive from their public school system and, indeed, the way we as a
people think about ourselves, our fellows and our national purpose, are as yet
untold. The short-term results of the decision, which are disturbing if not unexpected, can be read on the front pages of the newspapers of the world. The
process of understanding requires that the reasons for the decision and the
underlying facts upon which it is based be known. To that end, this brief paper is to
serve as an introduction to the court's opinion.
To begin, certain misconceptions about the case must be disabused. There was
no question that the Boston schools were segregated, and in fact the issue was
virtually uncontested during the trial. 2 As of the 1971-1972 school year, almost 85
percent of the approximately 60,000 white students enrolled in the system were
assigned to schools over 80 percent white; over 60 percent of the approximately
30,000 black students were assigned to schools over 70 percent black. "Racial
segregation permeates schools in all areas of the city, all grade levels, and all types
of schools." 3
The central judicial inquiry was how the schools came to be that way and how
they were kept that way. The court found that school segregation in Boston was
not the fortuitous or adventitious result of a neighborhood school policy and
segregated housing patterns, but rather was the foreseeable and intended result
of deliberate, conscious, purposeful policies and practices of the Boston School
Committee. The ostensibly racially neutral neighborhood school policy, "so selective as hardly to have amounted to a policy at all,"4 was maintained only so long as
it was a convenient segregatory strategy. 5
A second misconception is that somehow the court's decision was a unique
exercise in judicial adventurism. On the contrary, the decision in Boston was the
latest in a long series of federal court rulings censoring deliberate governmental
acts taken to segregate northern public schools, decisions which have mandated
redress for de jure segregation in Topeka, New Rochelle, Washington, South
Holland, Pasadena, Detroit, Pontiac, Las Vegas, Minneapolis, Indianapolis,
Kalamazoo, Brooklyn, Dayton and other cities.6 The Supreme Court in Keyes v.
School Dist. No. I, Denver, Colorado7 definitively set the specifications for judicial
2
379 F.Supp. at 478.
379 F. Supp. at 424.
* 379 F. Supp. at 473.
5
379 F. Supp. at 476.
8
Brown v. Board of Educ. of Topeka, Kansas, 347 U.S. 438 (1954); Taylor v. Bd. of Educ. of New
Rochelle, 294 F. 2d 36 (2 Cir. 1961), cert, denied, 368 U.S. 940; Smuck v. Hobson, 408 F. 2d 175 (D.C.
Cir. 1969); United States v. School Dist. 151, 432 F.2d 1147 (7 Cir. 1970), cert, denied, 402 U.S. 943;
Spangler v. Pasadena City Bd. of Educ., 311 F.Supp. 501 (C.D.Calif. 1970); Bradley v. Milliken, 484 F.
2d 215 (6 Cir. 1973), finding of segregation upheld, 94 S.Ct. 3112 (1974); Davis v. School Dist. of
3
6
Not one Judge's Opinion
ROGER I. ABRAMS
scrutiny of northern school systems that were alleged to be segregated by governmental policy and practices. The Keyes court emphasized that a finding of
purpose or intent to segregate differentiated "adventitious de facto segregation"
from unconstitutional "de jure segregation." Moreover, in addition to examining
the racial composition of the schools of the system, a court should look to faculty
and staff policies, school site location, school assignment policies, and other school
board acts and practices in order to determine whether a governmental body has
purposefully created or perpetuated a dual school system.8 The Boston court
followed the Keyes blueprint 9 to the court's ultimate legal conclusion that the
Boston schools were segregated de jure. Based as it was on over 1,000 exhibits and 30 witnesses and a strong body of controlling precedent, this decision
was not merely one judge's opinion. 10
While it is convenient to analyze the court's decision in segments, and I shall so
proceed, it must be remembered that the full import of the School Committee's
actions can only be appreciated by the reader in the aggregate. The various
strategies employed by the School Committee—student assignments, feeder patterns, open enrollment, utilization of facilities, use of portables, construction of
new schools, busing to segregate and faculty discrimination in hiring, assignment
and promotion—are intertwined in "a systematic program of segregation." 11 Such
a program, the court found, evidenced de jure segregation. 12
Pontiac, 443 F. 2d 573 (6 Cir. 1971); Kelly v. Guinn, 456 F. 2d 100 (9 Cir. 1972), cert, denied, 413 U.S.
