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Author of Landmark Decisiom Reflects on Busing Progress

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Charlotte, N.C.--"I am a traditional Southerner with pride in the South. And though I never saw anyone in my family mistreat a black person for any reason, I accepted for all of my early life the proposition that the ways of white people and the ways of black people were ordained to be different."

The writer of those words, James B. McMillan, would be too modest to say so, but if the desegregation of public schools has done anything to make "the ways of black people and the ways of white people" less different than they used to be, he is partly responsible.

As U.S. District Judge for western North Carolina, Mr. McMillan issued the first federal-court order in 1970 requiring that students be transported out of their neighborhoods in order to desegregate a public-school system that had been found guilty of illegally and intentionally separating the races.

Setting Precedent

And when the Supreme Court upheld that order in 1971, in its landmark decision, Swann v. Charlotte-Mecklenburg Board of Education, a precedent was set for dozens of school-desegregation cases to follow--eventually leading to busing for desegregation, by some estimates, in half of the 100 largest school districts in the United States. Many legal scholars consider Swann second in importance only to Brown v. Board of Education, the 1954 Supreme Court decision outlawing "separate but equal" schools, in the development of desegregation law.

The judge is clearly annoyed by arguments--raised with increasing frequency in Congress and by the Reagan Administration--that busing for desegregation has been a failure.

Yet the self-effacing, Harvard-educated native of rural Robeson County, N.C., scoffs at the notion of having made history.

"I don't think of it that way," he said recently over chicken soup in a modest luncheonette near the federal building in downtown Charlotte. "It was just a case."

National Desegregation Authority

"I have not made it my business," the judge later continued, "to become an authority on desegregation nationally. Once you accept the constitutional mandate, the only question is the facts: Is this system being run lawfully? And if not, what are you going to do about it?"

It did, however, take the judge himself quite some time to arrive at that conclusion.

Well into his adult life, the judge has written, he accepted "apartheid as a way of life." And in 1963, for example, while advocating that pupil assignments be made "without substantial regard to race," he spoke of the "folly" of attaining racially balanced schools by reassigning students outside their neighborhoods.

"Five years later, my factual education began," the judge wrote this year in a statement to a Senate subcommittee, "and my uninformed 1963 Olympian certainty about 'bus-ing' had to give way under the hard light of fact."

Judge McMillan recalls that he entered the case in 1968 "with the belief that the schools were in pretty good shape, that they just needed a little pushing to do better. But it wasn't that way at all."

Nonetheless, the judge remembers, he "didn't believe [the plaintiffs] were serious when they started talking about remedies." For six months, he said, he tried to avoid the conclusion that it would be necessary to reassign and bus students.

'All Hell Breaks Loose'

He describes the case as one that took relatively little time and was not difficult to decide, but was "the hardest to actually do."

"It went along kind of like Mahler's Fifth Symphony," he said. "Someone who reviewed it once said it starts with a cacophony like the inside of a Russian boiler factory, then 60 minutes later all hell breaks loose.

"After I had resisted the whole idea of desegregating schools by the necessary means, I realized what I had to do," he said. "The typical American, if he studied it and had to master the facts the way I did ... well, I think most people would come to the same conclusion."

Noting that North Carolina by law already provided transportation to most students, the judge viewed his order as merely "using a tool that already existed"--and one that, he pointed out, had long been used to perpetuate segregation.

"The absolutely ridiculous feature of all the flack about busing," he maintained, "is this: More than 60 percent of the children in this state live so far away from school that they have to ride in a bus or a car. They were already entitled to transportation if they were assigned to a school more than a mile and a half away.

"It wasn't a busing order," the judge concluded. "Busing's just a word with more emotional significance."

The effects of the order were almost immediately apparent, he recalled. Once it became clear that white students would attend one formerly black high school that had fallen into disrepair, the judge noted, "Equipment started appearing in the chemistry labs, books started appearing on the bookshelves, the lights on the football field were fixed."

Judge McMillan reserves his personal opinions, particularly with regard to school-desegregation cases that have followed Swann. Instead, he speaks constantly of facts, reeling off from memory 10-year-old demographic statis-tics and old state statutes.

This tendency was demonstrated this fall during a Senate hearing on an anti-busing bill. The legislation, sponsored by the judge's fellow North Carolinian, Republican John P. East, would prohibit lower federal courts from ordering busing on the grounds that it has been unduly disruptive and detrimental to students' achievement.

"I have to decide on the facts," Judge McMillan sternly told members of the Subcommittee on the Separation of Powers. "We can't go by public opinion. That's the problem that Senator East has."

"I haven't expressed any view on the constitutionality of the bill,'' Judge McMillan carefully pointed out in a later interview. "The question is the power of Congress to fix the inferior federal courts.

"But there are no new questions," he continued. "There's so much lack of information. I don't think the facts support the proposed findings." When invited to testify by Senator Max Baucus, a Democrat of Montana who opposes the bill, the judge replied that he "wasn't hankering for that kind of job, and I told him I wouldn't go in as an advocate but only to report factually what has happened here in Charlotte."

Stably and Peaceably Desegregated

And what has happened in Charlotte, the judge testified, is that the schools are stably and peaceably desegregated; that "white flight" has tapered off considerably in recent years, although many citizens remain opposed to busing; that neighborhoods are somewhat less segregated than they used to be; and that students' achievement exceeds national norms.

The judge, who was once hanged in effigy because of his order, and the lawyer for the plaintiffs, whose office was bombed, were honored last summer at a testimonial dinner attended by the cream of the community's leadership.

It has been six years, the judge notes happily, since he last entered any orders in the case. The current superintendent and board, he believes, "have done a first-rate job."

"I'm real proud of the community for the way they've stuck to it. That includes both the ones who thought the right thing was being done and the ones who though I was a damned fool.

"Thank God we're where we are and for all the people who made it that way."

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