Once at odds, Pickler and Donald agree Brown v. Board relevant to schools merger discussion

In addition to referencing the 1961 integration of Memphis City Schools, two speakers at Monday's oath of office ceremonies for new unified school board members also brought attention to the fact that the Brown v. Board of Education lawsuits were first filed in 1951, 60 years ago. One of them was the longtime Shelby County Schools board chairman, David Pickler, and the other was U.S. Appeals Court Judge Bernice Donald.

It was Donald who as a district court judge ruled in 2007 against the suburban system's plea to be released from a court-supervised desegregation order. Donald had expressed concern that many of the suburban schools had fewer than 10 percent black students and others had between 56 and 90 percent -- and that Southwind High would be comprised of nearly 90 percent black students when it opened. She ordered busing to achieve racial balances in schools within 15 percent of the districtwide average (at the time, 58 percent white and 31 percent black; now, closer to 52 percent white and 38 percent black) and also cited need for progress in faculty assignment and extracurricular activities.

However, the very same court of appeals on which Donald now serves overruled, using at times stinging language in rebuking her decision and therefore providing SCS the "unitary status" it had long sought. Essentially, the appeals court agreed with SCS and the original plaintiffs that it no longer needed a judge's permission to make changes to zoning and staffing that might affect racial balances at the district's schools. "I have dreamed of this moment," Pickler said at the time. According to our story:
The Court of Appeals ruled that the district wasn't at fault for the uneven racial makeup of schools, citing annexations by the city of Memphis, people's choices in where to live and school construction approved by the court. "It is undisputed that political and social decisions beyond the defendant Board's control have affected and continue to impact the racial ratio of the Shelby County students," the ruling says.
That appeals court ruling came in the week marking the 54th anniversary of the Brown v. Board of Education decision, which Donald and Pickler both cited on Monday. Donald, after a receiving a standing ovation from the packed MCS auditorium, said:
"Education is the foundation upon which all great communities, all great nations, are ultimately built. If we are ever going to have communities of equity and opportunity it is incumbent upon all of us to insure that every child has a solid and wonderful education."

In closing the ceremony, Pickler thanked Donald for bringing up Brown. Here is what he said:

You may also recall that one of the significant and influential Supreme Court justices was Felix Frankfurter, and one of his greatest accomplishments was bringing together a unanimous verdict, a unanimous decision in that Brown case because he felt it so important to send that message. Felix Frankfurter has a saying. He said, "The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny." As those Supreme Court justices, all nine of them came together, we 23 have an opportunity to come together for the benefit of our community, to be the most pervasive influence on the future of our community.
In researching to verify Pickler's statement on Frankfurter, another quote attributed to Frankfurter also arose. It was at his insistence that the phrase "all deliberate speed" replace "forthwith" in the Brown decision, and it was upon that basis, argue many legal scholars, that school systems, especially in the South, were able to delay fully integrating schools for nearly two decades. The fact that it was more than six years after Brown that Memphis took the so-called "bold" putting the burden of integration on the shoulders of 13 young children integrate speaks to the extent of noncompliance with Brown.

For more on Memphis and desegregation, schools merger transition team member Daniel Kiel's legal article "Exploded Dream" is a good resource. This Library of Congress website is a great resource on Frankfurter and his colleagues and the Brown decision. It has the image of the original draft decree from Frankfurter and explains:
Frankfurter inserted "with all deliberate speed" in place of "forthwith," which Thurgood Marshall had suggested to achieve an accelerated desegregation timetable. Frankfurter wanted to anchor the decree in an established doctrine, and his endorsement of it sought to advance a consensus held by the entire court. The justices thought that the decree should provide for flexible enforcement, appeal to established principles, and suggest some basic ground rules for judges of the lower courts. When it became clear that opponents of desegregation were using the doctrine to delay and avoid compliance with Brown, the Court began to express reservations about the phrase.


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