The Supreme Court Case That Stopped School Integration

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: What does Brown versus Board of Education mean? That's the question that I want readers to really sit with.

0:00:17 Jenessa: Segregation is part of this system of creating an us and them and creating a caste system and maintaining white supremacy. What we want to do is get rid of a caste system because what we want move towards is one nation.

0:00:37 Matt: Joining us now in Opening Arguments is my former constitutional law professor, Michelle Adams. Michelle Adams, it's been 22 years. How are you doing?

0:00:43 Jenessa: I'm doing great. It's great to see you.

0:00:45 Matt: Last time I saw you, I think I was 22 or 23, just about to take a final exam.

0:00:49 Jenessa: Well, you know, the time does go by.

0:00:51 Matt: I would like to say I got an A - in your class. I'm just going to say, I would like to that. I don't know. I would love to say that. I'm not really sure, actually. Constitutional law, of course, one of the foundational parts of law school, one of most important things that you're going to learn while you're in law school. A very different game in 2003, I think, than it is in 2025. We'll probably talk about that later. I'm going to just say upfront that you were one of my favorite professors, I really got a lot out of that class and things I still use on this show today all the time.

0:00:57 Jenessa: I did not go back and check my record. So there you go.

0:01:16 Jenessa: I appreciate that that very much. It means a lot to me.

0:01:18 Matt: I really mean it. And I was reminded why reading The Containment, the book we're going to talk about today, because this is an exceptional book. I mean, this is really, it's a great read. And I really appreciate from what I can tell, correct me if I'm wrong, but it seems like you've been writing this for everybody. This is not just for lawyers. This is not a law treatise. Sure.

0:01:32 Jenessa: That is correct. And we can talk more about that. But that was one of the things that I was deeply interested in doing and spent a lot of time trying to make sure that it was completely accessible and yet not dumbed down. I wanted to hold my pros, which is people like you, law professors, lawyers, law students, et cetera. But I also wanted to invite everyone into my law school classroom.

0:01:54 Matt: Absolutely. And also your own life. I mean, This Is Such a Personal Story. As someone from Detroit who grew up in this era, I was just as a kind of a starting point, I guess I'd love to hear and talk more about your family history, history because not only your father's amazing story as one of the, I mean, can I say one of the first black law graduates or among the first sort of crop of black law grads in Michigan? Is that right?

0:02:13 Jenessa: Yeah, I think one of the early part of the crop, I mean, there were certainly black lawyers before my father, but you start to see decent numbers during his generation.

0:02:21 Matt: 1957, he graduated, I think I saw. It's amazing. And we actually, when I was doing the research for the Brown episode, which of course I don't know anywhere near as much about Brown as you do, but that was the thing that really I took away from immediately was the way that the early fight was for graduate schools, medical schools, lawyers, and it just makes so much sense to start there. Is it fair to say he was sort of a product of that or has

0:02:37 Jenessa: I think that's right, I mean, I, you know, obviously there's a whole sweep and scope to what they were trying to do in terms of, you know, first start with the graduate schools and sort of break down Jim Crow there and then go ahead and go to K through 12. But he was certainly a beneficiary from that, that whole process. I mean he was one of just a couple of black law students in his class and, you Know, it was something that we were tremendously proud of.

0:03:05 Matt: He told you you much about that experience in law school in 1957?

0:03:07 Jenessa: He didn't say that much about it before he passed. I think it was more the product of what it was, more than sort of talking about exactly what his law school experience was like, which was that he had an incredibly rich life and he was really just part of the fabric of the Detroit legal system, right? He knew everybody downtown. He knew the judges. He was a constant presence there. I think he was very much part of that milieu.

0:03:34 Matt: Tell me a little bit about his career.

0:03:36 Jenessa: Mostly criminal law. He practiced from the late 1950s up until he died in the year 2000. He represented generations of Black Detroiters in the city's criminal courts. He did a little bit of civil work, but it was mostly criminal defense. And he was very, very good at it.

0:03:52 Matt: And I was really struck, again, just sort of thinking about how close the past really is here. If I remember correctly, your family had to buy a house where they did in Detroit through a white intermediary. Do you remember that, right?

0:04:01 Jenessa: Yeah, that's right. One of the things I talk about at the very beginning of the book. The book is set off, it's sort of got a memoir wrapper, the very beginning and the very end. And one of the ways that I invite the reader sort of into this whole incredible story is to personalize it. And One of the things I grew up with was my mother basically telling me the story of how we ended up living in Palmer Woods, which was that and that's a part of that's a really nice part of Detroit. And it was a beautiful neighborhood and a wonderful way to grow up. But you know, this is before the Fair Housing Act was passed in 1968. And so her story was that the way they were able to get the land upon which they built their dream house was through a white intermediary because they weren't able to buy that directly.

0:04:40 Matt: And that just goes directly to the thesis of your book, and honestly, the whole story of Milliken, right,

0:04:44 Jenessa: Yeah, it does. Because one of the things that I really wanted to do in the book was number one, to sort of set that off and let people begin to invite people into my life and invite them into this incredibly rich story. But also to think about sort of when we think about Jim Crow, we think About Brown, and we think about whites only drinking fountains, but we don't think so much about the North. And we maintained in the North. And I think to this day, people have a misapprehension that in fact, there wasn't governmental policy that was supporting segregation in the South. And in fact, there was.

