February 18, 1970
Page 3779
ELEMENTARY AND SECONDARY EDUCATION AMENDMENTS OF 1969
Mr. MANSFIELD. Mr. President, I ask unanimous consent that the unfinished business be laid before the Senate.
The PRESIDING OFFICER. The bill will be stated by title.
The ASSISTANT LEGISLATIVE CLERK. A bill (H.R. 514) to extend the programs of assistance for elementary and secondary education, and for other purposes.
The PRESIDING OFFICER. Is there objection to the request of the Senator from Montana?
There being no objection, the Senate resumed consideration of the bill.
The PRESIDING OFFICER. The question is on agreeing to the modified amendment of the Senator from Pennsylvania (Mr. SCOTT). On this question the yeas and nays have been ordered.
Mr. MANSFIELD. Mr. President, I suggest the absence of a quorum and ask unanimous consent that the time not be charged to either side.
The PRESIDING OFFICER. Is there objection to the request of the Senator from Montana? The Chair hears none, and it is so ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. MANSFIELD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to the amendment. Who yields time?
Mr. SCOTT. Mr. President, I yield 15 minutes on the bill to the Senator from Maine.
Mr. MUSKIE. Mr. President, the stated purpose of the Stennis amendment presents most of us with a dilemma: how can we oppose segregation and discrimination and not support a proposal which says, on the face of it, that it is designed to end school segregation in all parts of the country?
I have concluded that I must oppose the amendment for two reasons: One, it would not end racial isolation and contribute to equal opportunity for quality education; and two, it would retard the implementation of the decisions of the Supreme Court and lower courts in school desegregation cases.
In short, it will not end de facto segregation in the North. There is ample evidence that it will ease up the enforcement of civil rights guidelines in the South.
It is true that the courts are requiring that communities which have practiced deliberate, de jure patterns of school segregation provide more than token evidence of an end to such segregation.
They are being required to do so because they have spent almost 16 years trying to avoid the requirements of the Constitution. The degree of supervision being exercised by the courts in an attempt to insure compliance should come as no surprise.
It is also true that segregation can result from causes other than formal, segregated school systems. It can be the product of segregated housing patterns, and it can be the product of growth patterns and land use controls in large cities and metropolitan areas where lower middle and middle income whites have moved into suburban areas, leaving an increasing number of poor blacks in the central cities. The racial isolation and unequal educational opportunities which result from those patterns need to be overcome – must be overcome.
But the Stennis amendment would not remedy that problem any more than it would remedy de jure segregation, wherever it exists. The Stennis amendment would dilute the enforcement of cases against school districts practicing deliberate patterns of segregation and it would load the courts with the difficulty of interpreting a vague and indirect amendment to the Civil Rights Act of 1964. It would provide no resources for a remedy to the patterns of unequal educational opportunity which concern this Senator. The courts alone cannot provide the remedy. Only the Congress and the executive branch can make the resources available.
The issue before us is not really the busing of children. Several years ago it was estimated that 15 million public school children – about 40 percent of the Nation's total school enrollment – traveled to school on buses. Parents do not ordinarily mind sending their children to school on buses so long as the schools provide a good education. It is what is at the end of the bus ride that counts.
Nor is the issue really the legal difference between de facto and de jure segregation. There is a good deal of evidence that segregation is harmful to children – black and white – whatever its source may be, whether it is compelled by law or arises without the deliberate intent of public officials.
The real problem is how to deal with the racial isolation of children when it exists on a massive urban scale. In many cities in the urban North – Chicago, Philadelphia, St. Louis, among others – the racial concentration of pupils is so great that it is impossible to accomplish integration within the confines of the city. The Stennis amendment will not help these situations one bit. Nor can we trust that the courts will solve the situation, because the courts have not yet come to grips with segregation on a metropolitan scale and they cannot offer the resources and assistance that school officials need to solve the problem.