919; Booker v. Special School Dist. No. 1, Minneapolis, 351 F. Supp. 799 (D. Minn. 1972); United
States v. Bd. of School Comm'rs of Indianapolis, 474 F. 2d 81 (7 Cir. 1973), cert, denied, 413 U.S. 920;
Oliver v. School Dist. of Kalamazoo, 368 F. Supp. 143 (W. D. Mich. 1973); Hart v. Community School
Bd. of Brooklyn, 383 F. Supp. 699 (E.D.N.Y. 1974), Brinkman v. Gilligan
F. 2d
(6 Cir. 1974).
District court opinions holding school systems segregated in San Francisco, Johnson v. San Francisco
Unified School Dist., 339 F. Supp. 1315 (N.D. Calif. 1971), vacated, 500 F. 2d 349 (9 Cir. 1974) and
Oxnard, California, Soria v. Oxnard School Dist., 328 F. Supp. 155 (CD. Calif. 1971), vacated, 488 F.
2d 579 (9 Cir. 1973), have been remanded to the lower courts for findings on intent required by Keyes
v. School Dist. No. 1, Denver, 413 U.S. 189 (1973). Pending such findings the desegregation relief
ordered by the district courts was to remain in effect.
7
413 U.S. 189 (1973).
8
Keyes, supra, 413 U.S. at 196-214.
9
379 F. Supp. at 477.
10
T h e actions of the Boston School Committee have been reviewed in other fora as well. Federal
Administrative Law Judge Ring found the School Committee to have been guilty of de jure segregation in violation of the 1964 Civil Rights Act, In re Boston Public Schools, No. CR-982 72-1 (3/2/73),
and the Massachusetts Supreme Judicial Court in numerous decisions documented the School Committee's concerted campaign to evade the statutory requirements of the State's Racial Imbalance Act.
School Committee of Boston v. Bd. of E d u c , 1973 Mass. Adv. Sh. 160, 275, 1315.
11
379 F. Supp. at 482. Although the acts taken to implement these strategies may stand alone as
Constitutional violations, the court expressly relied "upon the record as a whole including the
multiplicity and cumulative effect of the defendants' policies and practices" to support its ultimate
finding. 379 F. Supp. at 479.
12
379 F. Supp. at 482. For an excellent exposition of northern segregative strategies see Paul R.
7
I shall proceed to examine that program by looking first at the acts of the
defendants 13 which separated students by race and then at faculty and staff
practices which reinforced school segregation. Finally, I shall address some concluding remarks concerning the import of the court's decision and the events since
its announcement.
Where the Students Go to School
The Boston School Committee, like all school boards, decides where students go
to school, where new schools should be constructed, how overcrowding should be
alleviated and what grade structure schools should have. In making these decisions the school board makes choices from the available options. When it does so
on nondiscriminatory bases, the choices made may transgress preferred educational norms, but they do not rise to the level of constitutional errors. However,
the court found that the defendants made many of those choices without educational justification and with "the purpose of promoting racial segregation and [the
defendants] accomplished their purpose." 14
One set of these choices, found by the court to have foreseeable segregative
effects, involved the use of school facilities.15 The defendants assigned white
students to overcrowded white schools rather than to adjoining underutilized
black school districts. 16 South Boston High School, for example, was assigned 676
students over its capacity in 1971-1972, while nearby Girls High— 92 percent
black—was underenrolled by 532 places. 17 To alleviate overcrowding at the
Diamond, School Segregation in the North: There is But One Constitution, HARV. CIV.R.-CIV. LIB. L. REV. 1
(1972).