0:05:17 Jenessa: And so one of the things I try to show in my book is that Jim Crow appeared in different kinds of regional variations. And there was the Southern regional variation. But what I talk about is the Northern regional variation of Jim Crow in the book. And that little anecdote out about my family as a way to sort of invite the reader into the story?

0:05:36 Matt: Yeah, it's really arresting. And of course, it's the title of the book is The Containment. So I think just before we get into some of the legal ideas here, for those aren't familiar, what is your conception of the containment and how this all plays out.

0:05:46 Jenessa: In order to answer that question, I think we've got to talk a little bit about the story, if we might. This is a story that goes back into the late 1960s, early 1970s. And so you're in Detroit, and you're thinking a lot about the Detroit public schools, and your thinking about the school system. And the Detroit school system at that time in the 1960s was basically separate and unequal, right? It was that was racially segregated within the Detroit school system. And then within that racial segregation were unequal schools for Black children. What's interesting, though, is that, of course, times are changing and the leadership of the Detroit Board of Education is changing. In the late 1960s going into the early 1970s, the leadership of the board has changed and it's more interested in addressing that problem. And the question is just how to do it. And so you get into some, there's some complicated sort of machinations, But for our purposes, understand that the Detroit School Board decided that it was going to attempt to integrate, sort of adopted a modest integration plan that would have meant for the first time that a small number of students in the Detroit high schools, white students would be going to black schools and black students would Be going to white schools in the the Detroit high school system. This was sort of sprung on folks in Detroit in a way that probably wasn't the most politically best way to do it, but it was the right thing to do.

0:07:07 Jenessa: And there's a backlash to that.

0:07:10 Matt: And this was the first voluntary plan of this kind that wasn't court ordered. Is that right?

0:07:13 Jenessa: Yeah, I mean, that's the thing that's really important to focus on is that it's not because there's court order. It's not because There's some sort of something from on high that is requiring the school system to do this. The school system decides voluntarily that it that it's the right Thing to do to begin to try to integrate the schools. And that has a lot to do with the leadership of the board.

0:07:30 Matt: That's right. Yeah. And I think it's Remus Robinson, is it?

0:07:32 Jenessa: Remus Robinson is the first Black member of the Detroit School Board, and he came onto the board in 1955. But you have sort of more liberal members of the board sort of joining in. And sort of by the time that all the events take place in my book, Abraham Swerdling becomes the chair of the Board, and he's quite a proponent of integration.

0:07:49 Matt: The narrative of this book and the way that you tell the story, and I know that I'm not the only one to make this comparison, really does remind me of Common Grounds, which is obviously a fantastic book about Boston busing. And when I ask about Boston in a few minutes here, but just setting these characters up.

0:08:01 Jenessa: The larger question was sort of the containment. And so what I'm going to give you is the background to sort of how we get to this concept of the containment. So we've got this integration plan. It's adopted by the school board. The reaction in Detroit by white parents is quite furious, most of them. And then the state of Michigan gets involved. And effectively what happens is that the state passes a law that says that the Detroit school board may not adopt an integration plan. And that's when the NAACP, the Detroit branch gets interested because it says, they basically say, well, that feels kind of Southern. Wait, we were going to integrate. And dann the state passed a law saying that we can't, which basically effectively says you must segregate. That feels like a Brown versus versus Board of Education violation.

0:08:43 Jenessa: And that is sort of what gets us into federal court is the idea of challenging that law that basically said no integration in the city of Detroit. But the case becomes much broader than that. And not just the question of whether the state law violated Brown, but in fact, proving that Detroit was running a separate and unequal school system. And ultimately, what the lawyers do in the NAACP is they decide, in order to be able to prove that to show that there's been a constitutional violation? Remember, we're talking about Jim Crow in the North, the Northern regional variation of Jim Crow, where there's no law that requires students to be segregated. In fact, there's a law that forbids it. How do we prove that? And what they realize is that in previous lower court cases, defendants had been sued along the same lines in different areas. And basically what the defendant board said, or the defendant school authority said was, well, you know, we have a neighborhood school rule or we're citing schools schools and the neighborhoods. The fact that the neighborhoods are segregated has got nothing to do with us. And so courts had basically bought that argument. And so what they do that's so important in the Detroit litigation is they try a housing case within a school case.

0:09:54 Jenessa: And so you've got this masterful 41 -day trial that has housing within schools. And I am getting to the point of answering your question about the containment.

0:10:02 Matt: No, this is good.

0:10:03 Jenessa: So what they're trying to do is strip the veneer, strip the bark off this idea of neutrality that the school authorities could simply just rely on underlying residential segregation and say, well, it's not our fault, and we didn't know about it, and it has nothing to do with us. And instead, what they basically showed was that it's all government policy, right? Whether we're talking about student assignment policies, whether we're talking about the student feeder rules, whether we'RE talking about school location, whether WE'RE talking abOut neighborhood school rules, when you drill down and look at the reason why the neighborhoods are so segregated, that's government policy too. And so that's what they show. And the containment is a big part of the housing portion of the school case.

0:10:47 Matt: I was really struck by the way you talked about the most powerful piece of evidence at trial, just being a map of Detroit, just being something that Judge Roth had to sit there and look at all the way through the trial, right? Because when you looked at the map, everything that you're talking about comes out, right? Can you explain how that is so visually striking?

