October 10, 1972
Page 34538
Mr. MUSKIE. Mr. President, I rise today to join the distinguished Senator from Minnesota (Mr. HUMPHREY) in opposing H.R. 13915, a piece of legislation that seeks not only to shackle our courts but also to repeal a basic commitment to justice.
My difficulties with the bill begin with its title: the "Equal Educational Opportunities Act of 1972." In fact, this legislation renounces the struggle for equality and for full educational opportunities.
Instead of turning back, I wish to remind the Senate of the words President John F. Kennedy spoke in sorrow and determination on the night of June 11, 1963. His speech to the Nation acknowledged the legal and moral shortcomings of our treatment of blacks in America, and even though some of the statistics he used then are now out of date, I want to read part of his remarks and remind Senators of their force and of the pledge they bore.
President Kennedy said:
It ought to be possible . . . for every American to enjoy the privileges of being American without regard to his race or his color. . . Every American ought to have the right to be treated as he would wish to be treated, as one would wish his children to be treated. But this is not the case . . .
This is not a sectional issue. Difficulties over segregation and discrimination exist in every city. in every State of the Union, producing in many cities a rising tide of discontent that threatens the public safety. Nor is this a partisan issue in a time of domestic crisis. Men of good will and generosity should be able to unite regardless of party or politics. This is not even a legal or legislative issue alone. It is better to settle these matters in the courts than on the streets, and new laws are needed at every level, but law alone cannot make men see right.
We are confronted primarily with a moral issue. It is as old as the scriptures and is as clear as the American Constitution. The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated. If an American, because his skin is dark, cannot send his children to the best public school available . . . if, in short, he cannot enjoy the full and free life which all of us want, then who among us would be content to have the color of his skin changed to stand in his place? Who among us would then be content with the counsels of patience and delay?
Too many Negro children entering segregated grade schools at the time of the Supreme Court's decision nine years ago will enter segregated high schools this fall, having suffered a loss which can never be restored. The lack of an adequate education denies the Negro a chance to get a decent job....
We cannot say to ten percent of the population that you can't have that right; that your children can't have the chance to develop whatever talents they have; that the only way that they are going to get their rights is to go into the streets and demonstrate. I think we owe them and we owe ourselves a better country than that.
Therefore, I am asking for your help in making it easier for us to move ahead and to provide the kind of equality of treatment which we would want ourselves; to give a chance for every child to be educated to the limit of his talents.
As I have said before, not every child has an equal talent or an equal ability or an equal motivation. but they should have the equal right to develop their talent and their ability and their motivation to make something of themselves.
We have a right to expect that the Negro community will be responsible, will uphold the law, but they have a right to expect that the law will be fair; that the Constitution will be color blind....
That address – that call to a nation's conscience – impelled the Congress, the following year, to enact the historic Civil Rights Act of 1964, the most far-reaching legislation in the field since the Reconstruction Era. In introducing that legislation at the beginning of 74 days of debate, the distinguished Senator from Minnesota (Mr. HUMPHREY) said:
Freedom requires full freedom. There cannot be half freedom. There cannot be full freedom for whites and little freedom for Negroes.
The former Senator from California, Senator Thomas Kuchel, then the Republican whip, set forth his and his party's concern for civil rights the same day in an address to the Senate that concluded:
The struggle for effective civil rights legislation is not a partisan fight. It is an American fight.
If it is won in the Senate Chambers, and I am confident that it will be, it will be won because men of good will want to make the American theory of equal treatment under law a reality rather than a mockery. It is a fight to keep faith with the hopes and aspirations of those who came before us and those who will come after us. To be true to them, Americans, all Americans, and to the dream we share, we must be true to ourselves and to man's deep desire for freedom and equality of opportunity. If we are true to these ideals, we will truly have kept faith.
Mr. President, the legislation we are considering today mocks those ideals and turns aside from that faith. This bill would have us say that opportunities for some can be more equal than opportunities for others. It would have us decree that the pledge of equality on which America is founded cannot be guaranteed by the processes of law. It would have us break a promise implicit in the Constitution, a promise repeatedly reaffirmed by Congress and the President, the promise to millions of young children that they are entitled to develop their full potential on equal terms with all other American children.
Quite specifically, this bill would have us append a shameful footnote to the 14th amendment to the Constitution, after the sentence in section 1 which says:
No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The footnote this pending legislation would add to that language would say, in effect, "but the courts of the United States may have no power to guarantee equal protection of the laws to all citizens." Let us not mince words. The import of this bill is too clear for euphemisms. Should it be enacted, we would be saying, quite specifically, that no Federal court – finding that school segregation exists and that it does deny "equal protection of the laws" – may order that segregation ended through the use of busing. Further, we would say that all past findings of segregated schooling and all remedies already set in motion are subject to review, and, perhaps, to reversal.
