The Executive Branch Stumbles

Black and white photo of students boarding a bus

Bruce R

This article originally appeared in Southern Exposure Vol. 7 No. 2, "Just Schools: A Special Report Commemorating the 25th Anniversary of the Brown Decision." Find more from that issue here.

The federal government's attitude toward school desegregation has wavered over the past 25 years between mild uncertainty and acute schizophrenia.

For the first 10 years after the Supreme Court said in the Brown decision that it was illegal to operate dual school systems, the government simply scratched its many heads, trying to decide what, if anything, it should do. Then, in a spasm of mid '60s civil rights activism, it joined the crusade to wipe the segregationist smirk off the face of the South. (The North, of course, had its back turned at the time, and was overlooked.)

The Nixon years followed, when Washington seemed to lie awake nights, devising ways to slow down the desegregation process. And now, in 1979, it seems to be stuck in the mud once again, not sure of where it should be going, or how it got into this mess in the first place.

The people you might want to blame for this strangely inconsistent behavior - the high- and low-level bureaucrats in the Department of Health, Education and Welfare (HEW), and the constitutional experts in the Justice Department - swear it's not their fault. The problem, they explain, is with the other bureaucrats, the fickle public, the vote-hungry politicians in Congress, the power-hungry courts, or the headstrong presidents.

The civil rights movement over the years has also produced a large stable of desegregation experts who must share the blame for the government's fly-by-night policies. But, occasionally, a report on the progress of school desegregation will shed considerable light on what the government has been doing. One such account is Must We Bus: Segregated Schools and National Policy, a 1978 book by Gary Orfield published by the Brookings Institution. Now teaching political science at the University of Illinois, Orfield has spent much of his career writing papers and giving speeches that advocate “metropolitan-wide desegregation” (also known as busing across city lines). Aside from reaching the expected conclusion — bus we must — his latest study draws on Orfield’s 10 years of experience in and around the Washington bureaucracy to give us an insightful look at the chameleon nature of federal desegregation policies. 

From the time it began to get involved, with the passage of the 1964 Civil Rights Act, to its latest maneuvering of funds from the South to the North, the government’s policies have largely been a series of political reactions that ignore “the legal principles and social ideals originating with the landmark case, Brown v. Board of Education.” It was not until a decade after the Brown decision was handed down—after civil rights groups were worn to a frazzle chipping away at segregation, case by isolated case—that Washington came through with the Civil Rights Act.

Civil rights activists thought the new law was a sign that at last this country had committed itself to eliminating the problem of race relations. After all, the bill was signed by Lyndon Johnson—the first Southern president since before the Civil War—and was supported by a wide spectrum of politicians, from the black leaders who led the March on Washington in 1963 to a surprising number of conservative Republicans. For school desegregation, the strength of the act lay in the broad enforcement powers it gave to the Departments of Justice and HEW. The South, where all the early efforts were directed, seemed to have no choice but to comply. Under Title IV of the Act, HEW now had the power to withhold federal funding from any school district maintaining a dual school system. Under Title VI, Justice could knock out the last diehards with federally financed civil rights suits. 

This one-two threat was so great that many districts decided to comply immediately, without so much as an arm twisting. During the first year of enforcement, Orfield notes, more black children went to desegregated schools in the South than in the entire decade preceding the Civil Rights Act. 

At first, all that was needed in many cases was the issuance of guidelines from HEW that explained what would happen to the school districts that refused to desegregate. Compared to the many rules that were to issue forth from HEW in later years - covering just about every imaginable aspect of education, from teaching the handicapped to school dress codes - the language in that first set of desegregation guidelines was clear and to the point:

To be eligible to receive or to continue to receive (financial) assistance, school officials must eliminate all practices and characteristics of . .. dual or segregated school systems.

Those first guidelines, though, set up very minimal standards for desegregation, requiring only that the school officials submit "assurance" that they would comply. HEW sent out a squad of bureaucrats to explain the implications directly to Southern school officials. For the most part these were not crusading civil rights activists. With titles like "education program specialist," they generally turned out to be no more than career-minded civil servants who wanted only to interpret the law to the school officials and to ask them to cooperate. This could be done by filling out a relatively simple form, as government forms go, which called for little explanation. It also left open the door for the "freedom-of-choice" plans that were later found to be unacceptable.

Soon it became obvious to the policymakers in Washington that their guidelines were too easy. Word was getting back from their men and women in the field that the freedom-of-choice plans were not working: blacks who voiced an interest in integrated schooling were greeted with economic and physical reprisals. Few black children were being enrolled in white schools, and whites were not even considering going to black schools.

So in 1966, new guidelines were issued, stronger this time, warning districts that if their freedom-of-choice plans did not work, they would have to rezone their attendance boundaries and force students to integrate. Naturally, this meant busing. And while it often meant a shorter bus ride for black children who had been bused past white schools before, it met stiff

resistance in the form of the first "neighborhood schools" campaigns that were later to be picked up by Northern resisters.