0:11:02 Jenessa: Sure. So the idea that the picture is worth a thousand words, right? So one of the sort of brilliant things that the plaintiff's lawyers did was we have census every 10 years. Andso there was recent census data. So we had the census data from 1940, 1950, 1960, 1970 was available in that case. AndSo each of those census overlays were were presented on this big map, the judge kind of looked at all the time. And what it basically showed was that black folks in Detroit were sort of all clumped together in the center city. And then every 10 years, they kind of break out of that clump and then be held and then break out of that club a little bit further. And then by 1970, the clump had basically gone up to the jurisdictional boundaries of the city line in Detroit, but you couldn't get past eight mile, you couldn'T go into the suburbs. And so the reason why this mattered for the judge is because because the judge basically just thought, well, people are living where they live because they want to live with folks who look like them and who share the same sort of cultural background. And then it occurred to him, well what if black folks don't have a choice? What if they wanted to live in different portions of the city of Detroit but they couldn't? And that was the reality, right? For a variety of reasons having to do with racially restrictive covenants that, although overturned in Shelley v. Kramer in 1948, continued to be reported by a local title company for a long period after that because of segregated public housing programs, because of the federal government and redlining and FHA policies and the federal homeowners loan corporation policies and security maps because of white homeowners associations that basically threatened violence if blacks moved in and then sort of the city looking the other way there. There are racially separate brokers associations that were effectively endorsed by the state of Michigan. And this is well before the internet and Zillow. So you can't really sell a house to someone if you don't know that it's for sale and you can'T get access to the listing if you're not in the appropriate real estate association. So basically black folks aren't even finding out out about where housing vacancies are. So there's a whole description of this. And the containment was the idea of containing Blacks in particular residential areas, and then the school authorities building a structure of segregated schools on top of that. And so it's the interdependence of the school and housing policies that ended up creating the situation that we had in Detroit. And that was something that the judge who, although he started out being incredibly hostile to the plaintiff's claims and basically didn't believe them over time, sort of got an education in this case. So the containment is really what that is. And the reason why the book is called The Containment, not just because what they showed in the Detroit case, but because Detroit, although I love it and I'm from there, it's not unique, right? This was the case in most northern and western metropolitan areas in the United States. Right.

0:14:01 Matt: Right. And from what I understand, and I wasn't around at the time, but it gave the North a sort of moral superiority of we don't have those kinds of laws, right. And that, of course, was the entire fight in Brown. It was a very straightforward, for all of the other complexities of Brown, it was really a very straight forward look at, is this a law that is legal or not?

0:14:16 Matt: Whereas we're talking, of course, about a web of interconnected policies that you've just listed off that we could probably do ours just on all those policies you just mentioned.

0:14:16 Jenessa: Yeah,

0:14:24 Matt: I guess, actually, just to bring it around just for a moment to your own family story, I think I might have glossed over that a little too much. What does that mean? And why would a white intermediary have to, just to explain this directly to the audience?

0:14:24 Jenessa: The The question is, how can you buy the land if someone won't sell it to you because of race, right? You can't force someone to give you land, right, right. And before the Fair Housing Act in 1968, if you didn't want to sell to somebody because of race, that was perfectly legal.

0:14:44 Matt: And they're legally allowed to do that. Sure, right,

0:14:53 Jenessa: Your workaround for that would be to have the sale go to a white intermediary. And then once there's an intermediary, that person's open to selling you the land, and then you buy it. But of course, this not only is this deeply problematic from a moral perspective, it also raises costs, right?

0:15:09 Matt: Sure, sure.

0:15:09 Jenessa: Because it raises transaction costs, and you got to pay the white intermediary and you've got to be in a position to be able to do that, right. So this goes to deeper questions about black wealth accumulation and how difficult that was. Because Because again, and we all know this now, that housing is a central pillar of wealth creation.

0:15:24 Jenessa: And if it's difficult for you to be able to buy a home or if you're buying homes where the market is constrained because of race, you're not going to be able to create wealth in the same kind of way if you have dual housing markets. So that's one of the reasons why I was so attracted to the project is because of the relationship between schools and housing. And because it was also a story that I think hadn't been told in this particular kind of way.

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0:15:49 Matt: For most Americans, obviously, Brown is the landmark case that it is, but you're making the point about the 25 years after that and Milliken v. Bradley, which we'll get to. On my side, for what it's worth, I've been a Boston resident for 20 years. I've gotten very interested in the history of busing in Boston. And obviously, you know much more about that than I do at this point. But I was somewhat radicalized at this point just by looking at the University of Richmond's mapping inequality website, just going through my own neighborhood and my own region. I live in East Boston, just historically an immigrant neighborhood. And there's all kinds of language in there that they've taken from primary sources about how it's declining because of the immigrants and how they're going to try how to contain them. But just looking at, you know, obviously famously Boston, one of the most de facto segregated cities in the North, right? And I think most people probably are somewhat familiar with the Boston busing fight because it was such a big public battle in a city that, as I understand it, was much more racially diverse than Detroit at the time. Boston had a much larger white population. I'd be interested to know your impression of sort of the difference between the Detroit litigation and what happened, how it played out in Boston.

0:16:47 Jenessa: I don't know that I'm going to be able to answer that with the level of specificity that you might want, just because I was so consumed with focusing on Detroit. I'm obviously aware of what happened in Boston, but I think that to answer the question, I think you'd need to be able to do a comparative deep dive into the litigation of both places. And I would demur from opining on that, except to say that what's really interesting is you're having both of these situations happening almost around the exact same time. Yeah.

0:17:13 Matt: Right. And with very similar arguments and different populations. The The overarching thing, though, is, you know, this sort of legal fiction of the difference between de jure segregation, where you can see it's written into law, where the North can feel morally supportive because we don't have Jim Carlow's up here, and the de jures, which is what we're talking about here, this web of policies. And this is the first time, as I understand it, and these arguments have been made in a federal court to success.

