Introduction
In 1965, Massachusetts became the first state in the nation to enact a law that directly addressed racial imbalances in its public schools.1 Championing the legacy of Brown v. Board of Education (1954) (“Brown”), the Racial Imbalance Act (“the RIA”) strived for “promotion of racial balance and the correction of existing racial imbalance in the public schools.”2 This unprecedented legislation, however, never achieved its purpose. A court order designed to implement the RIA that required Boston public schools to integrate was met with fierce opposition and, eventually, prompted significant white flight.3 Today, Boston public schools are more segregated than they were sixty years ago.4
This article considers why the RIA failed to meet its promise and asks whether a different statute or policy could have succeeded. Part I documents the RIA’s adoption, the litigation that followed, and the eventual court order that sought to integrate Boston’s public schools through a busing program. Part II examines the white flight and parochial school enrollment that arose after the RIA’s implementation and hampered the realization of its promise. It explores how small, voluntary programs like that created by the Metropolitan Council for Educational Opportunity, Inc. (“METCO”) quietly thrived in the shadow of the controversial court-ordered busing program. Finally, Part III considers what alternative statutory scheme or policy plan could have better integrated Massachusetts’s schools. A large-scale voluntary program modeled after METCO, while less idealistic, could have avoided the predictable pitfalls confronted by the RIA. This article concludes by arguing that while the failed implementation of Boston’s busing program cannot be undone, it is not too late to learn from that failure and further the purpose of the RIA by expanding METCO, an unanticipated but fruitful byproduct of the RIA.
Part I: The Racial Imbalance Act’s Creation, Implementation, and Litigation
Like nearly every major American city in the middle of the twentieth century, Boston’s school system prioritized schools that predominantly accommodated white students at the expense of schools serving students of color. The city spent more than forty percent more per white pupil in the 1950s than it did on their Black peers.5 Although the issue had not been formally studied, Black parents anecdotally reported that their children attended schools that were racially segregated, overcrowded, poorly resourced, and poorly maintained.6 Spanish-speaking Latino children, meanwhile, were functionally excluded from Boston Public Schools because no academic programming existed to service their needs.7
A decade after Brown, the Commonwealth finally appeared to have some legislative appetite to address this racial gap. In 1963, Royal Bolling Sr., a Black state senator from Roxbury, a historically Black neighborhood of Boston, proposed the Racial Imbalance Law.8 Although the Massachusetts Legislature did not pass Bolling’s original draft, Governor Endicott Peabody appointed a Racial Imbalance Advisory Commission soon after to study the state’s public schools.9
The Commission’s final summary report, published in 1965, was short but damning.10 It found that fifty-five schools in Massachusetts catered to predominantly “non-white” student bodies, and that students overwhelmingly attended schools populated with pupils of their same race.11 After noting that racial imbalance “represents a serious conflict with the American creed of equal opportunity,” the Commonwealth concluded that “[i]t is imperative that [Massachusetts] begin[s] to end this harmful system of separation.”12 Answering this call for action, the Massachusetts Legislature enacted the RIA that same year.13 The RIA remains in effect.14
The RIA requires school districts to annually submit the percentage of white and “non-white” students attending public schools under their jurisdiction.15 If the Board of Education reviews the submitted data and determines that a school is racially imbalanced, which it defines to be “a public school in which more than fifty percent of the pupils attending such school are non-white,” then the Board will notify that district of its findings.16 Non-white students in schools where an imbalance exists have the right to transfer to a school in that same district where “racial isolation” exists.17 If no seats are available to transfer into, the district must prepare a plan to remedy the situation within that school year.18 If the Commonwealth finds that the district failed to act or did not take steps that resulted in “progress within a reasonable time,” it can withhold state funding.19
In large part, the RIA passed thanks to the support of suburban legislators who sought to demonstrate their commitment to racial justice without inconveniencing their own constituents.20 Because the RIA only requires school districts to address racial imbalances if their student body is more than fifty percent “non-white,” the RIA only applied to two school districts in the entire Commonwealth: Boston and Springfield.21 The RIA does invite students in racially imbalanced schools to transfer, but they are only permitted to transfer intra-district.22 Unlike school districts in other parts of the country, districts in Massachusetts tend to be town-specific and therefore small.23 As a result, transferring students are unlikely to be able to access a school that caters to a different racial demographic. For legislators representing Boston’s overwhelmingly white suburbs, then, a vote for the RIA offered a symbolic gesture rather than meaningful reform.
While suburban residents sat on the sidelines, many white families in Boston met the enactment of the RIA with immediate and sustained resistance.24 By exempting suburban schools, the RIA’s design permitted its opponents to avoid the sensitive topic of race and instead make their resistance about the need for local autonomy.
