At some point, less than two decades after the United States Supreme Court found racial segregation in the public schools to be unconstitutional,1 the doctrinal tide shifted. Instead of striking down explicitly discriminatory laws2 and sometimes implicitly discriminatory laws3 on the strength of Brown v. Board of Education,4 the Justices increasingly gave reasons to constrain efforts to integrate various institutions, from police departments5 to swimming pools6 to, of course, schools.7 Litigation over who goes to which public schools served as bellwether and bookend of what came to be known as the Civil Rights Era.8
One of those lawsuits, involving the battle to integrate public schools in Professor Michelle Adams’s native Detroit, is the subject of her compelling, wonderfully accessible, and ultimately disheartening book, The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North (pp. xxi–xxviii). The Supreme Court’s opinion in the case, Milliken v. Bradley,9 will be familiar to many law students, who may be exposed to an excerpt from the opinion in their introductory class on constitutional law. Chief Justice Burger, writing for the majority in the case, defined the question presented as follows:
[W]hether a federal court may impose a multidistrict, areawide remedy to a single-district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts, absent any claim or finding that the boundary lines of any affected school district were established with the purpose of fostering racial segregation in public schools, absent any finding that the included districts committed acts which effected segregation within the other districts, and absent a meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those neighboring districts.10
It is easy to predict the majority’s answer to a question worded like this: No.11
In The Containment, Adams, who is the Henry M. Butzel Professor of Law at the University of Michigan,12 sets out to tell the story of the case, which went up to the Supreme Court twice (p. 341). The book demonstrates that Milliken13 matters for at least three reasons: First, the case marks the Court’s doctrinal shift away from achieving desegregation to establishing limits on the pursuit of integration (p. xxii). Second, the majority opinion in Milliken almost entirely ignores the remarkable factual record produced in the proceedings below (p. 326), which “encompassed the containment, snakes in the basement, physical segregation barriers that resembled prison walls, redlining, racially restrictive covenants, white neighborhood associations with violent tendencies, segregated public housing, racially separate real estate salespersons associations, and school authorities that hoovered it all up when they insisted on neighborhood schools” (p. 318). That is, the residential housing pattern in Detroit and surrounding suburbs was no historical accident that the state could disclaim, and the resulting demographics of the schools in the city and outside were not the result of innocent happenstance (pp. 317–18). Third, and as a result of this failure to acknowledge the significance of the story painstakingly told at trial, Milliken marks the incorporation into doctrine of a racial fantasy in place of actual history (p. 326). In this imagined past, Black families come to live in — and be excluded from — particular places and their schools for reasons that do not offend the Constitution (p. 331), and consequently courts may not construct a remedy requiring the admission of those Black families into spaces from which they were previously excluded (pp. 327–28, 330–31). That formalist understanding has persisted in judicial opinions for decades.14
For Adams, this is clearly an epic failure on the part of the Court (p. 361). She tells the story with such verve and detail that it is difficult for a reader familiar with reality to disagree. The book delves into details, including key exchanges in the course of the trial (pp. 138–39, 152–56, 163–67), public statements by figures supporting and opposing the integration remedy sought by the plaintiffs in Detroit (pp. 216–24), and the prior writings and confirmation testimony of newly appointed Justices whose views would prove decisive (pp. 287–90, 292–93). Much has been written about the Supreme Court’s opinion before, but Adams’s contribution is the deft weaving together of so many historical strands into a single, compelling narrative. The book may be about law, but it is not only for lawyers.
The story Adams tells is urgent, notwithstanding the fifty years that have passed since the events that she describes (p. 360). The Supreme Court’s reconceptualizing of the obligation imposed by Brown (p. 240) and rejection of the evidence of the pervasiveness of racial discrimination at every level of society (pp. 326, 331) provide eerie historical context for current events: On the first Valentine’s Day of the second Trump Administration, the Department of Education issued a “Dear Colleague” letter asserting that a school, college, or university may not “treat[] a person of one race differently than it treats another person because of that person’s race”15 — a demand that extends well beyond what courts have determined the meaning of the Equal Protection Clause to be.16 But the Administration’s view, manifesting concern that consideration of race would harm innocent White applicants for admission or for jobs, would make perfect sense to the Justices in the Supreme Court majority in Milliken, who focused more on the burden that a race-conscious remedy for a constitutional wrong would impose on objecting White people, than on the need to right that wrong in the first place.17
To understand how doctrine that developed to address challenges to barriers that excluded on the basis of race could come to entrench the disparities those barriers created, the story of Milliken is essential. In Milliken, the interests of Black families seeking opportunity for their children foundered on the interests of White families who did not want to have to accommodate them.18 Reaching this outcome required a series of doctrinal steps, elevating the importance of respecting school district lines and then limiting the remedy that a court could order to redress past racial discrimination to the particular school districts shown to have engaged in such discrimination.19 This reasoning elided — ignored, really — the role of state government as a whole in limiting housing and education opportunities for Black families. It also treated integration as a punishment to be imposed only in response to specific and demonstrated instances of racism and not, as Justice Marshall recognized in his dissent, as a tool to promote cross-racial understanding and a healthier, pluralist democracy.20 The result was capitulation to opposition to integration.
