Busing, Biden, and the Looming Question of Age

On June 27, ten candidates debated in Miami, each hoping to become the Democratic Party’s nominee for president in July 2020. The night before, ten lesser-known candidates (with Elizabeth Warren and Cory Booker the outliers, at least until Julian Castro’s breakout performance elevated him out of the doldrums) had a relatively civil debate that was heavy on policy on light on political jabs, even against an unpopular Republican president. The field on the 27th was loaded with well-known candidates like Joe Biden, Bernie Sanders, Kamala Harris, Pete Buttigieg, and Kirsten Gillibrand, and there was speculation that it could be a little testier than the first night. And it was.

But before we talk about that, let’s talk about busing.

In 1954, the Supreme Court handed down a decision in Oliver Brown, et al. v. Board of Education of Topeka, et al., case it had heard twice – once in 1952 and a second time in 1953. The Court had moved cautiously because the question in Brown was enormous: was segregation legal?

Map of U.S. states with educational segregation prior to Brown v. Board

It’s important to remember that not only was some form of segregation the law in most U.S. states or, as was the case in New England and parts of the west, was not specifically illegal.

Plessy v. Ferguson in 1896 had upheld “separate but equal” accommodations based on race and Cumming v. Richmond County Board of Education in 1899 had specifically upheld segregated public schools under the doctrine of states’ rights: “the education of the people in schools maintained by state taxation is a matter belonging to the respective states, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.” In Brown, the precedent was clear, but the Court was clearly mulling over how to apply it.

What set Brown apart was its era. Justice Felix Frankfurter, an Austrian-born Jew, had an independent streak. Frankfurter had created the American Civil Liberties Union in 1920 and was a fierce defender of individual freedom. Chief Justice Earl Warren had, as Attorney General of California, overseen the internment of Japanese-Americans; while he initially supported it, even before the end of the war he called internment a mistake. Justice William Douglas – who would go on to suggest that trees and inanimate objects should have standing to sue in court – and Justice Hugo Black often sided with each other and against the others on the absolute right to free speech. And they had a pretty solid idea: what if the precedent in Brown was clear – segregation was legal – but also really dumb and obviously wrong so they just threw it out?

After hearing the case for the first time, a majority were prepared to do just that. Frankfurter, however, believed that wasn’t enough, and he asked for the second hearing. He was convinced that it would take a unanimous decision to make it clear that this precedent was wrong. After the second hearing, he got it.

“We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.”

Brown v. Board of Education, unanimous opinion of the Supreme Court of the United States

The Supreme Court handed down a unanimous opinion on May 17, 1954. Penned by Chief Justice Earl Warren, the opinion said, “We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.” It was the first time the Fourteenth Amendment’s equal protection clause was used successfully to strike down government-mandated segregation. It would not be the last.

The federal government encouraged homeownership, particularly after the end of the Second World War. Homeownership was seen as the ultimate goal of the American Dream. It represented independence and self-determination. It also represented enormous growth in the construction industry and thousands of new jobs across the country, something policymakers saw as a win-win. The most famous products of that enormous growth were the Levittowns, sprawling suburban communities created by the Levitt & Sons real estate company. The first Levittown, in New York, opened in 1951. Black families were prohibited.

Aerial view of Levittown, Pennsylvania

Initially, Levitt & Sons was following the guidance set forward by the new Federal Housing Administration. The FHA discouraged lending to minorities because white homeowners were willing to spend more money to live in segregated communities and, in contrast, saw integrated communities as less desirable. That effects the value of homes, which could put FHA-backed mortgages underwater. Maps were drawn to steer black and Hispanic homebuyers towards specific neighborhoods. The use of red lines to mark out segregated communities helped give the practice the name “redlining.”

Because of redlining, Brown v. Board of Education had little practical effect in northern states. After all, it wasn’t like Levittown had a white-only school and a black-only school. Its education system served every student in town. Brown only ended segregation in education and restrictive covenants and other rules helped to keep white suburbs ethnically homogenous.