Boston Mayor Kevin White, for example, described himself as being “for integration and against forced busing.” As Mayor White put it, "[w]e've fought that suburban-siege mentality too long and too hard, and our efforts for metropolitan solutions have been resisted too consistently for us to trust that judgment or sincerity.”25 Louise Day Hicks, the influential chairwoman of the Boston School Committee, similarly framed the RIA as an attempt by invading suburbanites to impose their will on city residents.26 As recently as 2014, former Boston Mayor Ray Flynn described the “fundamental issues” with the RIA’s implementation to be that of economic status and class rather than race.27 Many residents likely did have legitimate concerns about the lack of local control over education under a busing regime. Nevertheless, for those residents who were unwilling to vocalize support for racial segregation but did not want to see their children placed in mixed-race classrooms, the local autonomy pretext provided a socially acceptable reason to oppose reform efforts.28
Emboldened by its constituency’s response, the Boston School Committee refused to comply with the RIA despite the threat of losing state funding.29 When the Massachusetts Legislature did eventually withhold $52 million from the Boston School District, the School Committee, led by Hicks, announced it would rather forgo state funding than sacrifice its local autonomy.30 The School Committee organized protests opposing the RIA’s implementation31 and challenged its constitutionality in court.32 A decade of litigation followed before the School Committee was finally held accountable for its noncompliance.33
In his 1974 decision in Morgan v. Hennigan, United States District Judge W. Arthur Garrity Jr. of the District of Massachusetts found that “[r]acial segregation permeates schools in all areas of the city [of Boston], all grade levels, and all types of schools” and that the Boston School Committee had deliberately maintained such a segregated system.34 Although the Black parents that brought the case challenged racial segregation in Boston public schools on constitutional rather than statutory grounds, Judge Garrity found the RIA to be “highly relevant” to his analysis because “[m]any of the defendants' actions were taken as a result of the state law.”35
Judge Garrity credited the Massachusetts State Board of Education for its efforts to reverse segregation in Boston schools but found the Board was “considerably hampered” by the RIA’s design.36 Under the RIA, the State Board of Education could only withhold funding or bring suit in court. It had no authority to take control of noncompliant school systems.37 Ultimately, the buck stopped with the Boston School Committee. Judge Garrity found the School Committee, in turn, “took many actions in their official capacities with the purpose and intent to segregate the Boston public schools and that such actions caused current conditions of segregation in the Boston public schools.”38
Judge Garrity ordered the immediate integration of Boston’s schools.39 But school integration does not occur overnight with the stroke of a judicial pen; an implementation plan was needed. In the months following the initial order, a multi-district desegregation plan represented one possible remedy.40
Under a multi-district approach, residents cannot easily flee one school district in search of a more homogenous, nearby district.41 But the month after Judge Garrity handed down Morgan, the United States Supreme Court foreclosed any possibility of such a plan in Milliken v. Bradley (1974), holding that under the U.S. Constitution, “absent an interdistrict violation, there is no basis for an interdistrict remedy.”42 Left with “little choice other than mandatory busing,” Judge Garrity implemented a busing program that required thousands of schoolchildren to be transported across the city.43 Beginning the subsequent school year, the Boston School District needed to bus Black high school students from Roxbury to South Boston, and South Boston students to Roxbury.
Boston’s visceral response to Judge Garrity’s order is well-documented.44 An antibusing group held a mock funeral for Miss Liberty and chanted “Garrity Killed Liberty.”45 Photographer Stanley Forman's snapshot of a white rioter attacking Black attorney Ted Landsmark with a flagpole bearing the American flag near City Hall won the Pulitzer Prize for Photography.46 In Irish South Boston, white protestors jeered and threw objects at buses transporting students from predominantly Black Roxbury.47 The South Boston protests continued for over a month.48 Later that fall, a series of racially-driven, violent attacks compelled South Boston High School to close down for a month.49 State police remained stationed in the streets of South Boston for the next three years.50
While the fierce, public backlash put a national spotlight on the streets of Boston, an even more consequential set of decisions were being made at kitchen tables across the city. Part II reviews the quiet white flight that resulted from Judge Garrity’s order.
Part II: White Flight and the RIA’s Plight
When the dust settled, Boston’s school landscape was unrecognizable. Many white parents in Boston, unwilling to see what desegregation would mean for their children, either moved to the suburbs51 or enrolled their children into parochial or secular private schools.52 By 1981, just seven years after Judge Garrity’s initial order, fifty-nine percent of white students had left the Boston public school system.53 Today, white residents comprise fifty percent of Boston’s population but just fourteen percent of its public school system.54
This mass exodus left behind a Boston school system that was considerably less racially integrated. Today, Boston schools remain as segregated as, if not more than, they were in the 1960s.55 As of 2018, at two-thirds of Boston schools, students of color make up more than ninety percent of the student body.56 As Boston Globe columnist Jeff Jacoby recently explained, “[b]efore busing began, the average [B]lack child in Boston attended a school that was 24 percent white. By the mid-1990s, the proportion was 17 percent.”57 Ultimately, an Act designed to integrate schools had the opposite effect.
The RIA’s design and Judge Garrity’s eventual order should have made this outcome foreseeable. By adopting a district-specific approach that only applied to schools in Boston and Springfield, the RIA practically invited white parents to seek an escape valve. Boston’s predominantly white suburban towns, left untouched by the RIA, offered such an exit.58
As Boston’s compulsory integration floundered, inter-district, voluntary busing programs quietly thrived. One well-known program, METCO, hoped to enroll Black Bostonians into predominantly white suburban schools that offered better educational opportunities.59 When 220 students enrolled in METCO’s inaugural year, families were told that the program would likely only need to exist for approximately three years while Boston schools came into compliance with the RIA.60 That prediction proved false. Today, METCO continues to enroll Boston residents into suburban school districts.61 Students opt in to the program, and suburban school districts volunteer to enroll the students.
