Common Ground (51 page)

James J. Sullivan’s career began as if he were going to challenge John Kennedy for the title of Super Irishman. A bricklayer’s son, Sullivan grew up in the tough Mission Hill district of Roxbury, but graduated from Boston Latin, Harvard College, and Harvard Law School, and worked for Henry Cabot Lodge in both the Senate and the United Nations before returning to Boston, where he served as an Assistant U.S. Attorney, then Real Property
Commissioner and City Corporation Counsel under John Collins. Once Kevin White took office, Sullivan found himself in political eclipse. Gradually, he shucked his patina of sophistication, resuming his earlier identity as a Roxbury Irishman, a belligerent battler for traditional values against the impractical notions of social experimenters. Sullivan had warned when he took over the School Committee case that he intended to try it as an “adversary proceeding,” and he kept his promise. But his adversary was not so much the plaintiffs as the judge himself, whom Sullivan privately ridiculed as a “pansy.” His taunts enraged Garrity, who, in his chambers, seethed at “that little stinker.”

The Garrity-Sullivan skirmishes revealed the political nub of the case. Sullivan was charging Garrity with being a traitor to his own kind, an apostate who had forgotten that an Irishman’s ultimate loyalty was to his family, his clan, his turf, his blood. Garrity was accusing Sullivan’s clients of being false to a still higher value, to the requirement of their faith that they love and respect all God’s children. Arthur Garrity was harder on his fellow Irish Catholics than any Yankee judge would likely have been in such circumstances. To him, racial hatred and prejudice were moral transgressions as great as drug peddling and pornography. From the bench he lashed out at “the frenetic, hatemongering fringe in South Boston.” He would not countenance that kind of conduct, and if people thought he was harsh, so be it. The dictates of their Church required a certain standard of behavior and he was going to hold them to it. Dick Maguire, who knew Arthur Garrity as well as anyone, said, “Whenever I hear that line from ‘The Battle Hymn of the Republic’: ‘As he died to make men holy, let us die to make men free,’ I think of Arthur.”

On March 13, 1975, the Boston Bar Association gathered to honor the man who had once been in line to be its president. Outside the association’s Beacon Street headquarters that evening, anti-busing demonstrators chanted, “Don’t honor him! Impeach him!” Inside, a hundred judges and lawyers applauded as Garrity received the Public Service Award for his “steadfast devotion to the law.” Then Garrity walked to the microphone. “There’s much more to the rule of law,” he said, “than constitutions and statutes themselves and their faithful construction by the courts and enforcement by officials of government. The rule of law encompasses the entire process whereby social order is achieved and preserved.” But such order depended in turn, he said, upon “another body of rules which exist independently of constitutions and statutes and have been described by Professor Lon Fuller as ‘the fundamental rules that make law possible.’ These are the traditional principles of liberty, justice and decency commonly called the natural law.”

Then he quoted from Walter Lippmann’s
The Public Philosophy
. “Is there a body of positive principles and precepts which a good citizen cannot deny or ignore?… Indeed, there is such a thing as the public philosophy of civility. It does not have to be discovered or invented. It is known. But it does have to be revived and renewed.”

As one might have expected from his Thomistic training at Holy Cross, Garrity felt some affinity with the early-American judicial tradition—exemplified
by John Marshall—in which judges do not “make” law, but “find” it in a body of immutable truths. The judge declared what those truths were; he was the oracle, the secular priest, who received and interpreted the law. This was a tradition later rejected by Oliver Wendell Holmes and other positivists, who argued that judges were law
makers
, deriving their decisions not from some body of revealed truth but from the gritty sum of man’s experience. But to Arthur Garrity the law was indeed something beyond mere experience. Right was right. Wrong was wrong. Racial justice was commanded not only by the United States Constitution but by divine law and natural law.

Apparently in reference to the angry shouts from outside, Garrity declared that night: “In reaching decisions which arouse the passions of the community in such matters as abortion and school busing, the Constitution forces the court in some degree to rely on natural law.”