This, I must emphasize, is not a North-South problem. It has not been solved in Atlanta or New Orleans or Houston any more than it has been solved in Chicago. That is why we need, not a Stennis amendment based on mutual recriminations, but a careful study of the kind proposed by Senators MONDALE and JAVITS with specific recommendations for congressional action because what is involved is the need to restructure massive metropolitan areas, to restructure their housing patterns, to restructure their employment patterns, to restructure their transportation patterns; and this kind of restructuring is not conceivably going to be done in response to the kind of amendment offered by the Senator from Mississippi.
Several years ago, at the request of President Johnson, the U.S. Commission on Civil Rights conducted a major study of racial isolation in urban schools. In carrying out this study the Commission conducted detailed investigations and hearings on segregation in many northern cities and it had the assistance of prominent educators throughout the country, including the present Commissioner of Education. The Commission's report, issued in 1967, examined carefully the extent, causes, and impact of segregation and made specific proposals for remedy.
Although the Congress appropriated special funds for the conduct of this study, it has never evaluated the results. I would suggest that the Commission report be used as a starting point in the investigation proposed by Senators JAVITS and MONDALE and that the committee carefully consider the Commission's proposals and all other approaches that promise a better education for all children.
As I have indicated, I believe the Mondale-Javits substitute offers one way of developing a broad series of programs to help State and local jurisdictions overcome the patterns of isolation and of unequal educational opportunity which have grown up as a result of deliberate discrimination and segregation and the growth patterns of our metropolitan areas. For that reason, I will support it when it is offered. But I think we must take some immediate steps to deal with the problems which are confronting those jurisdictions today.
Therefore, I am prepared to recommend legislation which would provide Federal assistance to State agencies and local school districts which, on their own initiative or in response to court orders, are attempting to end racial isolation and insure equal opportunity for quality education.
Today is not the time to introduce such an amendment, which must be drafted with some care, but I plan to introduce such a bill in the near future.
Mr. MONDALE. Mr. President, will the Senator yield?
Mr. MUSKIE. Yes; I am happy to yield to the distinguished Senator from Minnesota.
Mr. MONDALE. Let me express my deep appreciation for what I regard to be a most perceptive and statesmanlike presentation. I think the Senator helps illuminate this debate by pointing out the deep and pervasive problems that stem from de facto segregation; that is, segregation that arises from growth patterns, residential living patterns, rather than from an official government policy of separating schoolchildren on the basis of color. The Senator has correctly pointed out this is an issue on which the country has yet to focus. The courts have not yet dealt with it. The Department of Health, Education, and Welfare has not dealt with it under title VI of the Civil Rights Act of 1964 because it is specifically prohibited from doing so. And the Stennis amendment in no way deals with the problem.
I think, in all fairness, we must admit that neither the Senate nor the House have focused on the problem. For example, how do you determine and define racial imbalance? What percentage do you use? Does the concept include suburban communities as well as core cities? If you decide that a community is racially imbalanced, what remedies flow from that? Should there be a national policy of busing, and what would that mean to the traditional relationship between the Federal Government and the local school districts? Should there be a voluntary system of busing? If so, under what circumstances and what kind of Federal assistance?
Mr. MUSKIE. Mr. President, will the Senator yield at that point?
Mr. MONDALE. I am glad to yield.
Mr. MUSKIE. The question of racial balance and racial imbalance, which I think is raised by the Stennis amendment, is one that we ought to focus on rather precisely.
I have undertaken, in discussion with constitutional lawyers, lawyers who have followed the school desegregation cases, to determine whether or not racial balance has yet been decreed by the courts with respect to de jure segregation in the South. I understand from them that this concept has been very carefully avoided in any decisions that have as yet been handed down, because of the obvious difficulties involved. If we were to decree racial balance – that is – a precise proportional racial balance as the policy to govern school enrollments across this country, we would in a sense achieve the very limitations upon freedom of choice that the dual school system of segregation imposed upon parents and children for years.
Thus, racial balance is not yet the objective, as I understand it, of the courts in dealing with de jure segregation, nor is it yet, of course, the objective of desegregation policies as stated by Congress itself.