METCO serves as a painful reminder of the unfulfilled promise of the RIA. The program, which admits students through an application process and lottery, now buses more than 3,000 students of color to thirty-three suburban school districts.62 Its student outcomes are promising. While less than seventy percent of Boston public school students complete high school, ninety-eight percent of METCO enrollees graduate.63 METCO’s Black and Latino enrollees tend to score higher on state achievement tests than their Boston Public School peers64 and the program reports that nearly ninety percent of its participants later enroll in higher education.65
Judge Garrity oversaw the Boston School District’s busing plan until he handed over responsibility to the Commonwealth in 1983.66 In 1988, the Boston School Committee reclaimed control.67 Nearly a quarter of a century after the ambitious RIA was first adopted, school integration in Boston had regressed: a once majority-white district was now forty-eight percent Black and nineteen percent Latino.68 In Part III, this paper considers whether an alternative statutory scheme might have avoided the failures of the RIA.
Part III: Another Bus Route
The promise of the RIA was never realized. By requiring Boston to desegregate while leaving the surrounding suburbs untouched, the Massachusetts Legislature invited discontented families to flee the city’s school system for whiter pastures. By the time Judge Garrity considered incorporating suburban schools into his busing plan a decade later, it was too late. The Supreme Court’s decision in Milliken v. Bradley made it nearly impossible to devise an inter-district remedy on constitutional grounds.69
The truth is that given the RIA’s legislative history and troubled implementation, the RIA likely would have never passed in the first place if it had required suburban schools to participate in integration. It may be that legislators who voted for the RIA and represented suburban whites supported integration in the abstract but were unwilling to send their own children to an integrated school.70 Suburbanites tend to prefer local control and see the inclusion of students from urban centers as a threat to their exclusive and well-resourced school environments.71 Even if suburban schools were required to accept urban students under the RIA, parents could enroll their children in private schools, a step they are constitutionally entitled to take.72 Before Judge Garrity’s order, parochial schools in Boston had been struggling to maintain their enrollment.73 After the order, a flood of white students sought refuge in the private institutions.74 An inter-district busing program would have further fueled that torrent by leading more suburban families to consider private education.
In the end, a purely voluntary program, while less ambitious than the RIA, would have been more effective in creating an integrated school system in Massachusetts. The modern METCO program serves as a model for what the Massachusetts Legislature could have endorsed. In retrospect, despite being only a byproduct of the RIA’s implementation, METCO ultimately did far more to integrate Massachusetts schools than the RIA did.75 But METCO’s small scale restricts its impact. Despite its successes, METCO funding has stagnated in recent years.76 No suburban school district has joined METCO since the 1970s, and the program has not expanded its enrollment in decades despite population growth in Boston and its surrounding suburbs.77 In 2018, for example, more than 8,000 students sat on METCO’s waitlist.78 Those constraints make sense in light of the fact that METCO was originally designed to serve as a temporary bandage rather than a long-term solution. But given the continued, segregated nature of Boston schools, METCO represents a finger in a dam that gave way long ago.
A large-scale voluntary program modeled after METCO could have avoided some challenges posed by the RIA’s structure. First, unlike the RIA, voluntary programs like METCO can succeed despite being race-blind.79 Given the Supreme Court’s growing skepticism of race-conscious admissions policies,80 legislatures should seek to adopt effective race-blind policies that are less susceptible to constitutional challenges.81 In the United States, geography serves as a strong proxy for race.82 As a result, voluntary programs that target urban neighborhoods will predominantly cater to clustered populations of color.83
Second, a voluntary busing plan could have avoided raising the ire of residents unwilling to adhere to a mandatory program. Boston schools are more segregated today than in 1965 because the authors of the RIA failed to appreciate the kind of response it would generate among impacted, predominantly white families.84 Accepting that a voluntary program would have been more successful requires one to abandon idealism for the sake of pragmatism. Unlike other inter-district solutions, voluntary programs open the doors of resource-rich suburban schools to students of color without asking white parents to do much of anything.85
There are problems with a voluntary approach. Under a voluntary busing system, the burden of integration is placed on Black and Latino children asked to bus substantial distances every day to receive a quality education. In her book on METCO, Susan Eaton powerfully documents the challenges program enrollees face.86 METCO students of color often commute over two hours to enter a potentially intimidating environment full of white faces.87
Nevertheless, the merits of voluntary programs like METCO outweigh their costs. By adopting a voluntary approach, parents can decide whether they believe the benefits of busing outweigh the costs for their child. Research on METCO suggests that parents who opt into the program are making a wise decision. As noted earlier, METCO students experience higher graduation rates and test scores than their peers who are left behind in under-resourced city schools.88 Recently, Tufts University economist Elizabeth Setren led a research team that found significant long-term benefits from METCO enrollment. According to her team’s longitudinal study, students who enrolled in METCO were thirty-three percent less likely to drop out of high school and seventeen percent more likely to attend a four-year college compared to their peers who applied to METCO but were not admitted.89 Enrollees continued to benefit later in life. For example, at age thirty-five, METCO enrollees were more likely to be employed and, on average, had an average annual salary that was more than $24,000 higher per year than their peers.90 Setren’s conclusion accords with other research conducted on the benefits students of color who attend integrated schools enjoy.91