In 1968, backed by a new Supreme Court ruling, HEW issued a set of even more stringent guidelines, this time ordering the school officials to come up with desegregation plans that involved more than busing a few black students into one or two white schools. "If, under a free choice plan, vestiges of a dual school structure remain," the new rules said, "the school system is responsible for taking whatever additional steps are necessary to complete the desegregation of its schools." And this was to be done no later than the fall of 1969.

With each set of guidelines, the resistance became greater. But this was a period when HEW was at its top strength. Its secret weapon was a program that, on the surface, had nothing to do with school desegregation - Title I of the Elementary and Secondary Education Act. This program, designed to help “target” schools with high concentrations of poor students, came into being the year after the Civil Rights Act was passed. It began with more than a billion dollars, the largest pool of federal money ever offered to local school districts. It was the threat of losing this huge new source of funding, along with a number of other smaller HEW-financed programs, that eventually brought most Southern school districts into compliance with the Civil Rights Act.

By 1970, HEW had persuaded or pressured almost 1,800 mostly small country school districts in the South to begin to dismantle their segregation systems, which for so long had been protected by law and custom. About 600 of those districts continued to resist up to the point of going through administrative hearings on whether or not their funds should be cut off, and some 200 of them actually went without federal funds for a year or so before they decided to comply. 

While HEW was pulling its strings, the Justice Department’s Civil Rights Division worked with groups like the NAACP Legal Defense Fund to build court cases against other Southern recalcitrant. Until 1968, however, Orfield points out, civil rights groups had been critical of Justice’s “cautious approach,” which supported the freedom-of-choice method of desegregation long after HEW began to ask for something stronger. It was then that the Supreme Court ruled in Green County School Board of New Kent County that all racially identifiable schools must be eliminated by the fall of 1969.


Through the active years in the late 1960s, the government concentrated its desegregation drive on the South and left the North pretty much alone. The legal argument was that segregation in the North was not a result of “official actions” as it was in the South. But it was more than that, Orfield points out. It was politics. 

In 1965, HEW made an awkward attempt to defer $32 million in federal aid from Chicago schools as a result of a civil rights complaint there. But Mayor Richard J. Daley put his powerful organization into motion, and suddenly congressmen were threatening to kill all kinds of education legislation, forcing HEW to beat a hasty retreat. Meanwhile, officials in HEW’s Office of Education began to worry that their efforts to enforce desegregation anywhere else might lead to a backlash attack on their other programs. So the enforcement arm was taken out of that office and developed as an independent branch of HEW called the Office for Civil Rights. 

As the guidelines for desegregation became tougher, Southern congressmen fought back by attacking HEW’s enforcement powers. While they failed to strip the agency altogether of its powers, they did succeed in weakening its role by spreading the desegregation misery to other parts of the country. In 1967, Southern legislators won a measure that required HEW to enforce school desegregation equally around the country. And in 1968, Congress accepted a Southern proposal that half of HEW’s desegregation staff be devoted to Northern desegregation cases.

This move proved to be the beginning of the end of congressional support for HEW’s desegregation powers, because it meant that now the agency would encounter strong opposition from both the North and the South.

Orfield notes that political opposition to forced desegregation began to swing into full stride during the 1968 election campaigns, when George Wallace and Richard Nixon, in their competition for Southern votes, criticized HEW and the courts for going too far, and extolled the virtues of freedom of choice. When Nixon took office, HEW’s desegregation efforts came to a standstill “in the rural and urban South as well as in the Northern cities.” Eventually, Nixon’s public position on desegregation and busing would be even more conservative than that of the Southern governors. 

One of the first actions of Nixon’s new HEW secretary, Robert Finch, was to grant delays to five Southern districts that were being threatened with funding cutoffs because they failed to meet the fall 1969 deadline for desegregation. “HEW eventually withheld funds from three of those districts,” Orfield recounts, “but not before federal policy became more and more fuzzy.” 

The deadline for desegregation in the South was all but scrapped by a Nixon administration announcement in July, 1969, which included this statement: "A policy requiring all school districts, regardless of the difficulties they face, to complete desegregation by the same terminal date is too rigid to be either workable or equitable."

A few months later, Attorney General John Mitchell told a group of conservative congressmen that it might not be a bad idea to return to free choice plans, even if it meant permitting resegregation. This new attitude from high in the administration often conflicted with the efforts of the rank-and-file bureaucrats in HEW and Justice, which by now included a good number of civil rights activists. The result, Orfield says, was a "strange bureaucratic warfare" that was to last throughout the Nixon administration. 

It was a period of angry memos, administrative confrontations and mass resignations. Most of the rebels who

refused to follow the Nixon line were quickly axed. For example, Leon Panetta, the director of the Office for Civil Rights who had tried to continue the enforcement program despite orders from above to go slow, picked up the newspaper one morning in early 1970 and discovered he had just been fired.