The second point I should like to make which bears on the issue is this: Thus far, no court desegregation order deals with any jurisdictional area larger than a single school district, even in the South. There has been a single desegregation order covering a single district in the city of Atlanta, I think another in the city of Houston, and possibly another in the city of New Orleans.
Even in the South, therefore, those who seek to enforce the law and the court's decisions have avoided plunging into the metropolitan segregation problem at this point, because school busing in a massive area like New York, for example, is totally inadequate to achieve racial balance, even if racial balance were the objective, which it is not as yet.
So this problem of dealing with segregation in these massive metropolitan areas is one which, as the Senator from Minnesota has stated, we have yet to deal with effectively, or indeed to focus on as we should. It is a problem that exists North and South, and it is one with which we should come to grips. It is going to require a massive injection of resources to reconstructure the basic patterns of living which undergird de facto segregation in metropolitan areas, North and South.
Mr. MONDALE. Mr. President, will the Senator yield at that point?
Mr. MUSKIE. I yield.
Mr. MONDALE. I think a study is necessary and it should include an analysis of the relationship of quality education to de facto segregation.
Why is it, for example, that practically all the impoverished Mexican-Americans live together in East Los Angeles? Why is it that practically all the impoverished blacks in Los Angeles live in and around the Watts area? The same phenomenon is seen elsewhere. Is it not possible that a big part of it stems from the fact that for generations we have been denying the poor of this country the basic educational, motivational, nutritional, and other tools that a human being needs to be able to move out into society, to make such choices as where he wishes to live and what kind of business he wishes to pursue? Perhaps the key is to focus on the problem of human deprivation, and to correct these monstrous wrongs before they overwhelm us.
Mr. MUSKIE. I could not agree more completely with the distinguished Senator from Minnesota.
I should like to add one other point: Yesterday, as I listened to the debate – and I listened to it most of the day – I heard the argument made in support of the Stennis amendment that we ought to have one law applicable to all areas of the country.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. MUSKIE. May I have 2 additional minutes?
Mr. SCOTT. Mr. President, I yield the Senator 3 additional minutes.
Mr. MONDALE. Mr. President, may we have order?
The PRESIDING OFFICER. The Senate will be in order. All attaches will take their seats.
Mr. MUSKIE. One difficulty, of course, with the concept of one law governing all areas of the country is that the law must apply to widely varying kinds of situations, and that the same application might not necessarily produce the same result or get at the same problem everywhere.
But there is another concept that I think was mentioned only by the distinguished Senator from Michigan (Mr: HART) yesterday, and that is that our first concern should be that there be one Constitution in this country, applicable to all parts of the country. The constitutional question which has been hit – and the only one that has been hit – by our school desegregation decisions and laws is that of de jure school segregation.
Wherever de jure segregation exists, North, South, East, or West, it ought to be given the constitutional treatment that the courts have decreed. But if we now, by adopting the Stennis amendment, dilute our actions to give that constitutional protection wherever it exists, in order to pursue another form of segregation that has not yet been treated by the courts in a constitutional way, then it seems to me we are making the decision that here are two Constitutions in this country, one that applies to the South and another that applies to other parts of the country.
So my view is that we ought first to come to grips effectively – as I think we gradually are, after 16 years of effort – with the problem of eliminating dual school systems which were decreed by State or local law or official policy. We ought to move immediately to deal with de facto segregation wherever it exists, and it is going to exist increasingly in the South and in the southern metropolitan areas, just as it does in the North; and that treatment is going to have to be far different. To ignore it is to ignore the evidence of our eyes in the great metropolitan areas of our country. We have to restructure – as I said earlier – we have to restructure these metropolitan areas – Atlanta, New Orleans, Houston, New York, Baltimore, Cleveland – if we are really to achieve a free mixture of all races and all ethnic groups in this country.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
Mr. PELL. Mr. President, I yield myself 2 minutes on the bill, to engage the Senator from Minnesota (Mr. MONDALE) in a colloquy which might clarify the issue for those of us who are not lawyers.