When writing her book, Eaton asked METCO graduates if they would enter the program again if given the chance. Fifty-seven of sixty-five graduates said they would.92 While METCO graduates acknowledged they faced challenges, they recognized that their early introduction to white-dominated spaces prepared them to feel comfortable in predominantly white institutions of higher education and the workforce.93 METCO students attest to experiencing racial isolation in suburban schools, but an expanded METCO program could ease that burden by creating a critical mass of students of color.94
Other cities have successfully adopted large-scale, voluntary student transfer programs. Hartford, Connecticut provides one valuable and nearby example. In 1996, the Connecticut Supreme Court in Sheff v. O’Neill ruled that the state’s constitution imposed an affirmative constitutional obligation on its legislature to provide students of color with a substantially equal educational opportunity to that provided for other students.95 Hartford’s heavily segregated schools deprived its students of that opportunity. To remedy this harm, the state legislature created a series of inter-district magnet schools that draw both from Hartford’s predominantly Black city center and its surrounding, predominantly white suburbs.96 Enrollment in the magnet schools is voluntary.97
In the years that followed Sheff, “[t]he state has established over 40 magnet schools and an expansive inter-district student transfer system.”98 Today, nearly half of Hartford’s public school students attend a desegregated school.99 Like research on METCO, research on student outcomes from Connecticut magnet schools is promising. One comprehensive study concluded that the magnet schools “succeed in providing their students more integrated, higher-achieving peer environments” and “on average, have positive effects on [reading and mathematics] achievement.”100 Another study found the magnet schools narrowed the achievement gap between urban and nonurban students.101
Hartford’s busing system has its fair share of detractors.102 For example, journalist Rachel Cohen argues that the voluntary nature of Hartford’s busing program eases political tensions but ultimately limits its effect.103 Other commentators suggest that the city would have been better off had the Sheff court implemented a forceful, mandatory remedy.104 Others argue that the program’s lottery format benefits some while limiting the access to quality education of others.105 And, of course, not all voluntary programs have been as successful as Hartford’s. For example, St. Louis adopted a voluntary busing program following litigation.106 The program, which began in 1982, “bused more than 13,000 [B]lack St. Louis students to predominantly white schools in St. Louis County” at its peak.107 But state politicians attacked the program as being too costly, and support for the program waned.108 The program eventually stopped marketing itself to new families109 and enrolled its last class of students in 2023.110
Voluntary busing is no panacea. But given the failure of the RIA and the models of success offered by METCO and Hartford, this paper posits that a well-funded, large-scale voluntary busing program would have led to a more integrated school system in Boston than the RIA did. Put bluntly, this alternative regime would have been hard-pressed to result in a worse outcome than today’s status quo.
Conclusion
While policymakers cannot go back in time and redo the implementation of the RIA, they can and should seek to expand existing voluntary school integration programs that have proven effective. In the aftermath of the George Floyd protests in 2020, eight suburban districts inquired as to whether they could enroll METCO students and some members of the Massachusetts Legislature voiced support for increased program funding.111 There was reason to believe that METCO’s brightest days were ahead of it. That momentum, though, has fizzled due to a lack of funding, as Governor Maura Healey’s administration has repeatedly sought to keep METCO’s budget level despite municipalities’ interest in expansion and its documented success.112 Artificially limiting the size of METCO when demand is so great is a mistake.113 If the Commonwealth aspires to realize the promise of the RIA, support for programs like METCO offers the most pragmatic path forward.
1 Dennis Ford Eagan, Note, The Past, Present, and Future of School Desegregation Law in Massachusetts, 34 SUFFOLK U. L. REV. 541, 556 (2001).
2 MASS. GEN. LAWS ch. 71, § 37C (1965).
3 See infra notes 44-54.
4 See Christina Pazzanese, Boston Busing in 1974 Was About Race. Now The Issue Is Class, THE HARV. GAZETTE (June 18, 2024), https://news.harvard.edu/gazette/story/2024/06/school-reform-expert-on-50-year-legacy-of-boston-busing/#:~:text=Current%20enrollment%20is%20now%20roughly,mental%20health%20and%20behavioral%20problems (“Students of color are now more racially isolated in Boston public schools than ever before.”); Desegregation Busing, BOS. RSCH. CTR., https://bostonresearchcenter.org/projects_files/eob/single-entry-busing.html (“As of 2018, more than half of Boston Public Schools are profoundly segregated, more so than they were in 1965.”).
5 See Matthew Delmont, The Lasting Legacy of the Busing Crisis, THE ATLANTIC (Mar. 26, 2016), https://www.theatlantic.com/politics/archive/2016/03/the-boston-busing-crisis-was-never-intended-to-work/474264/ (“Across Boston’s public schools in the 1950s, per-pupil spending averaged $340 for white students compared with only $240 for [B]lack[] students.”).
6 See id.; Boston Before Busing: Racial Imbalance Act, NE. UNIV. LIBRS., https://dsgsites.neu.edu/desegregation/racial-imbalance-act/ (last visited Nov. 18, 2024).