In attacks on diversity, equity, and inclusion in the current moment, we see the same setting of the interests of members of groups historically denied opportunity against those of people ostensibly burdened by the remediation effort.21 To people opposed to measures intended to advance fairness, the pursuit of diversity is an imposition, a wanton penalty.22 Further, in the eyes of those who believe themselves harmed by diversity, equity, and inclusion, this punishment is undeserved: The White candidate who believes that an opportunity was unfairly given to a candidate of color might not have engaged in racist actions or even harbored racist ideas.23 The Containment could not encompass these recent developments, but the book makes them unsurprising: Opponents of integration, specifically, and race-consciousness, generally, criticize what to them looks like social engineering to achieve a particular “racial balance.”24 That perspective fails to take into account all the social engineering to create circumstances of extreme racial imbalance (p. 318).
Just as the majority in Milliken turned a blind eye to the longstanding and all-encompassing web of race discrimination that undermined myriad opportunities for Black people for generations (p. 326), critics of diversity, equity, and inclusion in contemporary culture wars ignore the accumulated benefits that have favored White people and the biases that produce and reproduce racial disparities today.25 From this perspective, efforts to include members of historically marginalized groups are themselves unfair and discriminatory.26 Any bridging of these divergent perspectives, any effort to unify a fractured polity, will benefit from study of the strategy pursued by the lawyers who filed the Milliken lawsuit and will require grappling with the blinkered analysis of the Milliken majority.
Other legal scholars and sociologists have examined Milliken over the years, too, recognizing its significance, analyzing its reasoning, and identifying its effects.27 While Adams does not slow down her crisp and smooth prose with side excursions into scholarly writing, her observations regularly reveal her deep engagement with this literature and the many and multifaceted questions that arise in any sophisticated engagement with the question of what racial justice entails. This Review cannot fully convey the nuance of Adams’s project but will offer an example or two.
The discussion that follows has four Parts. Part I provides the doctrinal framework, situating Milliken in the context of desegregation litigation waged in the wake of Brown. Part I then examines the development of Supreme Court doctrine resolving litigation brought to desegregate schools across the country, as well as the reliance on Brown to dismantle statutorily maintained, or de jure, race segregation in settings well beyond public education.
Part II describes the singular ambition and implications of the claims made in Milliken, in which the NAACP Legal Defense Fund28 implicated not just school districts but the practices of the real estate industry and the State of Michigan itself in the maintenance of segregation in K-12 education. It is hard to overstate the potential consequences of recognizing a wide distribution of responsibility for exclusion of Black Americans: The obligations to correct for decades of discriminatory conduct in any meaningful remedy would have to reach people — lots of people — where they lived. No doubt this is one reason a majority of the Justices not only disagreed with the trial court but also ignored almost completely the extensive evidence that the plaintiffs had presented. Adams does a service in describing this evidence in the book, showing lawyerly attention to the nuances of doctrine and, perhaps most importantly, respect for facts.
Part III considers the impact of the story that Adams tells for the present day. Part III examines the doctrinal and real-world effects of the Court’s decision, as well as its broader, symbolic meaning as an instance of retrenchment in opposition to an integrative ideal.29 This examination suggests that one deeply disturbing consequence of Milliken may be our divided national community, in which different groups fear and resent each other and in which intergroup relationships are characterized by an absence of empathy. Part III concludes with a brief and necessarily speculative consideration of the answer Adams suggests to the question of what the effect of a different outcome in Milliken might have been.
Part IV offers a brief conclusion.