As I see it, the problem we have here is that segregation which comes out of previous local law or ordinance has been ruled unconstitutional by the Supreme Court. Is that correct?
Mr. MONDALE. The more accurate word would be segregation that arises from official discriminatory policies.
Mr. PELL. Even the word "discrimination" is invidious, I think; but segregation which arises out of official acts has been ruled unconstitutional. Is that correct?
Mr. MONDALE. That is correct.
Mr. PELL. But segregation that is the result of economic condition, housing or other patterns of life has not been ruled either unconstitutional or constitutional; there simply has been no ruling, is that correct?
Mr. MONDALE. The Brown versus Board of Education case, and those that have followed, have drawn the distinction to which the Senator is now referring. They have not declared so-called de facto segregation unconstitutional, because it does not arise from a State or local governmental act; it arises for private reasons. Therefore, if there is no State action involved, this type of segregation is not declared unconstitutional.
HEW enforcement of title VI of the Civil Rights Act of 1964 follows the Court decisions.
Mr. PELL. But am I correct in also saying that the terms "de facto" and "de jure" are really judicial words of art, that have never before, until yesterday, been adopted in law by the Congress?
Mr. MONDALE. That is correct. Provisions in the Elementary and Secondary Education Act and the Civil Rights Act of 1964, which the Stennis amendment does not change, prohibit conditioning the payment of Federal education funds for education on a requirement that racial imbalance be corrected. So the present policy of the law leaves de facto segregation untouched with respect to Federal assistance programs in education.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. PELL. I yield myself an additional 3 minutes on the bill.
So the present law of the land really is equally applied all over the United States, in that, in those areas of the country where pupil placement practices are ruled unconstitutional because of prior local official acts, steps are taken to rectify the condition. But in those parts of the country where segregation occurs as a result of economic habits, of working habits, or of living habits, North or South, no court action is taken to prevent it.
Mr. MONDALE. That is correct. Moreover, it has been mentioned here that official discrimination has been attacked by the Justice Department and the Department of Health, Education, and Welfare only in the South. The truth is that there have been a number of governmental actions attacking official discrimination in school systems outside the South – in Pasadena; in Los Angeles; in Ferndale, Mich.; in South Holland, Ill., to name just a few. In other words, it is not an attack on the South. It is an attack on official discrimination wherever it is found.
Mr. PELL. What laws applied in the cases in the North that provided the basis for ruling those situations unconstitutional? Were city ordinances or State laws involved?
Mr. MONDALE. The Justice Department or local plaintiffs, for example, charged that their school boards had a policy of sorting out children or faculty on the basis of color and sending them to separate schools, just as they do in the traditionally segregated dual school system in the South.
Mr. PELL. So in those cases they were acting as a matter of policy, but not as a matter of local law or ordinance?
Mr. MONDALE. The court would not draw a distinction between segregation by law or by official administrative policy. Both would be considered illegal and unconstitutional.
Mr. PELL. In other words, one can have de jure segregation in the North.
Mr. MONDALE. And indeed there have been lawsuits that have so found. There have been lawsuits that have held unconstitutional discrimination outside of the South.
Mr. PELL. Speaking as one of the minority Members of this body who are not lawyers – and indeed the majority of our citizens are not lawyers – but do read the press reports, I think it is very confusing when the public tries to follow and understand it. I think the use of the words "de jure" and "de facto" is, to my mind, not a good idea, and I think that perhaps we made an error in incorporating those words into the Stennis amendment.
I wonder whether the real essence of the problem is not that where the segregation comes from official action, it is unconstitutional. In this regard, cannot the Supreme Court either go backward, if it wishes to – I would hope it did not – or forward and rule that segregation that
comes out of the economic or housing patterns is unconstitutional, too? That is within the option of the Supreme Court, is it not?
