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

In this article, we examine how ambiguity affects the development of policy in the federal judiciary. Specifically, we analyze how selected courts of appeals have responded to the ambiguity surrounding proof of discriminatory purpose in Northern school desegregation litigation and in turn how the Supreme Court has reacted to the legal standards employed by the courts of appeals. Several conclusions are drawn. Among these are: (1) the ambiguity has not functioned as a means of control. The courts of appeals have tended to take advantage of the discretion resulting from the Supreme Court's pronouncements and inaction; (2) the ambiguity and uncertainty have permitted the circuit courts to define their role in this policy conflict; and (3) ultimately this means that for this area of public policy the rights of children depend largely on the region of the country in which they reside.