The Jurisprudence of Busing

Abstract

School desegregation decrees have become a familiar part of the contemporary judicial landscape, and yet they remain enmeshed in controversy. These decrees have engendered two types of criticism. One is addressed to the merits and asserts that segregation is not sufficiently harmful to warrant the costs of busing. Another type of criticism, and the subject of this article, is institutional. It focuses on the predicate of decision-the judgment that segregation is sufficiently harmful to warrant the remedial costs; it notes the controversial character of that judgment; and it then asserts that a court should not coerce corrective action whenever its decision rests on such an uncertain basis. This strain of institutional criticism has its roots in the attacks on Brown v. Board of Education that claimed that the decision was "sociology, not law," seizing on footnote eleven of that opinion, in which the Court referred to certain social science studies. It is a line of criticism that has gained additional momentum as the nature of the school desegregation problem has changed and as the uncertainty has become more acute. My intent is to evaluate this criticism. As a first step, and in order to locate the sources of uncertainty, I will try to structure a desegregation decision.