Do we really want to reverse those decisions and go back to the "separate but equal" doctrine of education that obtained from the end of the last century until the Supreme Count in 1954 cast aside that fallacy? Speaking unanimously in Brown against Board of Education, the Court declared that:
In the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.
That decision climaxed 20 years of tireless effort by black parents and their lawyers to vindicate their fundamental rights, not in the streets, but in the courts. They based their struggle on the conviction that justice for blacks, as for all Americans, could be won from white judges in white courts.
We all know what followed their victory. Twisting the Court's order to proceed with desegregation "with all deliberate speed," many school districts adopted instead a policy of "massive resistance." Some public school systems simply closed their doors. Some States appropriated funds to help parents send their children to "private" schools. "Pupil assignment laws" permitted school authorities to send children back to the same schools as before, but with race no longer given as the reason. One by one, again through the courts, black children overcame these new barriers, but by the middle 1960's, most segregated schools are almost as segregated as ever.
Still the struggle went on in the counts. As President Kennedy said, children who had entered segregated first grade classes at the time of the Brown decision were preparing to graduate from segregated high schools. Another entire generation of children had been denied its constitutional rights.
In 1968, 14 years after Brown, the Supreme Court spoke again, and spoke unanimously. In Green Versus County School Board of New Kent County the count stated unequivocally that the Constitution required public school authorities to establish "a unitary, nonracial system of public education – a system without a 'white' school and a 'Negro' school, but just schools." School boards were "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Moreover said the Court, the constitutional rights of black children could no longer be subjected to further temporizing:
The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.
The elimination of segregation in schools is a complex matter, as we all know. Many techniques are available and have been used successfully: pairing of a white and a black school in one enlarged attendance zone; clustering schools and rearranging grades so that children who formerly attended separate schools now go to school together; closing old and dilapidated school buildings – usually black – and dispersing their students through other – usually white – schools; creation of "magnet" or specialized schools with special programs. Some desegregation merely requires the rearrangement of transportation patterns; some requires less and some requires more transportation to be provided to the children. All of these devices were used by local school boards in seeking to comply with the Brown and Green cases.
The question remained, however, whether a school board complied with the Constitution if the steps it took left "white schools" and "black schools" – that is schools which were readily racially identifiable. The Supreme Court answered this question in Swann versus Charlotte-Mecklenburg Board of Education. The Court was once again unanimous, this time speaking through the newly appointed Chief Justice, Warren E. Burger. In Swann, the Court said that:
The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.
Nevertheless, awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. The persistence of predominantly one-race schools raised a presumption that the school system had not been desegregated to comply with the Constitution, and a district court might require a school system to take whatever steps were reasonably necessary to eliminate racially identifiable schools. The Court found it appropriate, in such cases, to require the use of all available devices for desegregation, including measures which might increase the need for transportation of students. In fact, the Court explicitly and unanimously approved the creation of noncontiguous attendance zones and crosstown busing.
This was the Supreme Court's "busing decision." And it is this unanimous verdict that the bill before us seeks to overturn even if, in doing so, it is necessary to scramble the Constitution, tear down the protections that separate the three branches of Government and deny the promises of equality and justice on which America is built.
Obviously, the issue of busing schoolchildren has aroused such passion that its opponents are oblivious to the constitutional dangers of their course. We should remember, however, that America has been through this fight before. In the 1930's as one-room schoolhouses were giving way to consolidated schools, many of the same arguments we hear now were voiced with equal fervor.
The history of pupil transportation in this country is discussed in an article appearing in the March 1972 issue of Inequality in Education, a publication of the Center for Law and Education, Harvard University. Since the past is illuminating, I would like to quote a portion of that article:
Throughout America, the evolution of the public school system has shared three characteristics: (1) smaller districts (with one room schools) have been consolidated into more comprehensive regional schools (often grouping students from different civic jurisdictions) ; (2) state aid has supplemented the school finances raised by the local property tax; and (3) students have been transported from their home neighborhoods to the more comprehensive, state-supported schools.