13
Reference herein to "the defendants" should be read to include the Boston School Committee, its
individual members and the Superintendent of Schools, a practice of collective designation followed
by the court through the largest part of its opinion. The plaintiffs, who were certified by the court as
proper representatives of "all black children enrolled in the Boston Public Schools and their parents,"
also sued the Board of Education of the Commonwealth of Massachusetts, its individual members and
the Commissioner of Education, alleging constitutional violations which the court concluded were not
proven by the evidence. 379 F. Supp. at 476-477.
14
379 F. Supp. at 449, 480. See Keyes, supra, 413 U.S. at 234-235 (Powell, J., concurring in part,
dissenting in part).
15
A similar practice of school utilization as a segregatory strategy has been found to exist in
numerous northern school systems. See, e.g., Keyes, supra, 413 U.S. at 202; Booker, supra, 351 F.
Supp. at 803, 808; Spangler, supra, 311 F. Supp. at 509, 522; Kalamazoo, supra, 368 F. Supp. at
172-174. It is remarkable how many of Boston's segregative techniques paralleled those used by other
northern school systems. Presumably each system discovered the strategies on its own. Footnotes
throughout the article will cite decisions where courts have found segregative techniques similar to
those used in Boston.
17
379 F. Supp. at 425-427.
17
379 F. Supp. at 426.
8
Not one Judge's Opinion
ROGER I. ABRAMS
white Cleveland Junior High School, the defendants chose not to assign students
to the closer and underutilized black schools, but rather to crowd further already
overutilized South Boston High. 18 Deputy Superintendent of Schools Thomas
Meagher testified that assigning white students to black schools to alleviate overcrowding
was not considered because white parents would protest. 19 The School
Committee chose instead to overcrowd.
A related technique by which the defendants "perpetuate[d] the racial concentrations in both the overcrowded [white] schools and the [black] schools to which
displaced students might have been sent" was the placement of portable classrooms
at white schools. 20 However, when portables were recommended by a study
as an effective means of reducing segregation, the Boston Superintendent of
Schools rejected their use as "educationally undesirable." 21
The court also noted instances of the deliberate use of new facilities to
perpetuate racially segregated schools. 22 For example, the School Committee
purchased an existing Catholic school in the 98 percent white Roslindale section of
the city and bused black children to it from black neighborhoods past white
schools with vacant seats. The school opened 93 percent nonwhite in the middle of
a white neighborhood. 23
The defendants claimed that many new schools opened as segregated because
of shifting racial populations that could not be foreseen at the time the schools
were planned. The court found, to the contrary, that a study commissioned by
defendants in 1962 had predicted with 95 percent accuracy the growth and
movement of Boston's black population through the decade of the 1960's. "The
existence of this report is a sufficient answer to defendants' intimation that they
were surprised by shifting racial concentrations which frustrated their racial
balance plans." 24
Boston school construction practices "deliberately incorporated" residential
segregation, of which the defendants were keenly aware, into the public school
18
379 F. Supp. at 426. In 1971 -72, 788 students were assigned to South Boston High who did not live
in South Boston. Overcrowding was so great at South Boston High that the defendants converted part
of the L Street Bathhouse into a school, which opened with a totally white student body.
19
379 F. Supp. at 427.
20
379 F. Supp. at 427-428.
21
379 F. Supp. at 428.
22
379 F. Supp. at 428-432. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of E d u c , 402 U.S. 1,
20-21 (1971); Bradley v. Milliken, supra, 484 F. 2d at 235; School Dist. 151, supra, 432 F. 2d at 1149.
23
379 F. Supp. at 429. Although the court did not expressly refer to the matter, the white students assigned to the school, who constituted 7 percent of the student body, were mostly visually
handicapped pupils.