7 See Deanna Pan, In the Order to Integrate Boston Schools, Latinos Were an Afterthought. They’re Still Fighting for Equal Education Today, BOS. GLOBE (June 20, 2024), https://apps.bostonglobe.com/metro/2024/06/busing-in-boston/latinos-busing-still-fighting/. A 1969 report found that even though there were roughly 11,000 Spanish-speaking Latino children living in Boston, less than 3,000 were actually enrolled in Boston Public Schools. Id.
8 See Boston Before Busing: Beginning of Movement, NE. UNIV. LIBRS., https://dsgsites.neu.edu/desegregation/beginning-of-movement/#:~:text=Through%20word%20of%20mouth%20and,district%20and%20no%20black%20principals (last visited Nov. 18, 2024) (“Through word of mouth and visits to white schools, people saw that [B]lack students did not share opportunities such as field trips, advanced classroom technology, and better learning environments.”); Delmont, supra note 5.
9 Boston Before Busing: Racial Imbalance Act, supra note 6.
10 Id.
11 Id.
12 Id.
13 MASS. GEN. LAWS ch. 71, § 37D (1965).
14 Id.
15 Id.
16 Id.
17 Id. (defining a school with “racial isolation” to be “a public school in which not more than thirty percent of the pupils attending such school are non–white”). White students attending a school where racial isolation exists may similarly transfer.
18 Id. A district may plan, for example, to make additions to existing school buildings, change the way existing schools are utilized, or lease additional space. Id.
19 MASS. GEN. LAWS ch. 15, § 1I (1965) (outlining the Board of Education’s role). Section 1I also describes how the Commonwealth may reimburse impacted districts for the costs associated with transporting students. Id.
20 See Sharon Perlman Krefetz, The Impact and Evolution of the Massachusetts Comprehensive Permit and Zoning Appeals Act: Thirty Years of Experience with a State Legislative Effort to Overcome Exclusionary Zoning, 22 W. NEW ENG. L. REV. 381, 385–86 (2001) (noting the Republican governor felt the RIA passed thanks to the vote of “suburban ‘armchair liberals’”).
21 Elliot Weinbaum, Looking for Leadership: Battles over Busing in Boston, PENN GSE PERSPECTIVES ON URB. EDUC. (2004), https://urbanedjournal.gse.upenn.edu/archive/volume-3-issue-1-fall-2004/looking-leadership-battles-over-busing-boston.
22 See MASS. GEN. LAWS ch. 71, § 37D (1965) (“Any non-white pupil attending any public school in which racial imbalance exists shall have the right to be transferred to and to attend any other school . . . under the jurisdiction of the same school committee or regional district school committee . . . ” (emphasis added)).
23 See Sarah Carleton et. al., School District Consolidation in Massachusetts: Opportunities and Obstacles, MASS. DEP’T OF ELEMENTARY & SECONDARY EDUC., Nov. 2009, at 1, 1–2, https://www.doe.mass.edu/research/reports/2009/11consolidation.doc. 329 school districts serve 351 cities and towns in Massachusetts. While there are some regional secondary schools, many small towns have sought to preserve independent elementary districts. Id. at 2.
24 Weinbaum, supra note 21 (noting the RIA’s passage was met with “little organizing in support of integration and much in opposition” in Boston); see also Strong Reactions and Divided Opinions, UMASS BOSTON (2015), https://bosdesca.omeka.net/exhibits/show/racial-imbalance_bps/reactions-and-opinions (publishing, among other things, one letter to the mayor of Boston from a resident of Wellesley, MA, an affluent suburban town, deploring de facto segregation and another letter to the mayor of Boston from a Boston resident who accused the mayor of catering to Black voters and called for a “civil rights bill for the white people”).
25 Weinbaum, supra note 21.
26 Id.
27 Bruce Gellerman, Busing Left Deep Scars on Boston, Its Students, WBUR (Sept. 5, 2014), https://www.wbur.org/news/2014/09/05/boston-busing-effects [hereinafter Gellerman, Deep Scars on Boston].
28 See Jane M. Hornburger, Deep Are the Roots: Busing in Boston, 45 J. NEGRO EDUC. 235, 243 (1976) (noting busing “became in our time the polite, culturally sanctioned way to oppose racial desegregation”).
29 See Erica Frankenberg & Kendra Taylor, De Facto Segregation: Tracing a Legal Basis for Contemporary Inequality, 47 J. L. & EDUC. 189, 207 (2018) (explaining that the Committee “was committed to the repeal of the Act and exploited the judicial review process to avoid following the law”). As noted supra, school systems that failed to take steps to implement the RIA risked losing state funding.* See supra* note 19 and accompanying text.
30 Weinbaum, supra note 21.
31 Id.
32 See Sch. Comm. of Bos. v. Bd. of Educ., 227 N.E.2d 729 (1967), appeal dismissed, 389 U.S. 572 (1968).
33 See Peter M. Shane, School Desegregation Remedies and the Fair Governance of Schools, 132 U. PA. L. REV. 1041, 1111 n.215 (1984) (detailing the litigation).
34 See Morgan v. Hennigan, 379 F. Supp. 410, 424 (D. Mass. 1974). Notably, Judge Garrity made almost no mention of the plight of Latino students. Judge Garrity reasoned that because the parties did not make any arguments regarding discrimination of “non-black minority students” at trial, their fate would need to be decided at subsequent hearings. Id. at 415 n.1.