This third device, transportation, has attracted the greatest acrimony. One list of objections includes:
1. Bad roads and irregular distribution of public highways.
2. Uncertainty about expense.
3. Loss of the home school.
4. Fear that land on the border of enlarged district will depreciate in value.
5. Central school might build a new, large building and the discontinued schools might wish to return to the old regime.
6. Many teachers would be thrown out of employment.
7. Would build up a central school in a rival district. (Jealousy).
8. Disbelief that pupils can be transported comfortably and safely.
9. Doubt whether a graded school is better than an ungraded school.
10. Children would have to leave home too early and could not get back in time to do chores.
11. The evil influences would be much greater, particularly if children are transported to village or town schools.
These arguments were listed by L. D. Harvey, Wisconsin Superintendent of Public Instruction, at a time when the controversy was nearing one of its peaks – 1902. When the problem surfaced again, in 1937, the Arkansas Department of Education compiled a new list:
1. Consolidation destroys community life.
2. The consolidation of districts takes away local control of the schools.
3. The opposition of teachers and principals who may lose their positions.
4. The selfish interests of certain individuals.
5. Objections to transportation.
6. The school will be too far away.
7. Religious and denominational interests.
8. Social distinction between rural and urban pupils.
9. Failure to see the advantages of large schools.
Similar arguments are occasionally heard today.
Past controversies, of course, were resolved in favor of consolidation, state aid, and pupil transportation – much to the general satisfaction of the populace thereafter. (Indeed, this was the course recommended by both state departments of education, although the resolution was probably easier in Arkansas since the school bus had been invented by 1937). There may be a point, nonetheless, to a brief review of school district consolidation and pupil transportation in America. As Professor M. C. S. Noble, Jr. observed in 1939:
"When evaluating such objections, it is well to remember that the school is an agency of society; hence any objections raised by the people must be met in a proper spirit and should receive careful and respectful consideration."
Parents we see have often rebelled against sending their children to distant schools. They were and are concerned over how the children would get home in emergencies or following after-school activities. They were and are anxious about the safety of the school buses. And some believed and still believe that the costs of busing are excessive compared to other educational goals.
It is necessary, then, to recite the facts we do know about busing today and to hope that a few simple truths can be heard above the din.
First of all, the relative cost of bus transportation in the Nation has not changed in nearly 40 years. According to the May 1972 publication of the U.S. Civil Rights Commission, Your Child and Busing–
In 1933, the expenditure for pupil transportation was 3.5 percent of the cost of operating public schools. In 1969-70, it was 3.6 percent.
Last year, the cost of pupil transportation was just over $1.5 billion. out of a total public school expenditure of nearly $44 billion.
In fact, the increased cost of transportation occasioned by desegregation orders has rarely been more than 2 percent of the local school budget, if the capital cost of acquiring buses is amortized over the useful life of the buses. The cost of transportation per child, moreover, is a very small fraction of the cost of compensatory education programs, so, unless communities are prepared to tax themselves far more, busing remains the most economical way to open quality education to ghetto children.
Second, as for safety, the figures compiled by the National Safety Council. show that the school bus is by far the safest way to get to school. The accident rate for bused children is 0.03 per 100,000 student-days against 0.08 for children who walk to school. The fatality rate per 100 million passenger-miles is 0.06 for school buses, 0.24 for other buses, and 2.40 for passenger cars. The yellow bus with its flashing lights is an island of safety for children amid today's commuter traffic in our cities and suburbs.
Third, we have the question of distance and the allegation that time spent riding back and forth to school under court-ordered desegregation plans is exhausting and unhealthy. Again, it is necessary to cite the Civil Right Commission's report last May:
There seems little doubt in the minds of busing opponents that busing steals hour after hour from the children. The facts do not support this result as being a natural and usual consequence of busing.
Indeed, in the South the reverse can and does happen. Desegregation actually can cause many children to spend less time on the bus. This is because they are no longer bused past one segregated school to get to another; hence the trip is shorter.
In Hoke County, North Carolina, for example, the switch from segregation to integration resulted in bus runs that were 15 minutes shorter. In Georgia the number of pupils bused statewide has risen gradually from 516,000 in 1967-68 to 566,000 in 1970-71. During the same period, however, the number of miles logged by Georgia buses has dropped from 53,997,000 to 51,257,000.
Similarly, it is possible that an attendance area in a Northern district might be so drawn that a bus trip after desegregation might be quicker than the ride or walk prior to desegregation.
In most districts where pupils are being bused for desegregation, trips are rarely long. The average travel time reported seems to be 20 to 30 minutes. Trips of an hour or more would be out of the ordinary. A trip of a half hour or so would not bring the pupil home much later than if he walked from a neighborhood school.
The desegregation order for Richmond, Virginia, for example. would call for average bus rides of about 30 minutes, which is less than the current average in an adjacent county involved in the decision.
Of 11 cities surveyed recently by the Center for National Policy Review, the length of the average trip had been increased by more than 15 minutes in only two. In six cities, the average trip remained exactly the same before and after court-ordered desegregation.
Fourth, we have the claim that busing, by itself, is bad for children. Despite this concern, as the senior Senator from Minnesota (Mr. MONDALE) told the Senate in his eloquent address last February 18:
Busing is the way the overwhelming majority of school children outside our central cities get to school. Twenty million elementary and secondary school children are bused. They rode 256,000 yellow buses 2,200 million miles last year . . . And 40 percent of our school children – 65 percent when those riding public transportation are included – ride to school every day for reasons that have nothing at all to do with school desegregation.
