ABSTRACT
Charles Evans Hughes, a former chief justice of the Supreme Court, once noted, “We are under a Constitution, but the Constitution is what the judges say it is.” Nothing illustrates this better than the course of the law on school desegregation. Before 1954 the Supreme Court interpreted the equal protection clause to allow public schools to practice racial discrimination to separate the races, as long as the separate facilities were (theoretically) equal. Between 1954 and 1968, the Court reinterpreted the clause to prohibit racial discrimination in assigning children to public schools. Then, after 1968, the Court required many school districts to take race into account in order to increase racial mixing. The justices said that busing for racial balance would undo the effects of discrimination and thereby give meaning to equal protection, but skeptics suspected that the Court’s real purpose was to uplift black youths by ensuring that they were socialized in racially balanced, predominantly white schools. 1
