The Policy-Making Role of the Courts of Appeals in Northern School Desegretation: Ambiguity and Judicial Policy-Making
| Author | Michael W. Combs |
| Published date | 01 September 1982 |
| Date | 01 September 1982 |
| DOI | http://doi.org/10.1177/106591298203500306 |
| Subject Matter | Articles |
THE
POLICY-MAKING
ROLE
OF
THE
COURTS
OF
APPEALS
IN
NORTHERN
SCHOOL
DESEGRETATION:
AMBIGUITY
AND
JUDICIAL
POLICY-MAKING
MICHAEL
W.
COMBS
University
of
Nebraska
NOTE:
Support
for
this
research
has
been
provided
by
the
Rockefeller
Foundation
under
Grant
RF
80024
and
the
Research
Council
of
the
University
of
Nebraska-Lincoln.
The
author
would
like
to
thank
Lucius
Barker,
Gwen
Marizett
and
Susan
Welch
and
anonymous
reviewers
for
their
helpful
suggestions.
HE
PURPOSE
of
this
research
is
to
examine
the
decisions
made
by
g
the
courts
of
appeals
in
the
important
policy
area
of
Northern
school
~L
desegregation
in
order
to
advance
our
understanding
of
the
courts’
role
in
judicial
policy-making.
Specifically,
we
concentrate
on
how
the
courts
of
appeals
have
responded
to
the
uncertainty
and
ambiguity
found
in
the
policy
pronouncements
of
the
Supreme
Court.
In
doing
so,
we
explore
the
relevant
legal
standards
that
these
courts
have
adopted
to
determine
when
school
officials
have
acted
with
discriminatory
purpose.
In
turn,
we
also
focus
on
how
the
Supreme
Court
has
reacted
to
the
standards
employed
by
the
courts
of
appeals.
Here
the
focus
represents
a
significant
departure
from
earlier
studies
on
courts
and
school
desegregation
where
the
objectives
were
mostly
twofold:
(1)
to
explain
lower
courts’
(Vines,
1963;
Steamer,
1960)
efforts
to
enforce
the
mandates
of
Brown
v.
Bd.
of Educ.,
347
U.S.
483
(1954),
and
subsequent
decisions;
and
(2)
to
explain
the
voting
behavior
of
lower
court
judges
in
terms
of
social
background
variables
(Giles
and
Walker,
1975).
Broadly
speaking,
except
for
Peltason
(1971),
these
studies
did
not
seek
to
explain
the
policy-making
role
of
the
courts
of
appeals;
nor
did
they
seek
to
explain
the
relationship
that
might
exist
between
policy
pronouncements
of
the
Supreme
Court
and
those
of
the
courts
of
appeals.
While
not
ignoring
the
policy-making
activities
of
the
courts
of
appeals,
the
overriding
concern
of
these
studies
was
to
emphasize
compliance
or
non-compliance
with
Supreme
Court
decisions.
For
the
most
part,
the
scholarly
emphasis
was
to
document
the
move-
ment
of
litigation
toward
or
away
from
the
Supreme
Court.
But,
as
we
know,
most
federal
litigation
is
terminated
in
the
courts
of
appeals
(Abraham,
1980:
173;
Howard,
Jr.,
1973).
Even
so,
this
research
enhanced
our
understanding
of
the
role
of
the
courts
of
appeals
in
the
school
segrega-
tion
controversy
and
the
political
system
more
generally.
However,
due
to
the
regional
focus
of
the
previous
research
and
the
apparent
variations
in
the
complexions
of
Northern
and
Southern
school
segregation,
what
we
know
about
the
behavior
of
the
courts
of
appeals
in
the
South
may
not
hold
true
for
the
Northern
phase
of
school
desegregation.
The
major
purpose
of
our
efforts
here
is
to
analyze
how
selected
circuits’
of
the
appellate
court
have
responded
to
the
ambiguity
in
Supreme
’This
study
includes
cases
decided
by
the
First,
Second,
Third,
Sixth,
Seventh,
Eighth,
Ninth
and
Tenth
circuits
reported
in
Shephard’s
citations
from
1954
through
1980.