0:17:37 Jenessa: I don't know if this is the very first time. I think that Detroit litigation is really important for the following reason, that this is the most built out housing case within a school case. And that's, I think probably the contender would be the Richmond case. But I think that the level of detail around housing is so significant in that litigation. And then certainly the remedy, which we'll talk about, is the the broadest metropolitan remedy that we would have had in a northern location. And so those are the reasons why I think it's so important. But let's go back and talk a little bit about something that you mentioned, which is the distinction between de jure and de facto, because I think this causes confusion even today. So you're right, de jurez means by law, right? And so that is the classic way when we close our eyes and we think about Jim Crow, we think About literally the black and white water fountains, right by law. Right. De facto is basically there's segregation and we don't know why, right?

0:18:12 Matt: Please. Just in the water.

0:18:36 Jenessa: It's just, there's a racial imbalance. How did that happen? People happen to live where they happen to live. How does that happen? The schools happen to be 97 % black or 97 % white. How did that happen. We don't know why because there's no law that requires it. And I think that's really confusing to folks. And I do think the point that you make about moral superiority is true. And someone like Justice Powell, I think was really concerned about this, that that in a lot of ways, this the white self was taking it on the chin for being sort of obvious in doing things in a way that the North was more secretive about it in covert and was doing much of the same thing. And I think that part is really difficult for people to accept. AndI think there's a lot of resistance to it, right? It's one thing to say, well, I don't necessarily like the remedy or the remedy went too far, or we can have discussions about that. But even before we get to the question of remedy, there's the question of, has there been a constitutional violation? Has Brown been violated?

0:19:32 Jenessa: The idea is Brown is violated when school authorities take certain actions that might be race neutral with an intent to segregate. And it turns out that that was really, really, really widespread. I am afraid that I have to report that was widespread across our country. And there's great resistance to acknowledging that. If my book does nothing else, but to sort of show people that that has to be acknowledged, it will have been an enormous success, right? So that is sort of breaking down the myth of de facto. One of the arguments I make in the book is that effectively it was all de jure. And you can argue about different kinds of policies and sort of to what extent those policies actually created segregation, but there was an interlocking web of policies that generated racial segregation that were created by governmental governmental actors. Was there custom as well? Of course there was, right? But to get on the customs line and say it was just all custom is just factually not true. So one of the big things that had to happen was they had to prove that there was a Brown violation to establish constitutional liability, and they did that in the Detroit case.

0:20:44 Matt: A very long trial with a lot of evidence and a tremendous record, right? It's hundreds of hours, not to get too far ahead, but just the fact that the Supreme Court essentially ignored that evidence, as I understand it, and did not really address it.

0:20:54 Jenessa: Yeah, so as we get to the Supreme Court, the plaintiffs win in the trial court. This is, again, just focusing on liability liability now. The plaintiffs are upheld a couple of times in the Sixth Circuit Court of Appeals. I think what should we do? Let's go back and talk about remedy first, and then we'll explain this. So we have the idea that, you know, we have to establish liability before we can get to remedy. And the judge said, I see liability here on the part of the school authorities, on the part of state and local school authorities. Why state and local, right? The case is brought against a variety of state and local authorities. In Michigan, education is a state function. All of the school districts are state agencies, right? And there is evidence that the state itself through its state authorities has been involved in intentionally segregating Detroit schools and treating them differently, say, than suburban schools in terms of transportation policies, for sure. There's establishment of liability and the question becomes, well, what's the remedy for that, right. And if you'll remember, go back into thinking about our constitutional law class, Brown was a liability case. Brown, too, was the remedy case. And that was the famous all -deliberate speed case, which, of course, is an oxymoron. The question becomes, well, what's the remedy? It takes the Supreme Court a while to sort of set out the parameters of what appropriate remedies should be for a Brown violation. It doesn't really happen until 68 in the Green case, 71 in the Swan case, right? And what's interesting is that's just happening, and it's happening at the exact same time that we're litigating the Detroit case. What's key is that we don't really get a case from the Supreme Court talking about establishing liability in a northern western jurisdiction until 1973 in the Keyes case. So all of this is happening and this puts sort of like the lawyering on the front burner because the lawyers are doing this without having adequate guidance from the supreme court. So they establish liability. Question becomes what the remedy is going to be. The judge, of course, had been somewhat radicalized by the maps and had heard lots of information that sort of crossed school district lines and basically understood that there was an all -white suburban scenario and a multi -race city scenario, but that the number of African -Americans attending the Detroit schools was increasing. Decreasing, the number of white folks in the city of Detroit is decreasing. And because he's got state and local authorities in the dock, he says, we need to have a metropolitan remedy. And it's a sweeping metropolitan remedy because he is interested in having meaningful desegregation. He reads Brown 1 and Brown 2 and says that's what the Constitution requires when there's a constitutional violation. And so basically he sets up a metropolitan remedy that would have affected about 50 total school districts and about about 800 ,000 or so school children. This is massive, pretty

0:21:08 Matt: Yeah, please. Metropolitan in this case being, of course, all of the suburbs around Detroit.

0:23:38 Jenessa: Much, not all of them, but it would have deeply affected Southeastern Michigan as a region. Sort of knitting together three, there's a tri -county area and knitting together that tri -country area when it came to educational policy.

0:23:53 Matt: And this had never been done before.