35 Id. at 417.
36 Id. at 476.
37 Id.
38 Id. at 480.
39 Id. at 484 (requiring RIA plan be implemented “on or before the opening day of school in September, 1974”).
40 See Weinbaum, supra note 21.
41 William D. Henderson, Note, Demography and Desegregation in the Cleveland Public Schools: Toward a Comprehensive Theory of Educational Failure and Success, 26 N.Y.U. REV. L. & SOC. CHANGE 457, 467 (2001) (arguing that “with increased racial stability in the schools, flight to a more homogenous district becomes both impractical (commute times increase) and unnecessary (the racial balance is deemed to be more acceptable)”).
42 Milliken v. Bradley, 418 U.S. 717, 752 (1974). Because the Black plaintiffs in Morgan neither alleged nor demonstrated that the suburban public schools surrounding Boston violated any constitutional right, an intra-district remedy would be unconstitutional.
43 Weinbaum, supra note 21.
44 See, e.g., Matthew Richer, Busing’s Boston Massacre, HOOVER INST. (Nov. 1, 1998), https://www.hoover.org/research/busings-boston-massacre; Latoyia Edwards, ‘I Saw a Lot of Hatred': Looking Back at Boston's Busing Crisis, NEW ENG. CABLE NEWS (Feb. 28, 2020), https://www.necn.com/multimedia/i-saw-a-lot-of-hatred-looking-back-at-bostons-busing-crisis/2239117/ (collecting images and testimony from clashes that followed busing).
45 School Desegregation Protests and Rallies Downtown, NAT’L PARK SERV., https://www.nps.gov/articles/000/protest-at-faneuil-hall.htm (last visited Dec. 6, 2024).
46 Id.
47 Bruce Gellerman, How The Boston Busing Decision Still Affects City Schools 40 Years Later, WBUR (Dec. 19, 2014), https://www.wbur.org/news/2014/06/20/boston-busing-ruling-anniversary [hereinafter Gellerman, Boston Busing Decision].
48 Bruce Gellerman, 'It Was Like A War Zone': Busing In Boston, WBUR (Sept. 5, 2014), https://www.wbur.org/news/2014/09/05/boston-busing-anniversary.
49 Id. Among other incidents, “[a] group of whites in South Boston brutally beat a Haitian resident of Roxbury who had driven into their neighborhood” and “some [B]lack students stabbed a white student at South Boston High.” Id.
50 Id.
51 See John Kifner, White Pupils’ Rolls Drop a Third in Boston Busing, N.Y. TIMES (Dec. 15, 1975), https://www.nytimes.com/1975/12/15/archives/white-pupils-rolls-drop-a-third-in-boston-busing-white-pupils-rolls.html (describing the “sharp acceleration” in white students leaving Boston after the Garrity order, many of whom enrolled in nearby public schools). See also DAVID ARMOR WITH DONNA SCHWARZBACH, WHITE FLIGHT, DEMOGRAPHIC TRANSITION, AND THE FUTURE OF SCHOOL DESEGREGATION 32 (1978) (finding 55% of Boston’s “white loss” was the result of desegregation court orders).
52 Kifner, supra note 51 (noting many white, middle-class parents enrolled their children in parochial schools both in Boston and in surrounding towns).
53 Dudley Clendinen, Boston City Schools, Once Beacons, Losing Students and Pride, N.Y. TIMES (Sept. 20, 1981), https://www.nytimes.com/1981/09/20/us/boston-city-schools-once-beacons-losing-students-and-pride.html.
54 Gellerman, supra note 27.
55 Thomas Maffai, A 40-Year Friendship Forged by the Challenges of Busing, THE ATLANTIC (Nov. 17, 2016), https://www.theatlantic.com/education/archive/2016/11/a-40-year-friendship-forged-by-the-challenges-of-busing/502733/.
56 BOSTON RESEARCH CENTER, supra note 4. Latinos now make up nearly 50% of the Boston Public Schools student body and are the largest racial or ethnic group in Boston Public Schools. Pan, supra note 7.
57 Jeff Jacoby, Opinion, Biden was Right. Busing Was Wrong, BOS. GLOBE (July 2, 2019, 12:04 PM), https://www.bostonglobe.com/opinion/2019/07/02/biden-was-right-busing-was-wrong/s1nTspTbSmtGPBksFnFVaI/story.html.
58 Boston’s suburbs were, and remain, very white. “Of the 147 municipalities that form the Greater Boston area, 61 are at least 90 percent white and some are much whiter, according to 2017 data.” Catherine Elton, How Has Boston Gotten Away with Being Segregated for So Long?, BOS. MAG. (Dec. 8, 2020, 11:26 AM), https://www.bostonmagazine.com/news/2020/12/08/boston-segregation/.
59 See Alana Semuels, The Utter Inadequacy of America’s Efforts to Desegregate Schools, THE ATLANTIC (Apr. 11, 2019), https://www.theatlantic.com/education/archive/2019/04/boston-metco-program-school-desegregation/584224/.
