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98-year-old lawyer who made history sees echoes of CMS busing battle

Ben Horack, one of the lawyers who represented Charlotte-Mecklenburg Schools before the U.S. Supreme Court in 1970, is now 98 and following student assignment talks with interest.
Ben Horack, one of the lawyers who represented Charlotte-Mecklenburg Schools before the U.S. Supreme Court in 1970, is now 98 and following student assignment talks with interest. ahelms@charlotteobserver.com

Ben Horack doesn’t show up for discussions about diversity in Charlotte-Mecklenburg Schools. At 98, he has given up driving.

Even if he attended his name might go unrecognized. But when Horack called to say he had thoughts to share, I headed to Southminster Retirement Center to hear them.

After all, Horack started making CMS history before I was born, first as a school board member voting on desegregation and later as an attorney representing the district in the landmark Swann case. He fought a losing battle against a mandate to bus students for racial integration.

Decades have passed since those events thrust him into local and national history. But he sees reflections of the issues that split Charlotte in the 1960s and 1970s in today’s wrangling over diversity, student assignment and busing.

“I want to make something perfectly clear: I am all in favor of diversity,” Horack says, wagging his finger for emphasis. But he believes now what he did then: That neighborhood schools are essential whatever your race, and that the sole mission of schools should be teaching kids.

“You can get diversity in many different ways,” he says, “but there’s only one place where you can get educated, and that’s the schools.”

The Swann case, which forced CMS to bus students for desegregation, is a defining event in Charlotte’s history and American public education.

Julius Chambers, the civil rights lawyer who won the case, and Judge James McMillan, who issued the busing order, died in recent years. They were hailed as heroes.

Horack and Bill Waggoner, the lawyers for CMS, live quietly in retirement centers – Horack in south Charlotte, Waggoner at The Pines in Davidson.

“You don’t remember those who didn’t prevail,” Horack says.

But he remembers.

Reluctant pioneer

Horack, who had served as president of the Park Road Elementary School PTA, was appointed to the Charlotte School Board in 1953. He served for almost a decade, a stretch that included the merger with Mecklenburg County Schools.

But it was the city board’s 1957 vote to allow four black students to enroll in white schools that launched Horack on the path of history.

“As individuals, each member of our board would have liked to maintain the status quo by continuing things like they always had been,” Horack wrote in a short memoir of that time.

But the U.S. Supreme Court had ruled in 1954 that “separate but equal” could not stand. Charlotte school board members had seen the violence and strife that ensued when Southern segregationists elsewhere resisted.

“It was the responsible thing to do what we were required to do. We decided, ‘We will spare the community that,’ ” Horack recalls.

Decades later, the iconic image of that time is of a teenage Dorothy Counts walking into Harding High, head held high as she is jeered by a mob of whites. Photos went around the world. The harassment was so intense that she withdrew within a week.

From today’s perspective, it was a moment of civic shame. And the glacial pace of desegregation, in Charlotte and cities across the South, is why the battle was still being fought in courts more than a decade later.

But what Horack recalls is that he and his colleagues – all white men – respected the law of the land and took the lead. It wasn’t easy: “We each got threats, obscene telephone calls, garbage dumped in the front yard, etc.,” he wrote.

To him, it’s “a fickle finger of fate” that CMS was the district that ended up being hauled before the U.S. Supreme Court in 1970 for resisting integration.

Battle of a lifetime

In the summer of 1969, Horack began working with Waggoner to fight the suit Chambers had brought on behalf of the Swann family after their 6-year-old son was denied a seat at the white school nearest their home.

“Horack was a self-confident man of homespun eloquence, the son of the dean of the Duke law school. He had been raised with a reverence for the law” and was “offended by the notion that Charlotte had failed to do its duty,” Frye Gaillard, a former Observer reporter, wrote in “The Dream Long Deferred,” a history of desegregation in Charlotte.

Gaillard described Horack and Waggoner working 16-hour days to prepare, feeling like David going up against Goliath: “The civil rights wave was surging toward a crest, but in Horack’s view, it had become entirely too powerful.”

Judge McMillan, who sided with the Swanns, was a friend of Horack’s. Horack says he has always respected McMillan as a jurist, but believes the judge was wrong in ordering CMS to bus students for desegregation.

“I still in my heart of hearts believe it was a social decision, not a legal one, not a constitutional imperative,” Horack says now. He says CMS was fighting to preserve neighborhood schools, not segregation.

In his memoir, Horack recalls that he and Waggoner went to the U.S. Supreme Court “prepared and loaded for bear” but quickly learned that nothing can prepare a lawyer for the barrage of questions from the justices, leaving little chance to make a carefully-crafted argument. “Our plan went to hell in a hand basket!!” Horack wrote.

Looking back, forward

Horack watched the years of busing that ensued, followed by the court battles that overturned McMillan’s order and led to the latest incarnations of student assignment. He hears the latest talk about resegregation and diversity, though he no longer follows the issues in detail.

These days, Horack’s battles are with his own aging body. Moving across his apartment can be a struggle.

He enjoys painting landscapes and animals. He writes poems for distribution to fellow Southminster residents, inspired by holidays or events such as Donald Trump’s candidacy.

And sometimes he thinks about his legacy.

His opinions and language are as strong as ever. He describes opponents as nut heads and bleeding hearts. He thinks black people should take more satisfaction from progress made, rather than waving the racial flag and alienating whites – but notes that “if I were black instead of white, I too would probably be an activist.”

Horack knows his views might be dismissed as “sour grapes and prejudice.”

But I hear echoes of Horack’s words in today’s discussions. Reasonable people from various perspectives value neighborhood schools. Plenty say they support diversity but balk at long bus rides.

And if the past year has showed us anything, it’s that most of us see racial issues from our own limited perspective.

When Horack hears that CMS wants to poll people about neighborhood schools and diversity, he feels like he’s seeing a reincarnation of the battles his generation fought.

And he might be right.

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