0:23:54 Jenessa: Not at this scale, no. And then the other reason to think about it is that there's municipalities are different in the South than they are in the North. And in the the North, there tend to be many, many more smaller school districts, whereas in the South, you tend to have county -wide school districts. So some of this problem isn't as prevalent in the South as it is in the North. And so you basically, if you're going to get meaningful desegregation, you're gonna be crossing lots of school district lines, and it's lots of school district line, right? And so the issue that really goes to the Supreme Court is, is the remedy consistent with the underlying constitutional violation, right, that's the the issue that gets to the Supreme Court. And so this whole thing got started by your question about, will they ignore the trial? And I guess that depends on your view. I think they did. If you frame the constitutional violation in the narrowest possible way, which is the constitutional violation took place within the jurisdictional boundaries of the city of Detroit, then you can reach the conclusion that that's where the remedy has to be too. So part of this as lawyers, we know that the question of framing often is outcome determinative. So once the case is framed as a constitutional violation within the city of Detroit, then it becomes easy to say, well, that's where the remedy should be. And so when the question is, well did they ignore all that evidence, I think you could make the argument that they didn't because the evidence that was relevant went to the underlying constitutional violation. Violation.

0:25:21 Jenessa: And it's true that the lawyers weren't trying to prove individualized constitutional violations in every single suburban school district because they didn't think they needed to because the equal protection clause extends to states, not to political subdivisions. They're up. There's a way that you can understand Milliken as being correctly decided. What I try to do in my book is to explain why I disagree with that. I try To take readers along and sort of go through sort of all the decisions the lawyers made and what's happening politically and what'S happening socially and what's happening on the Supreme Court, et cetera, et cetera. I think that the trial court didn't ignore that because the trial Court was looking out at all the evidence that had come in and the trial. Court gave an expansive definition of the notion of what Brown meant and ultimately that's the question that I want readers to really sit with

0:25:21 Matt: 20 years

0:26:11 Jenessa: Is what does Brown versus Board of Education mean, right? That's really the issue. What does it mean? Yeah. In

0:26:19 Matt: Later in Milliken, I hope everyone in the United States at some point has heard about Brown v. Board, but I think very few people have heard of Milliken. And you make the point, I think, very convincingly that Milliken is essentially the end of Brown. Sure.

0:26:31 Jenessa: In a lot of ways, I think that's right. I mean, I, I think that there are other contenders for the throne. Yeah.

0:26:36 Matt: But really just kind of one of the nails, the big nails.

0:26:38 Jenessa: Yeah, it's, and it's also, it's a hinge point. It's a hinged point in our history because of the timing, because of the political, what's happening politically, but it's a hinge plane in terms of the promise of Brown, right? And I talk about this in our, in our constitutional law class is sort of different readings of Brown versus word of education. And so one question that folks who maybe haven't had an opportunity to read Brown in a while might say, well, gosh, how can you have different interpretations? What did it say? And I think what's so interesting for a case that's so short, there's many different ways to read it. And there are many different kinds of rational interpretations of Brown. So I'm not making the argument that the interpretation of Brown that the court gave was crazy. I think it was incorrect. And that's different.

0:27:22 Jenessa: And I Think we can have an argument about that. But I think Brown is open to a variety of different interpretations. And what we've gotten since Milliken and certainly more recently is the narrowest possible interpretation of Brown. And I think that's unfortunate.

0:27:36 Matt: No, absolutely. And of course, Brown is near the very beginning of the Warren Court era, and Milliken is in the Burger Court just a few years after Earl Warren has stepped down. I guess this is not probably very interesting counterfactual, I think. What would have the Warren Court have done with Millikan?

0:27:52 Jenessa: Well, I think the way to answer that is look at Justice Marshall's dissent. There's two possibilities. One is just simply it's 5 -4 going or 6 -3 or whatever, maybe 8 -1 going the other way, right? Because Justice Stewart, who was in the five was a holdover from the Warren court. We just basically uphold the remedy and then see what happens. Another possibility would have been, and I think this was the position that Solicitor General Bork took, which would have been to send the case back with different kinds of instructions to sort of retry it. You could have retried it and sort of, and ask them to say, put on evidence in a representative number of suburban school districts. You don't have to do all 50, look at one or two, and then let that act as a basis for a broader remedial plan, right? And there's some evidence of that. And you think about the Keys case in 73, where in terms of liability, it's like, if you can show that there's been intentional segregation in a portion of the city, in one particular neighborhood, then we're going to let that be prima facie evidence that there has been intentional segregation with respect to the rest of the city. You don't have to prove it with respect to all 50 individual school districts, but maybe show a representative sample and then go back and show exactly why, do a mini trial on exactly why what happened in the suburbs. But don't put the level of burden so high that it becomes basically, you take the wind out of the sails out of doing these kinds of cases at all. Or you could also just flip the defaults entirely and say, why should the plaintiffs have to have have proven anything because we're going to take judicial notice of the fact that this was happening across the country. And so put the burden on the suburban school districts if they want to opt out of a metropolitan desegregation plan to show that in fact, throughout this entire period, we were doing all these wonderful things to try to integrate our schools. And so consequently, we shouldn't be part of the remedy. I mean, there's a variety of different ways you could have done this. But what the Supreme Court did was the narrowest possible reading of the promise of Brown, and then it established the highest possible bar to be able to

0:30:00 Jenessa: Support a metropolitan desegregation remedy. And I think the combination of those two things was wrong.