"By 1971," Orfield writes, "it was clear that HEW had given up its mission of bringing the nation's public schools into compliance with constitutional requirements. The ultimate sanction of fund cutoffs had been publicly abandoned and its last administrative proponent fired. The White House openly warned federal officials that they would be fired if they continued to urge busing. The Office for Civil Rights seemed to have become an agency without a mission."

Although he had attacked the courts' role in desegregation during his election campaign, Nixon took the position early in his administration that he would rely on the Justice Department to push the issue by filing lawsuits. Eventually, the federal courts stepped in, ordering many districts to desegregate immediately, even though the administration made it clear that it would let them delay for as long as they wanted.

As the courts continued to rule against its delaying tactics, the Nixon administration finally decided to begin a desegregation push of its own, hoping to neutralize the issue in the South well before the 1972 election. In 1970, President Nixon announced that desegregation was inevitable in the South, while continuing to hold the line against busing in urban areas. After his announcement, Justice officials said they planned to pressure 200 segregated districts in the rural South to desegregate right away. Then came a cabinet-level desegregation committee under Vice President Spiro T. Agnew. This action was effective enough to persuade many of the last Southern holdouts to comply, including, for example, 23 of the 32 remaining segregated districts in Arkansas. Nixon's desegregation policy also included granting money, under the Emergency School Aid Act, to school systems to help them overcome the trauma of desegregation. But the money was often spent hastily, with no consideration for actual progress toward desegregation. Money was given to districts that were "systematically firing black teachers and principals and segregating black children in nominally 'desegregated' buildings."

Meanwhile, another court case was reshaping HEW's role. 

In 1969, when the HEW retreat became obvious, civil rights groups, led by the NAACP Legal Defense Fund,

filed a suit to force the agency to follow the mandate of the Civil Rights Act. In 1973, in Adams v. Richardson, U.S. District Court Judge John H. Pratt in Washington ruled in favor of the civil rights groups, finding that 113 school districts - many of them in the South - had backed down on their promises to desegregate after HEW changed its policies in 1969. Altogether, the court ordered the agency to begin action against 127 districts found to be still operating segregated systems.

The HEW response to the court order was slow, however, and produced almost no new desegregation. But the order did "restore some credibility to the process of enforcing the Civil Rights Act," Orfield concludes. "Compliance machinery unused for four years now began to operate again. While no system had yet lost federal aid because of Judge Pratt's order, local officials had to consider that possibility."

As the years passed, one of the few aspects of desegregation that the experts have been able to agree on is that a desegregation plan seems to work better if developed "voluntarily," under the not-so-subtle pressures of HEW, than if ordered by the courts. Most of the statistics, according to Orfield, show that "substantially higher levels of segregation" remain under court-ordered plans than under HEW-negotiated plans. One study, for example, done by the U.S. Civil Rights Commission, showed that there was considerably less white flight in districts that had been persuaded to desegregate by HEW than in those that had been ordered to do so by the courts.


But today, with the civil rights momentum halted, for any government agency (federal or local) to undertake to develop a new desegregation plan is to throw itself into the fires of hell. Consequently, the matter has been left almost entirely up to the courts.

HEW and Justice have turned their attention to the problems of districts that have already gone through the initial motions of desegregation. These are the "second generation" problems: the continuing gap in achievement levels of black and white students, the self-segregation of students in desegregated schools, the disproportionate grouping of black students in remedial classes, and the often unnecessary suspension of black students at the first sign of trouble.

Many of these problems are just now being acknowledged in the South. Civil rights groups, dissatisfied with the way black students are being handled in desegregated schools, are being joined by the Justice Department in reopening old suits. HEW is increasing its funding for research and programs designed to eliminate the second-generation problems.

But activists and school officials in the South are beginning to worry that the government is not paying as much attention to their continuing desegregation problems as it once did. They cite recent changes in two programs that have been largely responsible in the past for preventing desegregated districts from falling into complete chaos.

The oldest of the two programs provided small grants under Title IV of the Civil Rights Acts to help school officials cope with desegregation through technical assistance and staff training. Most of this assistance came through a number of desegregation centers, usually attached to universities throughout the South. Recently, while funding for the Title IV program has expanded from $6 million in 1965 to $41 million in 1979, the scope of the program has expanded to include other programs to alleviate sex discrimination and language difficulties. At the same time, as the focus of desegregation has shifted to the North, the number of desegregation centers in the South has decreased from 36 in 1975 to 15 this year. 

The government is also in the process of overhauling the Emergency School Aid Act (funded at $291 million for fiscal 1979), which was started in 1973 to provide student services for schools that retained large concentrations of minority students in desegregated districts. The question HEW officials are now asking themselves, a spokesman said, is “for how many years should [ESAA] aid be given to a desegregating school district?” 

These latest government actions are worrying the folks in the South who say they still have a lot of work to do to bring about the kind of integration that the Brown decision was aiming for. But the prevailing attitude at HEW is that segregation fever has been all but cured in the South while still ravaging the North. And in the words of one bureaucrat, “We have to take the bulk of our programs to where the business is.”