The Fair Housing Act of 1968 made redlining illegal, but it did little to reverse its effects. Black and Hispanic buyers had been pushed into poorer neighborhoods while white buyers had the best amenities and opportunities. These white, well-serviced neighborhoods had dramatically higher property values, which means their residents were able to build wealth. Even if a black family could legally buy into a white suburb in 1970, nearly forty years of redlining – and centuries of racial discrimination – meant it was highly unlikely they could afford it.

The Supreme Court had been upset that Brown had ended segregation in law but had done little to actually end the practice. In 1971, the Court heard Swann v. Charlotte-Mecklenburg Board of Education, which brought a new question to the table: could the government, and in particular could the court system, order a remedy to segregation?

In another unanimous decision, the Supreme Court ruled it could. The remedy, known as desegregation busing or simply “busing,” was the practice of forcing racial integration by putting students on school buses and bringing them to schools in a way that ensures a mix of races among students. Under the Swann decision, a white suburb might be required to send students to a neighboring black community’s schools and vice-versa.

Little Rock, Arkansas, was desegregated in 1957. Protesters continued to rally against integration, holding this protest at the Arkansas capitol in 1959.

Busing was controversial from the start. Some families didn’t want their students to be shipped to schools that were, you know, worse. Others were concerned about how busing would move young students far from their homes. And all of this was in the name of “race mixing,” which many Americans saw as dangerous.

But advocates said that housing policy and the way the U.S. funds schools – primarily through local property taxes – meant busing was the only way to truly end segregation. Black students forced by redlining into black communities with low property values operated black schools with no budgets. White students enabled by redlining to live in the best communities with the highest property values operated de facto white only schools with high budgets. Busing could even the playing field.

Berkley, California, commissioned a study into racial patterns in education in 1963. The city had never adopted Jim Crow laws and racial segregation was illegal in California, but the report found that the majority of Berkley’s public schools operated under a system of de facto segregation.

Summary from the De Facto Segregation Study Committee Report, 1963, provided by Berkley Public Schools

The result was surprising to Berkley’s white community which, as it does now, prided itself on being forward-thinking and somewhat progressive. The city had not segregated its schools on purpose but as a result of racially discriminatory housing policy (you can make a good case that we’re still talking about segregating the schools on purpose but let’s set that aside). Berkley was divided into white communities and black communities. Even if Berkley funded its school system equally, wasn’t this still segregation?

In 1968, Berkley implemented its integration solution. The city bused black students to white schools and white students to black schools. It used a formula to try and achieve the right balance – 50% white, 41% black, 9% “Asian and other races” – and, for the most part, the system was a success. It continued to be used until 1994 when the city changed to a new system that allowed more family choice.

In 1969, five year old Kamala Harris was bused to elementary school as part of the city’s racial integration plan.

“You also worked with [segregationists] to oppose busing. And there was a little girl in California who was part of the second class to integrate her public schools and she was bussed to school every day. And that little girl was me.”

Kamala Harris

Joe Biden’s reputation on civil rights is, broadly speaking, pretty good. Biden participated in a sit-in while he was a student and he was an advocate for civil rights as a U.S. Senator, but he was also a strong supporter of local control. Biden agreed with outraged southerners that desegregation busing was an overreach by courts and the federal government.

In 1975, Biden tried to get an amendment passed through Congress that would have outlawed the use of federal money “to assign students or teachers by race” in public schools. Biden’s amendment was a toned down version of one previously offered by southern Democrats, but northern press was still stunned at his audacity. Busing had forced places like Boston, which had created its own system of segregation through carefully drawn school district lines, to address the racial divisions that the city had tried so diligently to expose. It had made places like Detroit and Berkley consider how housing policy had effected a racially segregated school system without civil leaders realizing what was happening. Undoing busing and other attempts at racial integration was “a real threat not only to the gains of the sixties, but to decency in this society,” the New York Times warned.