0:30:07 Matt: To spell that out, I just want to make sure you get the chance and listeners understand how significant this is. What exactly do you mean when you say that Millikan was the end of the promise of Brown.

0:30:16 Jenessa: This requires us to go back and think about what Brown said. And that's the part that's really tricky, right? You could read Brown to say that the liability turned on the fact that Southern school districts were using racial classification schemes to segregate children. Once they stopped doing that, then Brown is basically cured. And that by extension, that the equal protection clause, which was the core of Brown, is really about just rooting out racial classification schemes. When the government uses a racial classification scheme, like where it says whites only drinking fountain, ah, that's a Brown violation. That's an equal protection violation. And the government has to stop doingthat. And once it stops doing that boom, that is the end of the responsibility. Or you could read Brown much more broadly to say, gosh, you know, why were they using racial classification schemes in the first place? Well, segregation is part of this system of sort of creating an us and them and creating a caste system and maintaining white supremacy. And so what we want to do is get rid of a caste System because what we want to move towards is one nation. And we can have arguments about sort of what the remedy should be for that. And I'm really open to hearing that, right? But you could read Brown as saying and there's a really strong integration theme running in Brown too, that what we really want to do is create the possibility of us functioning as one nation rather than two. And if you read Brown from that perspective, then Judge Roth's ruling, metropolitan ruling in the Milliken case was correct. But if you reading Brown narrowly, the promise of Brown is really just to read out racial classification schemes and that it's really limited, then his remedy sort of was too broad for the underlying constitutional violation. But the violation was just in Detroit and that's where the remedy ought to be too. And let's get rid of that and let's not have the federal district courts sort of lording over local school districts and let'S get rid OF that as quickly as possible. And you have other cases in the Southern context that are happening sort of post -Milliken that that basically say, you know, let's move to what's called unitary status, bringing the formerly dual school systems together as quickly as possible. And then let's get rid of federal court oversight. I think it really turns on sort of what your vision of Brown is. Is Brown a narrow sort of racial classification case? Or is Brown a broad sort of like, let'S try to have one nation rather than two case and get rid and try to eradicate a caste system case?

0:30:33 Matt: In

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0:34:47 Ad: [Ad break 2 — ad music]

0:34:47 Matt: Our episode on Brown, we were focused on the science, which I think is really interesting, the way that social science was used by some of the first, I think the first black Columbia graduates coming back into their communities and analyzing social science. I don't have to tell you about it, but that to me, just the tenor and the sort of the spiritual part of Brown is that idea that you're talking about, about that we need a society where kids can grow up together and that their self -image is really going to be governed by these early things. And I have to think that all of the de jure things we're talking talking about with housing segregation and even having trouble getting a mortgage and all these homeowners associations, all these other things, it all goes to the same heart of things, right? That kids are going to be growing up in segregated communities. So I can't see it another way personally.

0:35:26 Jenessa: I agree with you. I mean, I think that one of the reasons I wanted to write the book was to have an opportunity to go out and talk to people about this because everything's been so demagogued and there's so much overhang. But to go back to sort of first principles, and I had an opportunity to do that in this book. I mean, one of the things I talk a lot about when I go around the country and chat about the book is I just ask, what kind of society do we want to have?

0:35:48 Jenessa: What kind of society do you want to be? And I think that's a really good question. I think it's a good question to have. I understand that not everybody agrees about this. And I'm really open to having those conversations. I'm really open to engaging people who might not agree with me on every little piece of my analysis. But I do think it's useful to think about what kind of society we really want to have. And do we think that it's possible to have a multiracial democracy with children growing up in racially homogenous settings? Social science suggests the answer to that is no.

0:36:18 Matt: Actually

0:36:18 Jenessa: And that science has been around for quite a long period of time. And what we're trying to do here in the country is a very difficult thing. I talk about the black -white experience because that's when this moment is, but it's much more complicated than that. What are the things we need? What are the minimum indicia that we need to have to have a functioning multiracial democracy? If we're all on board with that, and that's a question, but if that's what we want, then what would we need to have that be a success? And so those are the kind of conversations I think we need to have.

0:36:51 Matt: Brings me to one of the meta questions I really wanted to get into with you. It's a theme in your book as well, but in my research for Brown, I was struck by the debate within the NAACP about whether they were going to pursue desegregation or whether they're going to pursue equality. And I hadn't really thought of those as different things, But Thurgood Marshall won the argument, as I understand it, at the end of the day with this push for desegregation that ended with Brown. And I guess just as another sort of counterfactual, and again, you can let me know if this is too speculative or if this isn't something you can't really get into, but I'm just wondering what that world would have looked like. Because there were a lot of black leaders, and in Detroit as I understand it, who did not want to integrate and thought they were able to run their own schools and did not have to have the hassle of all of this.

0:37:28 Jenessa: And I spent a lot of time with that in the book on that. Absolutely.

0:37:31 Matt: They kind of brought that question back to mind because this is just not something I have enough knowledge or understanding or background in to know, have any idea, what that would have looked like or if there is some other way to do it. And I'm just wondering what your thoughts are on that.

0:37:42 Jenessa: I think that that conversation continues. I think there's always been a debate. One of the many things that's so great about this project is that, you know, we explode the myth that there's one Black community, right? There's extraordinary debate and conversation and diversity in Black political thought. And you see a little bit of that in my book. And I think that's a feature, not a bug. I have a particular view about that. But one of the reasons why I do, since I know what my view is, I wanted to make sure that it was like almost like a fairness doctrine, right?

