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The desegregation of school systems: Where the courts are headed

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Footnotes

  1. 1

    Strauder v. West Virginia, 100 U.S. 303 (1880).

  2. 2

    118 U.S. 356.

  3. 3

    163 U.S. 537 (1896).

  4. 4

    305 U.S. 337 (1938).

  5. 5

    Judicial styles change: Charles Evans Hughes, the brilliant and aristocratic Chief Justice who authored the Court's opinion inGaines, was not in the habit of reaching out for a broader ground than was necessary to sustain the holding of the Court. Only a generation later, the Court regularly accepted the challenge of attempting broad general theories of the Constitution, using particular cases more as occasions for elucidating the value structure of entire fields of constitutional law than simply as controversies in need of a final resolution. It is tempting to identify this tendency as a sort of liberal political activism and, as Richard Nixon showed in 1968, it is an issue which, when calculatingly used, can yield effective political dividends. But the conservative Burger Court has been fully as guilty of this practice as its reputedly liberal predecessor, the Warren Court, and, indeed, a good deal guiltier than the supposedly liberal, Roosevelt-dominated bench of the late 1930'5 and early 1940'5. This element of style, then, is quite clearly independent of a judge's “politics” (using that term in its usual sense).

  6. 6

    339 U.S. 629.

  7. 7

    347 U.S. 483 (1954).

  8. 8

    Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938);Sipuel v. Oklahoma, 332 U.S. 631 (1948);Sweatt v. Painter, 339 U.S. 629 (1950);McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).

  9. 9

    349 U.S. 294 (1955).

  10. 10

    It was not until the case ofCooper v. Aaron, 358 U.S. 1 (1958) that the Court took the last step in asserting its supremacy over the other branches of government by declaring that, once it had decided the meaning of a pro vision of the Constitution, “every state legislator and executive and judicial officer is solemnly committed by oath” to conform to it. This version of the Court's constitutional role is at odds with the ancient tradition that a judicial decision binds only the parties actually before the court; but it is clearly a plausible corollary to the broadened social and political role of the post-formalist judiciary and can be understood as a part of the same impulse that propelled the Court fromPlessy to Brown.

  11. 11

    Le., pursuant to Title VI of the Civil Rights Act of 1964.

  12. 12

    369 F. 2d 29 (4th Cir. 1966).

  13. 13

    391 U.S. 430 (1968).

  14. 14

    402 U.S. 1 (1971).

  15. 15

    413 U.S. 189 (1973).

  16. 16

    426 U.S. 229 (1976).

  17. 17

    Keyes v.School District No. 1, Denver, Colorado, 413 U.S. 189 (1973).

  18. 18

    __U.S.__ 97 S. Ct. 555 (1977).

  19. 19

    Milliken v.Bradley, 418 U.S. 717 (1974).

  20. 20

    427 U.S. 424 (1976).

  21. 21

    __U.S.__ 97 S.Ct. 996 (1977).

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Additional information

Daniel D. Polsby, Assistant Professor, Northwestern University Law School, received a J.D. from the University of Minnesota in 1971. He has held various positions in government and has published articles in the legal literature, including “The Death of Capital Punishment,” and “The Greening of Amerida.”

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Polsby, D.D. The desegregation of school systems: Where the courts are headed. Urban Rev 10, 136–148 (1978). https://doi.org/10.1007/BF02175383

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Keywords

  • School System