We
have
excluded
cases
360
Court
decisions,
in
terms
of
the
legal
standard(s)
to
determine
proof
of
discriminatory
purpose.
The
relevance
of
uncertainty
and
ambiguity2
has
been
documented
in
various
contexts
(Murphy,
1959;
Downs,
1967;
Romans,
1974;
and
Shepsle,
1975).
One
view
(Murphy,
1959;
Beatty,
1972;
Romans,
1974;
and
Wasby,
1978)
posits
that
the
lack
of
clarity
in
a
policy
pronouncement
increases
the
discretion
that
is
available
to
subor-
dinates
and
that
the
subordinates
tend
to
capitalize
on
the
added
discretion
by
taking
policy
positions
that
are
contrary
to
the
intended
objectives
of
the
superiors;
that
is,
subordinates
will
resolve
the
ambiguity
so
as
to
conform
to
their
own
predilections
(Peltason,
1971:
13).
The
opposing
view,
&dquo;the
control
view, &dquo;
asserts
that
uncertainty
and
ambiguity
in
a
policy
mandate
may
function
as
a
means
of
coordinating
and
controlling
the
development
of
policy
(Schlesinger,
1958;
Goldman
and
Jahnige,
1976;
Benveniste,
1977;
Dunshire,
1978;
and
Barker,
1979).
The
uncertainty,
it
is
argued,
forces
individuals
to
return
to
the
superior,
here
the
Supreme
Court,
to
obtain
elucidation
of
the
meaning
and
limit
of
the
policy
mandate;
when
a
policy
directive
lacks
clarity
the
members
of
the
organization
or
the
bureaucracy
generally
avoid
areas
of
discretion
and
avoid
taking
responsibility
for
delicate
decisions.
The
two
views
do
agree,
however,
that
uncertainty
and
ambiguity
create
conflict
within
the
organization
or
the
bureaucracy.
In
this
paper,
we
argue
that
the
issue
of
school
segregation
in
the
North
is
an
area
that
the
Supreme
Court
has
left
ambiguous.
In
particular,
the
Court
has
left
ambiguous
the
standard
of
proof
necessary
to
prove
dis-
criminatory
intent.
Through
an
analysis
of
the
decisions
of
the
appellate
courts
and
the
Supreme
Court,
we
seek
to
answer
the
following
questions:
Has
the
ambiguity
surrounding
the
proof
of
discriminatory
purpose
enlarged
the
policy-making
role
of
the
courts
of
appeals?
Has
this
ambiguity
led
to
major
differences
among
the
circuits
of
the
appellate
courts?
If
so,
what
are
the
implications?
And
how
has
the
Supreme
Court
responded
to
legal
standards
employed
by
the
courts
of
appeals
to
prove
discriminatory
purpose?
THE
SUPREME
COURT
AND
SEGREGATIVE
INTENT:
KEYES,
WASHINGTON
AND
ARLINGTON
HEIGHTS
In
the
1960s
and
early
1970s,
the
Supreme
Court
did
little
to
resolve
the
developing
disagreements
between
circuit
courts
on
the
standard
to
use
to
determine
when
school
officials’
acts
and
policies
gave
rise
to
a
constitutional violation
under
the
Equal
Protection
clause.
With
the
exception
of Keyes
v.
School
Dist.
No. 1,
Denver,
413
U.S.
189
(1973),
the
Supreme
Court
denied
certiorari
to
litigants
in
school
desegregation
litiga-
from
states
that
had
statutes
as
of
1954
requiring
segregated
schools.
Because
of
the
protracted
nature
of
school
desegregation
litigation,
and
the
diverse
issues
that
surface,
it
is
difficult
for
one
to
speak
of
the
termination
of
a
controversy.
As
a
result,
we
have
treated
each
opportunity
that
a
circuit
court
has
had
to
rule
in
school
desegregation
litigation
as
a
case.
And
our
analysis
here
includes
those
instances
in
which
a
circuit
court
ruled
on
the
question
of
segregative
intent.
2By
uncertainty
and
ambiguity,
we
mean
the
lack
of
information
or
the
lack
of
clear
information.
At
times
the
two
terms
are
used
interchangeably.
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