0:38:13 Matt: Sure.

0:38:13 Jenessa: I wanted to make sure that there was equal time to all the to this sort of this, this incredibly important debate, and I hope I hope did it justice. So it counterfactual is hard for me to be able to assess, you know, counterfactually always are, I guess the thing that I would focus on is this, when we look at our empirical data today, what do we know, we know that that black children closed the achievement gap most aggressively during the period of time in the South when there was the most aggressive enforcement of desegregation remedies. We had that information from Professor Rucker Johnson's work, and then there was an argument, well, maybe his work isn't robust enough because there's not enough data. And then it was replicated, I think, just a couple of years ago in a much bigger, larger longitudinal study. And the larger longitudinal study basically showed that, you know, Black students who were exposed to desegregation from the earliest possible grades, the more you got, the better it was. The more there's more treatment, the greater the outcome. Closed achievement gaps, graduated higher rates, had better economic outcomes, etc., etc. et cetera. And I think that continues to be true. So there's that. And you can ask, well, sort of why might that be? One of the reasons that Johnson points to is sort of like the leveling up of economic resources. So once the, in the South, like once the school districts knew, there's no getting around this, you got to do it, right? If white kids and black kids are going to go to the same schools, they don't want to have the white children's standard of education and resources and teachers teaching and certification and number of school days and what the school books look like and are they old, et cetera. So they level black students up, right? So one of the theories behind integration is just a simple green follows white. On the counterfactual, you'd have to believe that the political system was working such that all black schools would be able to shake the trees

0:40:16 Jenessa: And get all of the economics, all of the economic benefits they They would have gotten if they had been sitting in classrooms and in schools with white children who, because of the political process and different disenfranchisement and all that, are able to sort of make elected officials more responsive to their needs. So you have to have a you haveと have a theory of political representation that suggests that that's a problem right there. And I'll leave it to other people who thought more about the politics than I have to weigh in on that. But you'd have to believe that. Right.

0:40:47 Jenessa: The money has to come from somewhere. Number one. Number two, even if you could do all that, the reason why I'm such a strong proponent of desegregation slash integration is because it's a twofer. Not only did black children benefit it, but white children did too. And our society does too. I'm really passionate about democracy. And I think that from a perspective of American citizenship and the inner workings of strengthening our democracy, having children go to school together under conditions of equality from the earliest possible grades tends to strengthen our democracy because the social science tends to suggest that when children go go to separate schools and never interact until maybe college or later, that's where stereotype grows. That's where hostility grows. That's were other end grows, right? So, and I'm not saying it's magic in desegregated schools, it's not, but at least creates the opportunity for these things to happen. You have the opportunity for kids to be on the same sports teams. You have to the opportunity, for kids, to be in the same debate club. You have opportunity for all these things happen. Happen, then you got to get in schools and make sure they happen.

0:41:55 Jenessa: But that tends to break down stereotypes and you get the money. So that, you know, I'm practical and I'm also, I mean, I'm, I guess that's the argument. And if people want to then make the argument that no, no, no, we should be doing things differently. And we should just focus on equalization. That's great. I think they should make the agreement. But as I say, at the end of the book, It's like burdens on them to make that argument in a democracy, the burdens on them to made that argument. And for so long, the burden's been on the people who are trying to advance, uh, the sort of democratic ideals that are consistent with, with desegregation, that we had to solve all the problems. We had to try tracking. We had this all, it is everything. And it's like, I'm just making this particular argument and I sort of kind of reject the notion that you didn't make it, that I've got to solve every every single problem in education in our society in order to support this remedy. I think it is a step in the right direction. And it's one that is incredibly powerful.

0:42:58 Matt: Yeah. Yeah. And I, again, as a white guy who grew up in the Northwest, I don't really have a lot of personal background in any of this, but everything you're saying certainly makes sense to me. And I found the book to be a very convincing argument in a lot of other directions too. So what happened in Detroit after Milliken? What was the fallout?

0:43:11 Jenessa: You know exactly what the trial judge didn't want, which was a Detroit only desegregation order. And then the question becomes, how are you going to desegregate Detroit? And you had, you had increasing numbers of whites who left, right? And I think that lasted until what, mid to late 1980s. And Detroit sort of went on a path. And again, I want to be very clear. I'm not making a causal argument that because of Milliken, Detroit went into bankruptcy and all this other kind of stuff. I think things would have been different if Judge Roth's order had been upheld.

0:43:44 Matt: Sure. No, I just socially, I mean, obviously I assume that from what I know, the audio industry had a lot to do with Detroit going to bankruptcy. Sure.

0:43:50 Jenessa: I mean, yeah, there's so many different, there's the auto industry, there's what's happening to just blue collar manufacturing jobs more generally. There's all different kinds of issues, but this is a data point. This is a a moment, I'm very careful not to over -claim in the book. I'm simply saying that I think things would have been better if we'd gone in a different direction.

0:44:00 Matt: Couldn't't argue with that.

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0:44:14 Matt: We have a few minutes here. I just wanted to ask you, just because since the last time we saw each other was in your constitutional law class. How is it going teaching constitutional law in 2025?

0:44:22 Jenessa: Well, I am on sabbatical this year.

0:44:24 Matt: Okay. Good time.