Mr. MONDALE. That is correct. The Supreme Court has not so ruled. Courts have found, however, the existence of an official discrimination policy in gerrymandering school districts, in discrimination in the assignment of faculties, in the deliberate location of schools as a conscious design to maintain segregated student bodies.
In other words, they have looked with some subtlety beyond just the philosophy and the definition, to see if in fact there is an official policy of discrimination. The courts have made it clear that if there is not an act of government or official policy involved, then it is a case of de facto segregation and it is not reached by the equal protection clause of the 14th amendment.
Mr. PELL. If the Stennis amendment is adopted, would that mean that there have to be a court test to see whether de facto segregation was constitutional or unconstitutional?
Mr. MONDALE. No.
What bothers me about the Stennis amendment is that it does not do one thing about de facto segregation. It decries it; it declares a Federal policy; but nothing at all is done. Nothing would follow from this amendment affecting de facto segregation. What would follow would be an important tool in the hands of those who are trying to stall the elimination of dual school systems, to call the Department of Health, Education, and Welfare and say, "You lay off. You stay away from us until you handle the problem in Chicago," which is an entirely different problem. That is where the mischief is.
Mr. ALLEN. Mr. President, will the Senator yield?
Mr. MONDALE. I yield.
Mr. ALLEN. Will the Senator be kind enough to point out to the junior Senator from Alabama wherein the Scott amendment purports to deal with de facto segregation and to contribute to eliminating that?
Mr. MONDALE. There is a two-part strategy here, at least as far as I am concerned. I mentioned this earlier in the debate.
Mr. ALLEN. I am referring to the Scott amendment.
Mr. MONDALE. It has to be taken in context.
The Scott amendment eliminates from the Stennis amendment that part which could be used to block and imperil the elimination of official de jure discrimination wherever it is found. The Scott amendment would assure that we continue to make progress in that area.
The second amendment, which I will propose after that will create a select committee, an action committee, to study de facto segregation and come up with a series of proposals to deal with this problem in a responsible fashion. The simple truth is that no one knows how to define it, what to do about it, why it exists in the first place, and the range of remedies that might be required to deal with it. We admit that candidly.
It is a serious problem, and we think we should accept the challenge of hypocrisy made by some of the Senators and respond fully by dealing with this problem in the public policy area.
Some say that select committee is a dodge. The truth is that, unlike de jure segregation, we have no precedents. The courts have never dealt with this problem. The Department of HEW has really never dealt with this problem. Very little is known about it, about how to define it, and about what to do about it.
So it is the two actions – the action by the Senator from Pennsylvania and the measure which Senator JAVITS and I will introduce – which hopefully will bring progress in both the de jure and de facto field. I hope we have the support of the Senator from Alabama.
Mr. ALLEN. Will the Senator yield to me an additional 5 minutes?
Mr. PELL. I yield an additional 5 minutes to the Senator from Alabama.
Mr. ALLEN. I appreciate very much the eloquent statement by the distinguished Senator from Minnesota. The Senator failed to enlighten the junior Senator from Alabama as to the way the Scott amendment purports to deal with de facto segregation and to eliminate it in any way.
I invite the Senator's attention specifically to phrase 2 of the amendment which says that no local educational agency shall be forced or required to bus or otherwise to transport students in order to overcome racial imbalance. Translated into simple language, that says that there shall be no busing in the North to eliminate or attack de facto segregation.
So wherein does the amendment of the distinguished. Senator from Pennsylvania seek to attack or eliminate in any way de facto segregation in the North?
Mr. MONDALE. Permit me to say, first of all, that the Scott amendment does do one thing very clearly. It says that wherever there is official discrimination, de jure discrimination, there should be a uniform policy pursued in this land – a uniform national policy. That is what I understand the President's letter – which we have on our desks this morning – to mean.
With respect to de facto segregation, the amendment proposed by the Senator from Pennsylvania leaves the law unchanged and section 2, to which the Senator from Alabama makes reference, merely restates existing law.