24
379 F. Supp. at 471.
9
system. 25 At least 20 small elementary schools, built within or adjacent to segregated public housing projects, necessarily reflected the racial compositions of
the projects. 26 For example, the Hennigan School, built adjacent to the Heath
Street housing project which was 99 percent black, opened as racially segregated in 1972, a result that the court held "could not have come as a surprise." 27
In fact, the defendants "built new schools for a decade with sizes and locations designed to promote segregation." 28
The School Committee consistently rejected and evaded the demands of the
Massachusetts State Board of Education—demands made pursuant to state
law—to redistrict schools to alleviate racial imbalance. 29 At the same time, however, the defendants in effect did redistrict by altering feeder patterns—"a combination
of seat assignments, preferences and options" which determined enrollment at high schools—in order to perpetuate racial separation. 30 The defendants
also changed school grade structures by converting four black junior high schools
(grades 7 through 9) into middle schools (grades 6 through 8), which tended to
channel black students into black high schools (which began at grade 9) and away
from white high schools (which began at grade 10).31 "The only consistent basis
for the feeder pattern designations, changes and deletions was the racial factor;"32
the segregation which resulted from the manipulation of feeder patterns was
intentional and purposeful. 33
The consequences of the feeder pattern changes and discriminatory options, in combination with the opening of four middle schools, was altogether foreseeable, almost immediate, and well-understood by the defendants: a dual system of secondary education was
created, one for each race.34
25
379 F. Supp. at 470. Segregated housing patterns and public housing projects "were a frequent
topic of discussion at school committee meetings from at least 1963 until the time of trial."379 F. Supp.
at 471.
26
379 F. Supp. at 472.
27
379 F. Supp. at 430.
28
379 F. Supp. at 481.
29
379 F. Supp. at 449. Under the state law "racial imbalance" existed when "the percent of
non-white students in any public school is in excess of fifty percent of the total number of students in
such school." Mass. G. I.. Chap. 71, Sec. 37D. After the decision in the Boston case, the Massachusetts
Legislature effectively repealed the Racial Imbalance Act, an action of questionable constitutionality.
Acts of 1974, Chap. 636.
30
379 F. Supp. at 441-449.
31
379 F. Supp. at 448.
32
379 F. Supp. at 446. See, e.g., Keyes, supra, 413 U.S. at 192, 201 ; Spangler, supra, 311 F. Supp. at
588; Booker, supra, 351 F. Supp. at 804.
33
379 F. Supp. at 481.
34
379 F. Supp. at 447-448.
10
Not one Judge's Opinion
ROGER I. ABRAMS
To facilitate segregation in areas of the city where black and white residential
communities abutted, the School Committee administered an open-enrollment
program which "enabled white students to transfer from schools with racial
compositions not to their liking." 35 For five years the School Committee refused to
accede to the demands of the State Board of Education that open enrollment be
limited to transfers which would redress racial imbalance in the schools.36
Under the pressure of withheld state funds, the defendants finally did create
such a controlled transfer policy, but with five eviscerating exceptions:
( 1 ) A "grandfather" clause was included, perpetuating preexisting segregatory
transfers and filling up available seats;
(2) transfers applied for, but not granted, prior to the new policy were considered to have been granted, and thus were protected by the "grandfather"
exception;
(3) intra-district transfers 37 were not to be covered;
(4) "group exceptions" on a case-by-case basis were to be voted upon by the
School Committee; and
(5) hardship transfers, referred to by the School Committee members as an
"escape clause" and "a big out," were allowed. 38
The court found that, viewed together, the open enrollment and controlled
transfer policies were managed under the direction of the defendants with the
singular intent of discriminating on the basis of race. 39 The assignment of pupils
to schools on the basis of race, 40 albeit covert or subtle, was a carefully cultivated
program. 41
35
379 F. Supp. at 449. See, e.g., Taylor, supra, 191 F. Supp. at 184-185; Booker, supra, 351 F. Supp.
at 804, 808. While not all open-enrollment transfers were segregative (black students were allowed to
transfer to white schools), the court found that on the whole the segregative effects of the policy were
"cumulative and probably substantial." 379 F. Supp. at 453. In 1971, the Massachusetts Commission
Against Discrimination in an unrelated action found Boston's open enrollment program to have been
discriminatorily administered. M.C.A.D. ex rel. Underwood v. Boston School Committee, No.