0:44:25 Jenessa: Yeah, I'm on sabbatical this fall, but I've been teaching at the University of Michigan for three years, which has been wonderful. I had a wonderful time in Seton Hall and a wonderful time at Cardozo and now I'm at Michigan. And it's been, I just want to say it's been a dream career to be able to teach students who, like yourself, who have gone out into the the world and have done extraordinary things. So I thank you so much for asking me to be on the podcast. I think teaching constitutional law is, it's always been a challenge because I think that you've got to get across the idea that there is doctrine there and the idea that there's law there. And I still believe that there is, right? There are rules. There is doctrine. There are arguments. And what we focus on in the constitutional law class is how to make arguments based upon the doctrine that came before and to be able to anticipate the doctrine that will come. And that's difficult because it requires understanding the scope of arguments over time, as well as understanding the current Supreme Court and making calculated guesses as to what kinds of arguments will appeal to that court. I think that folks are very, very much in a moment of saying, well, the court is very political. And I guess the court has always been political.

0:44:27 Matt: Well -timed. Sure.

0:45:36 Jenessa: I think this is not unusual, but I do think that what they're doing there is not just politics, right? That there is a thing called constitutional law. And the more of us who lose faith in that and to detach from that, the less legitimacy our democratic system, I'm not talking about specific courts and specific justices, but our democratic system will have. I think that what I've said to students and I will continue to say is, is that the court's been responsive to politics because the court is a lagging indicator and the political actors have control over who is on the Supreme Court. So to think that it is not responsive to politics wouldn't make any sense given the fact that they go through a political process to get onto the court. To the extent that folks are concerned about the idea that this court is unduly political, the way to handle that is to double down on democracy and to be involved in the political process. Because when we vote for the president and when we vot for members of the the Senate. We are, by extension, voting for the Supreme Court. And that is just a reality. There's guardrails. Hopefully they hold. There is doctrine. There are arguments. I still believe in the idea that we have an executive and a legislative branch that are under law and that the court is supposed to enforce the rule of law and act as an independent check on that. And I'm also am understanding sort of what's happening today. And that's, I think, the best way to that I would put it.

0:47:08 Matt: Okay. I couldn't agree more. And that's the position I've taken certainly since January, that we have to continue to assume that the rule of law is in place and we have to act like it or it won't be. That we have to agree on that and we have to continue to push these arguments. And listeners, many listeners have asked me how I can be so optimistic that in the end that the forces of good and that the rule of law can win. And I guess maybe we're finding out who to blame. I did. I spent a lot of time in your class, and I really appreciate the way that you've always thought about this as well. I've always had a very optimistic view, not necessarily of the Supreme Court, but of the way the things can come out. But this is just a fascinating conversation just to check back after. I mean, when I was in law school, Lawrence v. Texas came down, I think just shortly after I took your class, right? And this sort of great moment of realizing that we could start to see real civil rights change in our lifetimes.

0:47:54 Matt: And obviously, all kinds of other Supreme Court victories have come down between the time that we last talked. But I guess I don't remember in 2003, when we were talking about this last, the Supreme Court's aggressive use of the shadow docket and the way that it's been using it now. That's been my real concern in all of this.

0:48:10 Jenessa: I think the emergency docket was not a thing in the way that it is today. Have you had Steve Vladek on your program? Yeah.

0:48:14 Matt: We have a few times. Yeah. No better person to talk to about him.

0:48:18 Jenessa: So Steve is the man when it comes to talking about the shadow docket. And I would encourage your listeners to read his book. The book is terrific and it's really, really useful. I guess I would say this, though. I've talked to thousands of people this year in a way that I wouldn't have if I hadn't, if the book weren't out, right? I I would continue to do the work with my students that I love. But when I've talked to people, it's been really, really important. I think folks feel demoralized. And I talk about democracy as much as I talk about the specifics of this case, which is that this is something that we have to commit to as a people and as a citizenry. And democracy isn't I win all the time. It isn't the Democrats win and the Republicans lose. Lose. It's committing to a process where we can debate our differences without using violence and to have a process Where people feel that the process itself is fair to resolve conflict. I am incredibly, incredibly committed to that process because I recognize that not everybody agrees with me. I also recognize that I think most Americans understand that we have something something that is very special here that needs to continue. So there are bad actors, right? But the underlying question is, and the underlying most important thing is, a process through which we can resolve our differences without using violence. And democracy, what did Churchill say? It's the worst form of government except for all of the rest. Yes. And that is true. You know, You know, Matt, your hopefulness or optimism is something that I share and people often find that to be surprising for me. But I still believe that the American people are on board with that. From my personal policy perspective, we're gonna lose and we have lost, but I don't think we're going to lose the whole thing.

0:50:13 Matt: I'm with you. And I especially appreciate the perspective from someone who literally wrote the book about a case in which a trial judge had a change of heart after seeing all of us and his conservative Supreme Court reversed him. But again, again, these are long fights and they take a long time.

0:50:27 Matt: I do continue to believe in the arc of history. So I really, this is such a wonderful conversation. I really appreciate you coming on today.

0:50:32 Jenessa: They do. It's my pleasure.

0:50:33 Matt: I've really been looking forward to this one. And I'm not going to say it's not one of the more anxiety provoking interviews that I've had to prepare for in a while, but it's just really fun to be able to talk one-on one almost immediately. Thank you very much.

0:50:44 Jenessa: I hope your anxiety has been reduced. Great. Other

0:50:48 Matt: Anything else we didn't get to? Any thoughts you had today?

0:50:50 Jenessa: Than to continue to invest in our democracy, no matter where you are across the political spectrum.

0:50:56 Matt: Love it. Thank you so much.

0:50:57 Jenessa: It's awesome.