60 Id.
61 Stephannie Joseph, After George Floyd, More Suburbs Express Interested in Joining METCO, WGBH (Aug. 9, 2023), https://www.wgbh.org/news/education/2021/10/06/after-george-floyd-more-suburbs-express-interest-in-joining-metco. See also METCO District Profiles Concepts, METCO, https://metcoinc.org/wp-content/uploads/2024/08/District-Profiles-Concepts.pdf [hereinafter METCO District Profiles Concepts] (listing all participating towns and their number of enrollees).
62 Joseph, supra note 61.
63 Semuels, supra note 59. Of course, there might be some selection bias. Students’ families have to opt in the program to begin with, which may suggest their families are keenly aware of the benefits of receiving a high-quality education.
64 Audie Cornish, Why Busing Didn’t End School Segregation, NPR (Oct. 6, 2016, 4:34 PM), https://www.npr.org/sections/ed/2016/10/06/496411024/why-busing-didnt-end-school-segregation. There is, of course, a risk of self-selection bias in these comparisons given the fact that METCO is an opt-in program.
65 Expanding School Choice through METCO, PIONEER INST. (June 16, 2011), https://pioneerinstitute.org/education/expanding-school-choice-through-metco/.
66 BOSTON RESEARCH CENTER, supra note 4.
67 Id.
68 Mike Damiano et al., 50 Years After Busing Decision, A School System Still Unequal, Still Segregated, BOS. GLOBE (June 20, 2024), https://apps.bostonglobe.com/metro/2024/06/busing-in-boston/school-system-still-unequal-segregated/.
69 See Milliken v. Bradley, 418 U.S. 717 (1974). For an inter-district remedy to be permissible after Milliken, school systems would need to identify “racially discriminatory acts of one or more school districts [that] caused racial segregation in an adjacent district” or “district lines [that] have been deliberately drawn on the basis of race.” Id. at 745.
70 Cf. Christine H. Rossell, The Convergence of Black and White Attitudes on School Desegregation Issues During the Four Decade Evolution of the Plans, 36 WM. & MARY L. REV. 613, 653–54 (1995) (theorizing that “white parents oppose busing because it entails real costs and burdens for them and their children . . . and the benefit does not appear to be greater than the cost”).
71 See James E. Ryan & Michael Heise, The Political Economy of School Choice, 111 YALE L.J. 2043, 2045–46 (2002).
72 See Pierce v. Soc’y of the Sisters, 268 U.S. 510, 534–35 (1925) (finding an Oregon law that required all children to attend public schools to be unconstitutional). This point may be obvious but rules out any possibility of some dramatic, prescriptive legislation that mandates public school attendance.
73 Clendinen, supra note 53.
74 Id. In 1981, Catholic schools in Boston were 86% white. See id.
75 See Semuels, supra note 59; see also Joseph, supra note 61; METCO District Profiles Concepts, supra text accompanying note 61.
76 Semuels, supra note 59 (noting that, as of 2019, “METCO [was] actually receiving less money from the state than it did in 2007 and 2008”).
77 According to METCO’s website, the last town to become a METCO partner was Sudbury, MA in 1975. See METCO District Profiles Concepts, supra note 61.
78 See Semuels, supra note 59. More recently, METCO has moved away from its waitlist process. See also Seth Daniel, METCO is Offering New Options for Prospective Students, DORCHESTER REP. (Dec. 21, 2022), https://www.dotnews.com/2022/metco-offering-new-options-prospective-students (noting METCO has “instituted an online process [and] a lottery”).
79 See Brendan McGuirk, A Modern METCO, BOS. INST. FOR NONPROFIT JOURNALISM (May 29, 2019), https://binjonline.com/2019/05/29/a-modern-metco/ (observing that METCO operates as a lottery and “there are no racial litmus tests for enrollment in the program”).
80 See generally Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
81 Indeed, the fact that METCO operates as a race-blind program helps insulate it from legal challenges seeking to rely on Roberts Court decisions. See e.g., Parents Involved in Cmty. Schools v. Seattle School Dist., No. 1, 551 U.S. 701 (2007).
82 See Jenny Schuetz, Metro Areas Are Still Racially Segregated, BROOKINGS INST. (Dec. 8, 2017), https://www.brookings.edu/blog/the-avenue/2017/12/08/metro-areas-are-still-racially-segregated/ (finding that people of color tend to cluster in city centers and that “[s]tark racial differences in residential location are visible to the most casual observer”).
83 Katherine Stewart, For 50 Years, This Voluntary Busing Program Has Desegregated Schools 1 Family — and 1 District — at a Time, THE 74 (July 31, 2017), https://www.the74million.org/article/for-50-years-this-voluntary-busing-program-has-desegregated-schools-1-family-and-1-district-at-a-time/.
84 As Bob Schwartz, who served as Boston Mayor Kevin White’s advisor on education during Judge Garrity's order, later stated, "[a]t every point where the [Boston] school committee had a choice,” it “opted for segregation." Gellerman, Boston Busing Decision, supra note 47.
85 Research suggests that white flight is more common when a school desegregation program is (1) mandatory rather than voluntary and (2) only involves a nucleus city rather than the whole metropolitan area. Henderson, supra note 41, at 466, 468.
86 See generally SUSAN E. EATON, THE OTHER BUSING STORY: WHAT’S WON AND LOST ACROSS THE BOUNDARY LINE 202– 222 (2001) (interviewing a number of METCO graduates about their experiences in the program).