If nearly two out of three American youngsters can survive bus rides to school year in and year out, I frankly fail to see reasonable grounds for the fears being expressed again that such transportation will destroy their health and diminish their chances to get a good education.
A couple of years ago, the U.S. Commission on Civil Rights issued a statement in response to the President's March 26, 1970, statement on school desegregation. What the Commission said then is well worth repeating now:
Busing is neither a new nor a unique technique, and its use is not limited to facilitating desegregation. For example, for decades, black and white children, alike, in the South were bused as much as 50 miles or more each day to assure perfect racial segregation. In many cases, busing was the exclusive privilege of white children – black children often were required to walk considerable distances. No complaints then were heard from whites of any harmful effects. Nor was any concern exhibited ever the damage suffered by black children through their deliberate segregation. The Supreme Court in Brown described vividly the nature of the harm to which Negro children were being subjected.
"To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."
Thus the arguments that some now make about the evils of busing would appear less than ingenuous. The plain fact is that every day of every school year 18 million pupils – 40 percent of the Nation's public school children – are bused to and from school, and the buses log in the aggregate more than two billion miles-nine billion passenger miles – each year. It also should be understood that the overwhelming majority of school busing has nothing to do with desegregation or achieving racial balance. The trend toward consolidation of schools, for example, particularly in rural areas, requires extensive busing. It causes no disruption to the educational routines of the children and is treated as normal and sensible.
Amid the controversy over busing in many school systems, North and South, transportation is being used quietly and effectively as a means of bringing about desegregation. The bus rides are not long – in Berkeley, California, for example, a city of 120,000 people, the bus trip never exceeds 20 minutes – and it causes no harm. In the South, of course, the amount of busing needed to bring about desegregation frequently is considerably less than was required to maintain dual school systems. For example, at the Commission's 1968 hearing in Montgomery, Alabama, we found that black students in Selma, seeking to attend trade school, were bused some 50 miles to the nearly all-black Trenholm School in Montgomery, although the Rufus King trade school was located in Selma. Rufus King however, was all-white.
It is a mistake to think of the problems of desegregation and the extent that busing is required to facilitate it solely in the context of the Nation's relatively few giant urban centers such as Chicago, New York, or Los Angeles. In most of our cities the techniques necessary to accomplish desegregation are relatively simple and busing creates no hardships. The experience in communities which have successfully desegregated could easily be transferred to cities of greater size.
Even in giant urban centers, progress in desegregation does not require interminable bus rides or disruption of our children's education. The President, in discussing the recent California court decision requiring desegregation of the Los Angeles school system, quoted "local leaders" as estimating that the total cost of busing will amount to 40-million dollars over the next school year. This estimate represented the contention of the defendants in that litigation. It was presented to the court for the purpose of arguing against the feasibility of desegregation in that city's school system. In fact, the court rejected this estimate as unrealistic.
In Los Angeles, as in other cities, substantial desegregation can be accomplished through relatively simple devices such as alteration of existing school attendance areas, school pairing, and the establishment of central schools. To be sure, transportation is necessary in giant urban centers as it is in smaller cities, but here too, it is false and defeatist to assume that the bus rides must be lengthy or that the education of our children will be disrupted.
In the Commission's view, the emphasis that some put on the issue of busing is misplaced. As most Americans would agree, it is the kind of education that awaits our children at the end of the bus ride that is really important.
Let us be frank. We do not really know how many more children will have to take school buses if the courts are permitted to include busing among the remedies for segregated schooling. The Department of Health, Education and Welfare believes the number of children being bused under court-ordered desegregation plans equals some 600,000. The Department of Transportation estimates 100,000. Last year a HEW survey of the Nation's 100 largest school systems found 23 operating for the first time under school desegregation orders. In only three of those districts was the proportion of bused children significantly higher after desegregation than the average proportion of bused children elsewhere in the same state.
At this point, I believe it is appropriate to say something about the neighborhood school concept.
The neighborhood school was extolled by the President in his 1970 statement and is given a Congressional imprimatur by the pending legislation. The Commission on Civil Rights, in its reply to the President's 1970 statement, questioned whether the neighborhood school should be one of the cornerstones of educational policy. It said:
In his statement, the President emphasized the desirability of maintaining the neighborhood school principle. For several reasons, the Commission questions whether this should be one of the cornerstones upon which national educational policy rests.
For one thing, neighborhood schools do not represent the invariable principle governing school attendance that many believe. Frequently, neighborhood attendance is subordinated to other educational goals. In some cities, for example, handicapped children or academically talented students attend schools other than the one in their neighborhood.