EDXIV-1-C.
36
379 F. Supp. at 449.
37
Elementary school districts contained from one to five schools which the court found in some
instances varied greatly in racial composition. 379 F. Supp. at 455.
38
379 F. Supp. at 453-455. The controlled transfer policy was approved by the School Committee
upon consideration of a staff memorandum which described open-enrollment as "parental choice as
to school attendance historically granted to families in changing neighborhoods." 379 F. Supp. at 452.
(Emphasis in court's opinion.)
39
379 F. Supp. at 455.
40
The court also found racial segregation to exist in the elite and vocational schools of the Boston
system. Under the Keyes guidelines, a presumption of intention and purpose is created by "a finding
11
Thus, the court's approach to a finding of purpose or intent to segregate
complied with the mandate of Keyes.42 The court assayed the evidence to determine if the defendants acted "with a desire to bring about or continue segregation
in the Boston schools or with knowledge that such segregation was certain, or
substantially certain, to result from their actions." 43 The record upon which the
court made its findings of intent was unique: the Boston School Committee kept a
stenographic transcript of all its meetings, both public and executive sessions. The
"several hundred pages" of transcripts relied upon by the court in making its
findings of segregative intent made clear—often in graphic terms—why certain
actions were taken and why certain strategies were pursued. 44 The court
stated it could not overlook racist statements of individual Committee members
such as the statement of the Chairman in June of 1971: "I think the facts of the
matter are that the Negro immigrants from the South are disinclined to put their
efforts into our northern type of education." The Chairman continued, "You
certainly have a right to say that I seem to be talking about letting the Negroes have
their own schools and the whites have their own schools." 45
Who Teaches the Students
After carefully setting forth the facts which demonstrated to the court's satisfaction that the Boston students were intentionally segregated by acts and practices of
the school authorities, the court examined faculty and staff policies which discriminated against black children "indirectly—but no less significantly."46
Rationalizations employed elsewhere to excuse defendants' conduct, such as
neighborhood schools or residential segregation, were not applicable to faculty
and staff assignment practices, since such matters were undeniably within the total
control of the defendants. Thus, the results of those practices were particularly
telling.
of intentionally segregative school board actions in a meaningful portion of a school system. . . ."
Keyes, supra, 413 U.S. at 208. The Boston court's "detailed findings of intentional segregation of
students and staff at all grade levels and in all parts of the city" discussed above satisifed the Keyes test,
shifting to the defendants the burden of disproving unlawful intent with regard to the elite and
vocational schools, which burden the court found the defendants failed to carry. 379 F. Supp. at 467.
41
479 F. Supp. at 478. The Constitution "nullifies sophisticated as well as simple-minded modes of
discrimination." Gomillion v. Lightfoot, 364 U.S. 339, 342 (1960).
42
413 U.S. at 208.
43
379 F. Supp. at 478.
44
379 F. Supp. at 480.
45
379 F. Supp. at 480.
46
379 F. Supp. at 456. The court noted that the Supreme Court in Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. I, 18 (1971), considered faculty policies and practice "among the most
important indicia of a segregated system."
12
Not one Judge's Opinion
ROGER I. ABRAMS
Black teachers, the court found, were intentionally segregated in black schools.