“The principal tragedy of the Biden amendment, should it survive, is that it would signal a major crumbling of Federal determination to achieve equal justice. It has been demonstrated in cities from Little Rock to Pontiac that where there is a clear will to enforce the law, substantial social progress can occur. It is equally clear that where the will is flabby, the nation’s worst instincts come to the fore. The Biden amendment is thus a real threat not only to the gains of the sixties, but to decency in this society. Congress will be advancing the cause of justice by eliminating it from the bill.”

The New York Times Editorial Board, 1975

Biden was absolutely not the only senator, nor the only Democrat, to oppose desegregation busing. In the 1970s, busing was a hot-button issue. Biden’s opposition can even be seen as almost reasonable when viewed through the lens of small Delaware, where forced integration could have literally brought students from one end of the state to the other.

Unlike the other candidates, Biden has been in politics for more than four decades. Biden became a U.S. Senator in 1972; Pete Buttigieg was born in 1982. A big part of Biden’s pitch is his experience as a senator and as a vice president. That can make it hard for him to truly confront the realities of his political record, especially his early record.

And where that seems most dangerous is that it was Kamala Harris who called him out.

Kamala Harris became Attorney General of California in 2011. Her tenure as Attorney General has earned a lot of criticism from progressives who say that California’s top cop is not the person you want as President of the United States.

As Attorney General, Harris fought to keep nonviolent offenders in overcrowded, dangerous prisons; argued that releasing those prisoners deprived the State of California of cheap labor; refused to prosecute police who neglected a 24-year-old black woman; and arrested the parents of truant children. Harris has since maintained that, as attorney general, she did not get to choose which laws to enforce and how to enforce them, something that seems like not a great position for a prospective President of the United States to take. We certainly want a president who will enforce the law but we don’t want one who will enforce laws they disagree with solely because, you know, gosh it’s the law you guys.

During the debate, Harris brought up Biden’s troubling history on busing. Biden seemed entirely caught off guard by Harris’ questions and he struggled to answer them. But at one point, Biden managed to squeeze out a gentle barb: “I became a public defender, not a prosecutor.” It was a dig at Harris’ past and her record and an unusually progressive one: most Democratic politicians still show deference to prosecutors and district attorneys.

But Biden couldn’t seal the deal. He never really followed up on his prosecutor dig. And when trying to defend his record on busing, he folded, saying, “My time is up. I’m sorry.” It’s hard to imagine what that would look like in a debate against President Trump. Biden’s inability to defend his own record and his inability to attack someone for the weaknesses in their record is an enormous red flag to those who see Biden as the best candidate in 2020.

A question that has loomed over this race, in which two septuagenarians are running for the highest office in the land, hoping to face off against our septuagenarian president, is: how old is too old for the presidency? Pundits have speculated that Donald Trump, 73, may have the early stages of dementia. Ronald Regan was diagnosed with Alzheimer’s disease in 1994, but his own son suggested that it may have set in as early as a decade earlier. Watching a harried Joe Biden try and fail to respond to Harris felt less like “Diamond Joe Biden” and more like “Denny’s Joe Biden.” He’s got grandpa energy, which is good in its own way, but seems woefully short of what is necessary for the presidency.

And while Biden’s decision to not respond to “do you regret your position on busing in the 1970s?” with “do you regret delaying rules that would have disclosed misconduct by police officers testifying in court?” is good. He didn’t resort to a round of whataboutism to distract from his record. But he also lost the moral ground to make that case later in the debate, and that’s not so good. A younger candidate who isn’t carrying a forty year legislative history might not have that problem. Or, perhaps, a younger candidate could deliver a better answer, like Pete Buttigieg’s candid admission that he has failed to improve diversity in the South Bend Police Department.

Last night was Biden’s big chance to prove that he was someone worth fighting for. Not only did he mess that up, but he’s raised the specter of his age and his record at a time when Democrats don’t want to be saddled with history. Donald Trump represents history. Democrats want a candidate who can represent the future.