87 Of course, this same issue exists under Boston’s busing program, where “tens of thousands of children and teenagers [] crisscross Boston every school day.” Damiano, supra note 68.
88 See supra text accompanying note 63; see also Cornish, supra note 64; see also PIONEER INST., supra note 65.
89 See Max Larkin, A New Study Highlights the Long-term Benefits of METCO Participation, WBUR (Jan. 16, 2024), https://www.wbur.org/news/2024/01/16/study-research-metco-participation-impacts (summarizing Setren’s findings).
90 Id.
91 See RUCKER C. JOHNSON, CHILDREN OF THE DREAM: WHY SCHOOL INTEGRATION WORKS (2019); see also Andrew Bauld, METCO, Evaluated, ED. MAG. (Fall 2019), https://www.gse.harvard.edu/news/ed/19/08/metco-evaluated (summarizing researcher Ann Mantil’s work on the positive causal effects of the METCO program).
92 EATON, supra note 86, at 208.
93 Id. at 206.
94 See id. at 202.
95 Sheff v. O’Neill, 678 A.2d 1267, 1280 (Conn. 1996). For a detailed history and analysis of the decision, see Mary Jane Lee, How Sheff Revives Brown: Reconsidering Desegregation’s Role in Creating Equal Educational Opportunity, 74 N.Y.U. L. REV. 485 (1999).
96 See Robert Bifulco et al., Can Interdistrict Choice Boost Student Achievement? The Case of Connecticut’s Interdistrict Magnet School Program, 31 EDUC. EVALUATION & POL’Y ANALYSIS 323, 326 (2009).
97 See Rachel M. Cohen, Desegregated, Differently, AM. PROSPECT (Oct. 18, 2017), https://prospect.org/power/desegregated-differently/.
98 Rachel Martin & Cara McCellan, Opinion, Connecticut’s Effort to Integrate Hartford Schools Is Working, THE HILL (July 17, 2018), https://thehill.com/opinion/education/397201-connecticuts-effort-to-integrate-hartford-schools-is-working?rl=1.
99 See Cohen, supra note 97.
100 Bifulco et al., supra note 96, at 341.
101 See CONN. ST. DEP’T OF EDUC., EVALUATING THE ACADEMIC PERFORMANCE OF CHOICE PROGRAMS IN CONN. 11, 14 (2015).
102 See generally Cohen, supra note 97 (detailing issues with Sheff).
103 See Cohen, supra note 97 (arguing “[t]he voluntary nature of the Sheff remedy helped it avoid political backlash, but also severely watered down its impact.”).
104 See Cohen, supra note 97.
105 See Jacqueline Rabe Thomas, Lingering Questions Remain About School Desegregation in Connecticut, CTMIRROR (Nov. 29, 2018, 4:39 PM), https://ctmirror.org/2018/11/29/lingering-questions-remain-school-desegregation-connecticut/.
106 See Liddell v. Bd. of Educ., City of St. Louis, 469 F. Supp. 1304 (E.D. Mo. 1979).
107 Ryan Delaney, St. Louis School Desegregation Program Begins its Long Wind Down, STLPR (Nov. 1, 2018, 5:19 PM), https://news.stlpublicradio.org/education/2018-11-01/st-louis-school-desegregation-program-begins-its-long-wind-down.
108 See Nikole Hannah-Jones, Taking Freedom: School Segregation, The Continuing Tragedy of Ferguson, PAC. STANDARD (Apr. 13, 2018), https://psmag.com/social-justice/taking-freedom-school-segregation.
109 Delaney, supra note 107.
110 Blythe Bernhard, Minnie Liddell’s Dream of Education for Black Children in St. Louis Still Elusive After 50 Years, ST. LOUIS POST-DISPATCH (Feb. 18, 2022), https://www.stltoday.com/school-desegregation-efforts-in-st-louis/collection_2ab47852-910e-11ec-909e-b7b9976bc1b2.html#2.
111 See Joseph, supra note 61; see also Naomi Martin, Legislative Bills Take Aim at School Segregation in Mass., BOS. GLOBE (June 2, 2021, 4:13 PM), https://www.bostonglobe.com/2021/06/02/metro/legislative-bills-take-aim-school-segregation-mass/ (quoting METCO’s president, who noted that “historically, new interest in participating has been prompted by social shifts related to race”).
112 See James Vaznis, Metco Wants to Expand Student Enrollment but Faces a Fight on Beacon Hill over Funding, BOS. GLOBE (Nov. 22, 2023, 5:13 PM), https://www.bostonglobe.com/2023/11/22/metro/metco-state-funding-student-enrollment-expansion/; see also Diane Adame, Healey's Proposed Budget Makes Cuts to Head Start, Level-funds METCO, WGBH (Jan. 25, 2024), https://www.wgbh.org/news/2024-01-25/healeys-proposed-budget-makes-cuts-to-head-start-level-funds-metco (noting METCO’s disappointment with Governor Healey’s level budget for the program because “level-funding [] makes it difficult to keep up with continuously rising educational costs, like bus contracts, SAT prep courses, tutoring and after school programs”).
113 See supra note 78 and accompanying text.