"A rough understatement of the situation is that less than one-third of the schools
are majority black, but over two-thirds of the black teachers are sent to them." 47
Three quarters of all new black teachers hired in 1971 were assigned to majority
black schools. On the other hand, over 40 percent of the Boston schools had never
been assigned a black teacher. 48 Black administrators in Boston were even more
segregated: All five black principals and fourteen assistant principals were as­
signed to majority black schools. 49 The defendants carried out faculty segregation
by granting express requests from principals that black teachers be assigned to
particular schools and by administering a teacher transfer program which allowed
experienced white teachers to flee black schools for white schools. 49
The court found that the defendants also allocated teacher resources on a
discriminatory basis. Black schools were staffed with "less qualified and experi­
enced teachers and with ever-changing faculties."51 For example, in 1971-1972, in
an average school which was 80 to 100 percent black, only 75 percent of the faculty
were permanent, fully qualified teachers, while in a school 80 to 100 percent
white, over 90 percent of the teachers were permanent; 52 teachers in black schools
averaged less than half the experience of teachers in white schools. This "experi­
ence imbalance" was well known to senior school department officials and to the
School Committee which discussed the subject at several meetings. 53 Teacher
transfer policies and a disproportionate allocation of provisional teachers resulted
in a rate of teacher turnover which was higher in black than in white schools. The
defendants, the court found, "were aware that the high rate of teacher turnover at
predominantly black schools was educationally harmful." 54 Such a disproportion­
ate allocation of teacher resources denied black students an equal educational
opportunity. 55
In order to hire faculty and promote administrators, the defendants used
unvalidated selection devices which discriminated against potential black teachers
and administrators. They misused the National Teachers Examination (ΝΤΕ) for
47
379 F. Supp. at 459.
379 F. Supp. at 459. See, e.g., Keyes, supra, 413 U.S. at 199-200, 202, 206; Booker, supra, 351 F.
Supp. at 808; Kelly, supra, 456. F. 2d at 107; Spangler, supra, 311 F. Supp. at 513-514.
49
379 F. Supp. at 459-460. See, e.g., School Dist. 151, 301 F. Supp. 201, 228 (N.D. I11. 1968), affd. as
modified, 432 F. 2d 1147 (7 Cir. 1970), cert. denied, 402 U.S. 953 (1971).
50
379 F. Supp. at 460.
51
379 F. Supp. at 461. See, e.g., Spangler, supra, 311 F. Supp. at 514.
52
379 F. Supp. at 461.
53
379 F. Supp. at 462.
54
379 F. Supp. at 463.
55
379 F. Supp. at 463. See, e.g , Hobson v. Hansen, 327 F. Supp. 844 (D.D.C. 1971).
48
13
teacher hiring. 56 An arbitrary, high cut-off point was applied to the ΝΤΕ score,
which excluded a higher percentage of black applicants than white applicants.
Applicants who "passed" the ΝΤΕ were then allocated points based on a brief
interview and on their educational credentials. Dr. Stephen Michelson, the plain­
tiffs' expert, reported to the court and testified at trial that these additional factors
were random variables with little variation and that the correlation between the
ΝΤΕ and total point score was virtually perfect. Thus, a single variable, the ΝΤΕ
score, determined rank on the permanent teacher eligibility lists, which in turn
determined who was hired and who was not. Dr. Richard Majetic of the Educa­
tional Testing Service, which prepares the ΝΤΕ, testified at trial that such use
was contrary to the NTE guidelines—of which the defendants were aware—
because the ΝΤΕ does not have substantial predictive validity and use of the ΝΤΕ
score for ranking purposes assumes "a kind of precision to testing that just
doesn't exist."57 Moreover, studies conducted by the Educational Testing
Services, of which Boston school officials again were aware, indicated that black
applicants scored lower than white on this standardized examination which
measured "only a fraction of the characteristics required for effective classroom
performance." 58 Thus reliance on the ΝΤΕ score alone as the basis for the hiring
decision had a foreseeable discriminatory impact. In addition, Dr. Michelson's
study of 1971 applicants for permanent teaching positions concluded that two to
three times as many Whites as Blacks were hired compared to the number who
applied.