Further, the Commission has found numerous instances of departures from neighborhood attendance policy that have had the effect of promoting racial segregation. where faithful adherence to the neighborhood school principle would have assured integrated student bodies. In Cleveland, Ohio, and San Francisco, California, for example, optional zones were created to permit white students who otherwise would have attended racially integrated schools to choose instead nearly all-white schools out of their neighborhood. Transfer plans, ostensibly instituted to relieve overcrowding, also have had the effect of promoting racial separation.
There is, in fact, a good deal of inconsistency and hypocrisy that all too often surround the lip service paid to the neighborhood school principle. Courts, as well as school officials, have had little difficulty in dismissing its importance for the purpose of maintaining segregation. In Cincinnati in 1876, for example. black children who had to walk four miles each way to attend a black school brought suit to enter the much nearer white school. The court refused and said: "Children cannot cluster around their schools like they do around their parish church."
Several years ago, then Chief Judge Tuttle of the U.S. Court of Appeals for the Fifth Circuit, in a case involving the Mobile, Alabama, school system, made some observations on this point:
Both in testimony and in the briefs, much is said by the appellees about the virtues of "neighborhood schools." Of course, in the brief of the Board of Education, the word "neighborhood" doesn't mean what it usually means. When spoken of as a means to require Negro children to continue to attend a Negro school in the vicinity of their homes, it is spoken of as a "neighborhood" school plan.
When the plan permits a white child to leave his Negro "neighborhood" to attend a white school in another "neighborhood" it becomes apparent that the "neighborhood" is something else again.
As every member of this court knows, there are neighborhoods in the South and in every city of the South which contain both Negro and white people. So far as has come to the attention of this court no board of education has yet suggested that every child be required to attend his "neighborhood school" if the neighborhood is a Negro school. Every Board of Education has claimed the right to assign every white child to a school other than the neighborhood school under such circumstances.
And yet, when it is suggested that Negro children in Negro neighborhoods be permitted to break out of the segregated pattern of their own race in order to avoid the "inherently unequal" education of "separate educational facilities," the answer too often is that the children should attend their neighborhood schools. So, too, there is a hollow sound to the superficially appealing statement that school areas are designed by observing safety factors, such as highways, railroads, streams, etc. No matter how many such barriers there may be, none of them is so grave as to prevent the white child whose "area" school is Negro from crossing the barrier and enrolling in the nearest white school even though it be several intervening 'areas' away.
There also is some question whether the narrow attendance areas served by neighborhood schools truly represent the "neighborhood" as we currently understand that term. In fact, the meaning of neighborhoods has changed over the years. Recent development in the pattern of urban life – rapid population shifts and the growing distances city residents travel for recreation, business and shopping – have diffused traditional neighborhood patterns. They no longer are the self-contained, cohesive communities they may once have been. In short, it is doubtful that adherence to the neighborhood school principle is required by considerations of close community ties in narrow geographic areas. The schools have an opportunity, by broadening the geographical areas they serve, to expand the experience of children beyond that of the restricted confines of their narrowly defined neighborhood, and establish the school as a broader "community" or "neighborhood" in which the lives of all who attend can be enriched.
If adherence to the neighborhood school principle frequently interferes with efforts to promote desegregation, there also is some question concerning its value as a means of providing quality education. The essence of the neighborhood school is a self-contained unit serving a relatively small student population. In larger units, however, economies of scale frequently make possible the offering of a broader curriculum and the provision of new and expensive equipment that are not economically possible in schools which serve small numbers of students.
Many rural areas, for example, in an effort to improve the quality of education, have abandoned the tradition of small individual school houses in favor of consolidated schools serving much larger student bodies. In short, adherence to the neighborhood school principle under current conditions not only tends to interfere with efforts at desegregation. but also has little bearing on efforts to improve the quality of education and in some cases may even thwart those efforts.
The Commission believes that ideally and ultimately, resolution of the problem of school segregation lies in residential desegregation, which will remove the emotional issues of the neighborhood schools from the area of civil rights controversy. Residential desegregation can be accomplished through laws and policies designed specifically to secure an open housing market, and administered with dedication and purpose. This does not mean, however, that efforts to desegregate the schools should wait the day when neighborhood desegregation has been achieved. We cannot afford to make integrated education wholly dependent upon open housing, for to do so would be to consign at least another generation of children to education in racially isolated schools.
What, then, are the legitimate and factual concerns about busing? The figures demonstrate conclusively that there is no reason to fear for the safety of children who are bused to school.