Even so, it remained unclear just how natural law might guide a judge in such a complex task as desegregating Boston’s schools. For natural law could be argued on both sides of the case. Indeed, Ray Flynn, a state representative from South Boston, tried that one day, rising in Arthur Garrity’s courtroom to remind the judge that they had both gone to Catholic colleges and learned there a doctrine which held that parents had natural rights above and beyond those of the state, chief among them the right to control their own children. In reply, Garrity found himself arguing constitutional law against Flynn’s version of natural law.

No, natural law was fine for Bar Association disquisitions, but in devising a Phase II remedy, Garrity preferred to rely on a street-wise pragmatic Irishman. Although the judge had adopted Dentler’s recommendation for a “team” approach, Eddie McCormack was clearly first among equals, the team’s un-official captain. It was a shrewd choice. A native of South Boston, McCormack was regarded as a loyal son of Southie, but he was also a lifetime member of the NAACP, and when he was State Attorney General, his strong civil rights stance had won the respect of Boston blacks. Moreover, he was a nephew of the former Speaker of the United States House of Representatives, John McCormack, a bellwether of the Democratic Party. The McCormacks, to be sure, had jousted with the Kennedys for control of the state party—Eddie had run against Ted Kennedy in a bitter primary contest for Jack’s vacated seat in 1962. But even that was a point in his favor, because Arthur Garrity knew he could count on the Kennedy faction; he chose McCormack in part because he represented “the other camp” of the Boston Irish. Finally, McCormack was a tough, resourceful politician, adept in the art of consensus building.

He and Garrity never reached a firm agreement on what the job entailed, in part because there is no precision in legal circles about a master’s duties. He is often viewed as a purely legal officer, a surrogate for the judge, who holds hearings on a complex subject and then recommends a course of action. But while Ed McCormack was an able lawyer, that was clearly not his principal qualification for the job. He was chosen because he had the savvy to broker a politically acceptable settlement consonant with the constitutional requirements.
Yet that kind of activity was a legal no-man’s-land. Garrity never told McCormack just how far he could go; McCormack never said just what he would do.

But broker he did—boldly and aggressively. He and his colleagues went through the motions of formal hearings, taking testimony on various plans which had been submitted to the court. But the real work was done in private meetings with leaders from all parts of the city in which McCormack asked, “How far would you be prepared to go?” In weeks of shuttle diplomacy, he negotiated a Phase II plan with broad support.

Unlike the Phase I plan, which affected only 40 percent of Boston’s schools, the Masters’ Plan covered the entire city (although East Boston, which the masters seemed to regard as a separate community under the
Keyes
doctrine, was largely exempted from its provisions). The city was divided into nine community school districts like slices of a pie, each wedge including black neighborhoods toward the pie’s center and white communities toward the edge. Integration was achieved by busing whites toward the center of each slice and blacks toward the periphery. Each student had the right to attend a school within his own district if he chose to; however, he could also opt for one of thirty-two city wide “magnet schools” offering specialized programs. Magnet school enrollments would be held close to the racial ratio prevailing in the system at large—51 percent white, 36 percent black, 13 percent “other minority.” But district schools would be allowed to reflect the racial composition of their own district. Thus, the percentages of white students would fluctuate widely—from 95 percent in East Boston and 80 percent in West Roxbury to 25 percent in Dorchester’s Burke district and 30 percent in Madison Park. Another significant change would have eliminated the busing between South Boston and Roxbury, desegregating South Boston principally with blacks from nearby Dorchester. The plan had been designed to minimize busing throughout the city, and although its scope was greatly increased over Phase I, the number of students to be bused was actually reduced from 17,000 to 14,900. Parents were given some control over their children’s schools through elected district councils. Finally, the city’s universities and major business institutions were to offer assistance to individual schools.

To some, the plan seemed a skillful balancing of the constitutional requirement for racial integration with the craving of many parents for neighborhood autonomy. Moreover, Eddie McCormack had woven a powerful mystique around the plan. It seemed to promise both justice and order, an attractive combination to the afflicted city. That expectation mobilized a broad middle ground behind the plan, including the
Globe
and
Herald
, Mayor White and Governor Michael Dukakis (who had defeated Frank Sargent the fall before).