In defense, the defendants asserted that they had attempted to recruit black
teachers in the school system. This argument was dismissed by the court; the
success of the black recruiter was meager "and the reason has been obvious
enough: lack of time, money, authority and cooperation from the defendants." 59
The School Committee had merely "gone through the motions." 60
Administrative positions in Boston were filled by means of a promotional
system which by its express requirements had the effect of limiting applicants to a
pool almost totally white. The court noted that the School Committee was aware of
the problem of discrimination in the promotional process and froze the promo­
tional system in August, 1971, pending consideration of a new mechanism for
56
See, e.g., Chance v. Bd. of Examiners, 458 F. 2d 1167 (2 Cir. 1972); Castro v. Beecher, 459 F. 2d
725 (1 Cir. 1972); Baker v. Columbus Mun. School Dist., 462 F. 2d 112 (5 Cir. 1972).
57
379 F. Supp. at 464.
58
379 F. Supp. at 464.
59
379 F. Supp. at 465.
60
379 F. Supp. at 464.
14
Not one Judge's Opinion
ROGER I. ABRAMS
selection of administrators. During the period from August, 1971 to February,
1973, the defendants filled administrative positions only on an "acting" basis. The
30 administrative vacancies filled on this basis all went to whites. 61
The faculty and staff practices of the defendants denied Boston's black students
their constitutional right to attend a public school system free of the taint of racial
segregation and discrimination. 62 The deliberate faculty and staff segregation
reinforced the effects of student segregation by identifying certain schools as
officially designed for students of a particular race "just as clearly as if the words
were printed across the entrance in six-inch letters." 63
Redress for Racial Insult
The case now stands in the remedy stage. As a first step, the court ordered the
School Committee to implement a plan designed earlier by the State Board of
Education under the now effectively repealed State Racial Imbalance Act. Faculty
desegregation and remedial hiring have begun. A comprehensive plan using all
available desegregation techniques and embracing the entire city is scheduled to
go into effect in September, 1975. While much of the public furor has crystallized
around the symbol of busing, it should be noted that busing as a tool for segregation was widely used by the defendants before the Boston decision was reached.
The court found that at least 30,000 pupils were transported daily in Boston prior
to the court order. 64 The question then is not whether busing will be instituted, but
rather where the buses will go.
The Boston case has caught the public conscience not so much because of the
merits of the judicial decision, but rather because of the reaction to it on the streets
of Boston. Twenty years after Brown v. Board of Education,65 black children have
been assaulted by mobs while attempting to go to school. 66 What the violence, the
parades and the boycotts indicate, however, is not that desegregation ought not to
occur, but rather that it must. Black and white students must receive public
education under conditions consistent with the mandate of our Constitution
that there be no "black schools" nor "white schools," but only "schools." 67
Moreover, the court's decision presents the communities of Boston with the
61
62
63
64
65
66
67
379 F. Supp. at 466.
Rogers v. Paul, 382 U.S. 198 (1965); Bradley v. School Bd. of Richmond, 382 U.S. 103 (1965).
Kelly v. Altheimer, Ark. Public School Dist., 378 F. 2d 483, 491 (8 Cir. 1967).
379 F. Supp. at 424, 456.
347 U.S. 483 (1954).
See Maurice Ford. "Field Trip to South Boston," The Nation, 219 (Oct. 26, 1974), p. 389.
Green v. Ct. School Bd. of New Kent Ct., Va., 391 U.S. 430, 442 (1968).
15
opportunity to fulfill the Constitutional promise of equality under the law and
redress the racial insult delivered by the School Committee to the black citizenry of
Boston. And more importantly, the court's decision presents communities
everywhere with the opportunity to continue the dialogue about what kind of
people we want to be, what principles we stand for and how we want our children
to be educated. The resolution of that dialogue is of great significance to our
mutual future.
16
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This is the definitive publisher-authenticated version of the following article:
Roger I. Abrams, “Not One Judge’s Opinion: Morgan v. Hennigan and the Boston
Schools,” Harvard Educational Review, volume 45n1 (February 1975), pp. 5-16.
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