Massachusetts State House.
Policy Library

A Retrospective – The BBA and Busing, 40 Years Later

September 11, 2014

As another school year begins, we pause to consider a tumultuous period in Boston history.  Forty years ago this week, the eyes of the nation were on the Boston public school system as it implemented an extremely controversial desegregation and busing plan. Locals who lived through those days will likely never forget them, but many of us are too young to remember.  The anniversary of this time has once again brought the issue to public light.  The Boston Globe’s articles and brief documentary and WBUR’s oral history vividly evoke the tenor and events of those not-so-distant days, when students were bused to different areas of the city to fulfill the goals of the Court-approved desegregation plan.

The BBA played a prominent leadership role in helping the city understand the legal principles at play in this episode.  In 1974, following Judge Arthur Garrity’s decision in Morgan v. Hennigan, then BBA President and 2014 Lifetime Achievement Honoree, Ed Barshak, appointed a Committee on School Desegregation.  The Committee’s report, “Desegregation: The Boston Orders and Their Origin,” explained the power of the federal court, discussed the content of the opinion and desegregation orders, and provided a list of various resources available for further explanation.

Some key points from our Committee Report:

The District Court’s power is traced to Article III of the U.S. Constitution, which gives Congress the power to create federal courts and provides the President with the power to appoint federal judges for life-long terms.  Federal courts have the power to resolve disputes and order appropriate remedies, but are also limited in many ways including in their jurisdiction to hear cases and their enforcement powers.

The Equal Protection Clause prohibits states from denying equal protection of the law to any person, meaning that no government organization in any state can pass a law or regulation which arbitrarily denies state citizens benefits given to others.  By 1974, the U.S. Supreme Court already dealt with a number of cases on public school segregation, most famously Brown v. Board of Education, and established precedent that intentional segregation by a school board, whether or not state law specifically required it, violated the Equal Protection Clause.

The power of the federal court and importance of the Equal Protection Clause play important roles as well in Morgan v. Hennigan, the Boston school desegregation case.  The complaint alleged that the Boston School Committee intentionally brought about and maintained racial segregation through many of its policies.  The School Committee agreed that schools were in fact segregated, but argued that this was due to residential segregation and the policy of schools serving local neighborhoods.  When Judge W. Arthur Garrity examined the facts at hand, he made the following findings:

  1. Mostly white schools were badly overcrowded while mostly black schools had excess space, yet the School Committee did not transfer students to even out the numbers.
  2. The School Committee intentionally refused to change existing districts to make schools more racially even.
  3. The school system “feeder” program had the intended and actual consequences of pushing students from predominantly black or white elementary and junior high schools into high schools that were homogenous along corresponding racial lines.
  4. The allegedly open transfer policy was actually used as an aid to white students to transfer out of predominantly black schools.
  5. Teachers were also segregated by race.
  6. Three examination schools were predominantly white, while two trade schools were predominantly black.

Ultimately, Judge Garrity determined that the School Committee intentionally and purposefully created and maintained a segregated school system in Boston.  The Court’s remedy was the installation of a desegregation plan which included the aforementioned busing arrangement.

When the plan was initially met with protests and a boycott by some white students, the Governor Francis Sargent stepped in to enforce the court’s remedy, bringing in the State Police and putting the National Guard on alert.  It would take the city some time to devise further phases of the desegregation plan, and far longer for the public to come to terms with them, but the BBA recognized right away that Judge Garrity’s decision was changing the city for good.  In fact, the BBA honored him with the Public Service Award in 1975, just one year after the controversial decision.

The BBA is proud of our long history of advancing diversity and inclusion, not just in the legal profession, but in the community at large.  This commitment remains a cornerstone of the BBA mission, as does our involvement with Boston’s public schools, which continues today through public service initiatives such as the BBA Summer Jobs Program and M. Ellen Carpenter Financial Literacy Program.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association