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1981 Wis. L. Rev. 924 (1981)
Legalism and Politics in School Desegregation

handle is hein.journals/wlr1981 and id is 936 raw text is: LEGALISM AND POLITICS IN SCHOOL DESEGREGATION DAVID L. KIRP* INTRODUCTION How has race and schooling policy been shaped in this soci- ety? The conventional wisdom sharply demarcates both the set- ting and the style of decisionmaking. While most policy issues find their resolution in the give-and-take of the pluralist politi- cal arena, race is thought to be peculiarly the province of the judiciary. Similarly, while negotiation and compromise are said to characterize the typical process of policy resolution, racial questions are routinely understood to be defined in constitu- tional or ideological terms; in either instance, principle and pre- cedent are substituted for bargaining and brokering.' These perceptions describe only a partial truth. The federal judiciary indeed has played, a vital role in charting the course of American race and schooling policy. It took a decision of the United States Supreme Court to place the matter squarely on the national agenda. Except for a brief interval during the mid- 1960's, when the coordinate branches of the federal government acted in concert, the courts have remained a dominant influence.' * Professor, Graduate School of Public Policy, and Lecturer, School of Law, Univer- sity of California, Berkeley; Coordinator, Program in Law, Institute for Research on Educational Finance and Governance, Stanford University. Research for an earlier version of this article was supported by a grant from the National Institute of Education. A preliminary draft was presented at a colloquium sponsored by the Harvard Graduate School of Education. The helpful comments of the participants, and of William Clune, Robert Kagan, and Mary von Euler, are gratefully acknowledged. Excerpts from this article will appear in D. KIRP, JUST SCHOOLS: THE IDEA OF RACIAL EQUALITY IN AMERICAN EDUCATION (forthcoming in 1982). 1. See generally L. GRAGLIA, DISASTER BY DECREE: THE SUPREME COURT DECISIONS ON RACE AND THE SCHOOLS (1976); A. HOLDEN, THE BUS STOPS HERE: A STUDY OF DESEG- REGATION IN THREE CITIES (1974); LIMITS OF JUSTICE: THE COURTS' ROLE IN SCHOOL DE- SEGREGATION (H. Kalodner & J. Fishman ed. 1978); H. RODGERS & C. BULLOCK, COERCION TO COMPLIANCE (1976); U. S. COMMISSION ON CIVIL RIGHTS, DESEGREGATION OF THE NA- TION'S PUBLIC SCHOOLS: A STATUS REPORT (1979); U. S. COMMISSION ON CIVIL RIGHTS, FULFILLING THE LETTER AND SPIRIT OF THE LAW (1976); C. WILLIE & S. GREENBLATT, COM- MUNITY POLITICAL AND EDUCATIONAL CHANGE: TEN SCHOOL DISTRICTS UNDER COURT OR- DER (1980). 2. For a discussion of this history, see G. ORFIELD, MUST WE BUS? SEGREGATED 924

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