There is simply no safer way to get there. And busing costs are a tiny fraction of the school budget. Take the example of Norfolk, Va., which has never provided transportation for any of its students, but now has been ordered by a court to do so in connection with desegregating its schools. The amortized cost of the entire bus fleet will be $600,000 per year out of an annual school budget of $35 million. Ironically, the Nixon administration has made certain that the entire cost of busing for desegregation will have to be borne by hard-pressed local taxpayers, because it has stopped granting Federal funds for transportation under the Emergency School Assistance Act and title I of the Elementary and Secondary Education Act.
As with everything else, however, busing can be carried too far. There are legitimate concerns. Children should not have to ride so far and for so long as to sap their energies for study and for play. Under desegregation plans, children should not be forced to attend schools which are inferior. Along with desegregation, our schools must be upgraded and made equal. I supported the Scott-Mansfield amendment to the omnibus education bill which we considered earlier this year, because it provided safeguards against the busing of children which would risk their health or significantly impinge on their education or place them in inferior schools. Ultimately, the Congress adopted even more stringent limits on busing in title VIII of the Education Amendments of 1972. In addition, the Supreme Court in the Swann case specified that the time or distance of travel under desegregation plans should not be "so great as to either risk the health of the children or significantly impinge on the educational process."
But the bill now before us is not needed to express again these legitimate concerns and provide safeguards against excessive busing. The Congress and the Supreme Court have already provided the necessary limitations and guidelines. It should now be left to the courts to work out specific desegregation plans for individual school districts so as to guarantee the constitutional rights of our children.
Last, but by no means least, there is a widespread concern about school violence – assault, extortions, drugs and interracial fighting. Here there are not statistics, but there are facts. The drug problem is certainly worse in the ghetto than in white middle-class areas; but many suburban schools already have a severe drug problem and there is no evidence that it is better or worse in schools which are integrated. We must deal vigorously with drugs in our schools, but the drug problem is no reason to keep them segregated.
As for individual and group violence, there is no evidence of any long-term increase under desegregation. We all know that fighting in schools is an old phenomenon. But when there is a racial incident, we hear about it. If kids brawl in the cafeteria or the school yard, it simply is not news unless there is a race angle to the story. Moreover, school fights between different ethnic and social groups have been common in the past without it being suggested that children from different groups should not attend the same school. Although it is probably true that formerly white schools experience some increase in tension in the early days of desegregation, this is often stimulated by the behavior of adults and it generally subsides within a few weeks.
We know integration is difficult. But we also know that it can be successful in human terms. Willie Morris has written about it in poignant terms in Yazoo, the story of his hometown in the Mississippi Delta. Concluding his book, he said:
One of the burdens of the people of all the Yazoos who share this place and this involvement in a common history – a history of anguish and cruelty and inhumanity, but also of courage and warmth and rare nobility – is to warn their fellow Americans of the terrible toll that bitterness and retreat can take; for this will give the nation some feel of itself, and help it to endure.
This bill is a product of bitterness, a call to retreat. We must offer, instead, a reasoned appeal to hope. For, if we abandon the effort to assure full equality in educational opportunity, we will stifle hope and, if we pass this bill, we will be turning our backs on the goal of a decent education for all American youngsters. And, if we enact this legislation, as I warned before, we will start a terrifying process of undermining the Constitution and the courts' role as the exclusive arbiter of the Constitution.
This bill has many faults, but there are two provisions which are especially dangerous: The first of these is section 403(a), which provides that–
No Federal court or agency shall order the implementation of a plan (that is, a school desegregation plan) that would require the transportation of any student to a school other than the school closest or next closest to his place of residence which provides the appropriate grade level and type of education for such student.
In an unbroken line of unanimous decisions extending over 17 years, the Supreme Court has made clear the duty of every school system to desegregate its schools. In Green, Swann, and a host of other decisions, the Court has made clear that this duty requires school authorities to make every effort "to achieve the greatest possible degree of actual desegregation." The Court has approved the mandatory use of all available devices, including busing. It has explicitly sanctioned, in Swann, the use of noncontiguous zoning, stating that such zones may, indeed, "be on opposite ends of the city." Section 403(a) would overrule Swann and countless other decisions of the Supreme Court and the lower Federal courts as well.
One of the justifications advanced for section 403 (a) is that it does not restrict or diminish constitutional rights, but only the remedies available to cure the violation of such rights. Now, the first thing every law school student learns is that without a remedy there is no right. A moment's thought reveals why this is so. If a child has the right not to be assigned to a segregated school but the courts have no power to order him enrolled in a desegregated one, does that child truly have a right?
The Supreme Court dealt squarely with this very point in a second Swann decision, North Carolina Board of Education against Swann. There the Court unanimously declared unconstitutional a State statute which sought to bar the assignment of pupils on the basis of race and to prohibit the use of public funds for involuntary busing of pupils to achieve racial balance.