But not everybody liked it. Pixie Palladino labeled it “a rotten plan because it still requires mandatory busing.” And to the NAACP the plan “looked like Munich, as if the governing constraint had been accommodation and tranquillity, not justice.” Objecting particularly to the omission of East Boston and the wide fluctuation in racial ratios, the NAACP threatened to take the case to the
Court of Appeals. The State Board of Education submitted a detailed critique which argued that the masters had grossly miscalculated the ratios in several areas. Finally, new data obtained from the School Department showed that there were substantially fewer students in the system than hitherto believed, which altered many of the masters’ calculations. By mid-April, it was clear to Ed McCormack that Garrity was under heavy pressure to revise the plan substantially, by busing more students and imposing greater uniformity on the city. Moreover, he heard that the judge was considering putting Roxbury and South Boston back in the same district. “You can’t do it, Arthur,” he told Garrity. “It’ll blow the plan.”

From his experience in the state courts, McCormack’s colleague Jacob Spiegel thought he knew what was worrying Garrity. Although the Supreme Court in
Swann
had rejected integration by inflexible ratios, it also disapproved of schools whose racial composition was substantially different from the system-wide percentage. Garrity, Spiegel assumed, was afraid of being reversed on appeal if he adopted the Masters’ Plan, but Spiegel believed that appellate judges would sanction considerable variation, particularly within a city like Boston, which was so Balkanized by ethnic neighborhoods. “Arthur,” he argued, “do me a favor. Don’t change a comma. Let it go to the Court of Appeals. I’ll represent our side up there and I’ll guarantee you, they won’t overturn it.”

The judge offered no assurances, but the masters retained some hope for their plan. Ed McCormack realized that the judge was not simply a Jesuit-trained jurist concerned with constitutional rights and remedies; he was also a practical man, intensely concerned with what worked. After all, he had long been associated with the Kennedys, the most pragmatic of public figures, and from them Garrity had learned to practice the art of the possible. “There is no such thing as perfection” he once declared. “It is a great mistake to think that there is.” Garrity loved to get his hands around hard, stubborn, intractable details. Once he told Bob Dentler that what he had enjoyed most about running Jack Kennedy’s Wisconsin campaign was the chance to administer a complex logistical operation. He seems to have fulfilled that part of himself in the school case. As the School Committee continued to defy him, he was drawn into administering the system himself—establishing school hours, hiring and firing personnel, ordering roofs repaired and hallways painted. One day he instructed South Boston High to purchase twelve MacGregor basketballs and six Acme Tornado whistles. Nor did he neglect to instruct a school that was being converted from elementary to middle grades to raise the height of its urinals.

Garrity most clearly revealed his practical side on the day he dedicated a plaque to his mentor, Francis Ford, who had died late in 1975. Garrity noted that Ford had been shaped in part by his experience in municipal politics. “It gave him, or perhaps strengthened in him,” Garrity said, “a streak of skepticism, even suspicion, lest he embrace a judicial doctrine without an understanding
of its practical consequences. In pondering a legal problem, he subscribed to the prayer of the poet Yeats:

Ed McCormack prayed that Arthur Garrity’s marrow bone would prevail.

Finally, on May 10, 1975, Garrity handed down his decision. He retained much of the Masters’ Plan, but changed significant portions: enforcing a more uniform racial ratio on the entire city (except East Boston); abolishing a district, the Burke, because it was too black; again placing South Boston and Roxbury in the same district; and sharply increasing the number of students to be bused, from 14,900 to 25,000. It was a characteristically cautious, by-the-book ruling. “Arthur threw the ball right across the center of the plate,” a friend says. “He doesn’t like to work the edges.”

Ed McCormack was so angry he couldn’t bring himself to read the newspapers the next morning. He felt betrayed. After encouraging them to build consensus for a plan, the judge had kicked the props from underneath it. If the plan had needed refinement, why couldn’t Garrity have handed it back to them for “fine-tuning” instead of simply overriding them? Now people could say, “I supported the Masters’ Plan, but I can’t support the judge’s.” Garrity claimed to have retained 90 percent of the original plan, but McCormack was sure that the revisions, modest though they might be, had destroyed the plan’s mystique and therefore its efficacy. He could not guarantee that his plan would have brought peace to the city, but he was certain that the judge’s remedy would ensure more violence.