The Policy-Making Role of the Courts of Appeals in Northern School Desegretation: Ambiguity and Judicial Policy-Making

Abstract

rT nHE PURPOSE of this research is to examine the decisions made by the courts of appeals in the important policy area of Northern school 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 movement 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 segregation 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