The North Carolina statute was found to "conflict with the duty of school authorities to disestablish dual school systems" and to "obstruct the remedies granted" by courts seeking to enforce that duty. Surely if a State legislature may not enact a statute which obstructs or restricts the power of Federal courts to remedy violations of the Federal Constitution, the Congress cannot and should not assert the power to do so. Any such attempt would clearly run afoul of the fifth amendment, which restricts the power of Congress in much the same manner as the 14th amendment restricts the power of the States.
But proponents of this bill point to section 5 of the 14th amendment as authority for section 403(a). This is cruel irony. Section 5 empowers Congress "to enforce, by appropriate legislation, the provisions of the amendment. Section 403(a) would equate the power to "enforce" with the power to "restrict." This interpretation distorts the meaning of language. We cannot "enforce" constitutional rights by "restricting" ways to remedy violations of those rights.
The very idea of twisting logic as this bill's supporters would have us do reminds me of Alice's conversation with Humpty-Dumpty in Wonderland.
"But 'glory' doesn't mean 'a nice, knockdown argument,' Alice said.
"When I use a word," Humpty-Dumpty replied, "it means just what I choose it to mean – neither more nor less."
"The question is whether you can make a word mean so many different things."
"The question is," said Humpty-Dumpty, "which is to be master – that's all."
In support of their argument, proponents refer to a dissenting opinion in the case of Katzenbach against Morgan, which upheld the Voting Rights Act of 1965 as an appropriate use of Congress' power under section 5 of the 14th amendment. What they ignore is the majority's very clear rejection of their argument:
Contrary to the suggestion of the dissent, section 5 does not grant Congress power to exercise discretion in the other direction and to enact “statutes so as in effect to dilute equal protection and due process decisions of this Court." We emphasize that Congress' power under section 5 is limited to adopting measures to enforce the guarantees of the Amendment; section 5 grants Congress no power to restrict, abrogate, or dilute these guarantees. Thus, for example, an enactment authorizing the States to establish racially segregated systems of education would not be – as required by section 5 – a measure "to enforce" the Equal Protection Clause since that clause of its own force prohibits such State laws.
The final argument relied on to support section 403 (a) is more abstruse. It rests on Congress' power under article III of the Constitution to create lower Federal courts and regulate their jurisdiction, and to regulate the appellate jurisdiction of the Supreme Court. This argument has been rejected in a thorough opinion of the Association of the Bar of the City of New York. Its fundamental defect is that it ignores the Constitution's basic grant of power to the Federal courts to decide "all cases arising under the Constitution."
Let me read part of the report of the Association of the Bar of the City of New York–
Proponents of the proposed legislation have argued that it merely restricts the jurisdiction of Federal courts, denying or limiting the use in these courts of a particular remedy, and that Congress has clear power to do this under Article III of the Constitution as well as existing case law.
Article III of the Constitution vests the judicial power of the United States in the Supreme Court "and in such interior Courts as the Congress may from time to time ordain and establish." It provides among other things that the judicial power shall extend to "all cases ... arising under this Constitution." It gives the Supreme Court original jurisdiction in certain specified cases and provides that that Court shall have appellate jurisdiction "with such exceptions and under such regulations as the Congress shall make." The few cases arising under this Article have made it clear that the Congress has substantial power to restrict the jurisdiction of the Federal Courts, including the appellate jurisdiction of the Supreme Court. Ex Parte McCardle.
In McCardle, Congress had enacted a statute withdrawing jurisdiction from the Supreme Court to hear appeals in habeas corpus cases. The statute was passed during the pendency of a particular appeal, with the deliberate intent to prevent Supreme Court review of the case. The Supreme Court upheld the power of Congress to do so, and dismissed the case, citing the provisions of Article III of the Constitution, giving Congress the power to make exceptions to the appellate jurisdiction.
But the McCardle case, assuming arguendo that it is still good law, does not stand for the proposition that Congress has unlimited power to prevent the Supreme Court from considering Constitutional claims. The Supreme Court retained the power to issue writs of habeas corpus in the exercise of its original jurisdiction. The withdrawal of appellate jurisdiction therefore merely closed one avenue and did not prevent access to the Court. Indeed, within months after the McCardle decision the Court held that it had the power in the exercise of its original jurisdiction to resolve the substantive issues raised by the McCardle case. Ex Parte Yerger.
Aside from the McCardle case, there appears to be little authority to support Congressional interference with the courts in enforcing the Constitution.
While the Emergency Price Control Act of 1942 prohibited the Federal District Courts from reviewing the validity of regulations made pursuant to the Act, the legislation also established a special court, the Emergency Court of Appeals, to adjudicate these controversies. Its decisions were made reviewable by the Supreme Court. That legislation was upheld because it preserved a full remedy in the Federal Courts. See Yakus v. United States and Lockerty v. Phillips.
The line of cases under the Norris-LaGuardia Act, which declares that the Federal Courts have no "jurisdiction" to issue injunctions in certain labor disputes, do not involve Constitutional matters. That Act therefore does not purport to deny the right of an injunction to vindicate Constitutional rights.
In the present situation it is apparent that in many cases, as a practical matter, no effective alternative to busing exists in carrying out the mandate of Brown v. Bd. of Education to desegregate schools where segregated residential patterns exist. In many such situations, the denial of busing as a remedy will constitute the denial of any effective remedy in redressing the unconstitutional condition of segregated schools. Thus, while purporting only to prohibit or restrict a particular remedy, Congress would in fact be requiring the courts to reach a particular result at odds with previous court decisions as to what is Constitutionally required.
Article III has to be read with the rest of the Constitution, and, as shown above, we believe that the proposed legislation clearly violates the Fifth Amendment. Leaving aside the question of whether or not Congress may take away from an individual the opportunity to obtain a judicial determination in a Federal court of constitutional rights, it can scarcely be seriously contended that, under the guise of limiting the jurisdiction of the Federal courts, Congress may do indirectly what it may not do directly, that is, restrict the scope of the Fourteenth Amendment.
Since Marbury against Madison was decided in 1803, it has been a fundamental principle of American government that the courts are the final arbiters of constitutional rights. Article III has never been held to permit Congress to withdraw from all of the Federal counts the power to consider asserted violations of constitutional rights and to provide necessary remedies for such violations. To give such a reading to article III would be to give Congress the power to nullify the Constitution.
The only occasion on which Congress did seek to restrict the Federal judicial power to enforce constitutional rights was when it withdrew the Supreme Court's jurisdiction to hear appeals in habeas corpus cases after the Civil War, an action which was upheld in ex parte McCardle. But that legislative restriction left the jurisdiction of the lower Federal courts intact, permitting them to continue to protect constitutional rights as fully as before. The legislation also left intact the Supreme Court's original jurisdiction – which the Court subsequently exercised in ex parte Yerger to decide the very question which Congress had sought to keep from the Court.
The legislation upheld in ex parte McCardle is therefore no precedent for the bill now before us.
Nor is the Norris-LaGuardia Act, which prohibited the Federal courts from issuing injunctive relief in labor dispute cases. The cases covered by that legislation did not involve constitutional rights, and the legislation therefore did not constitute a congressional restriction on the Constitution. This bill, by contrast, breaks utterly with the past and shatters the barrier wisely erected by the Founding Fathers between the legislative and judicial branches.
Prof. Alexander Bickel of the Yale Law School, widely known as an opponent of busing, has described the bill before us as "recklessly radical in undertaking to alter the balance of power between the judiciary and the political institutions of the Federal Government." He says:
Congress ought not be held to have power to take away a remedy for a constitutional violation in circumstances in which the courts have decided that it is the only and the essential remedy ... If Congress has this power, it has in fact, if not in form, the power to alter the substance of most constitutional rights, not merely the right to go to one or another school.
No warning could be more clear. If we assert today the power to eliminate judicial remedies for violations of the equal protection clause of the 14th amendment, what is to stop our successors on another day from foreclosing the courts from adequately protecting other basic rights – the right of free speech, free press and religion?
If, in this session, we tell the Judiciary that its powers in desegregation cases are curtailed, what is to prevent a future Congress – in another moment of partisanship and passion – from telling the courts that they cannot provide citizens any recourse against wire-tapping, if some Attorney General decides wiretapping is called for? Or what is to stop our successors in this Chamber from decreeing that Federal courts have no protection to offer against coerced confessions or mass arrests?
We are contemplating in this legislation a major break with precedent. Let us, at least, acknowledge clearly the danger we run.
If there were any doubt as to the purpose of this bill to overstep constitutional bounds, its history in the other body lays the doubt to rest. Two amendments were offered during debate stating that none of the bill's provisions were to be construed as inconsistent with constitutional nights or remedies. The sponsors urged their defeat and they were vote down.
One Member of the other body who has been a consistent and outspoken opponent of the anti-busing legislation is the distinguished senior minority member of the House Judiciary Committee, Representative WILLIAM M. McCULLOCH of Ohio. Representative McCULLOCH, who has championed civil rights legislation in Congress throughout his career, had this to say on April 12, 1972, about the anti-busing legislation proposed by the leader of his own party:
On March 20, 1972, I introduced H.R. 13915 at the request of the Administration. That bill, if enacted, would prospectively limit, for a time, the power of the Federal courts to desegregate public schools where desegregation would require new or additional busing of school children.
Certainly, Congress has in the past enacted legislation limiting the remedies that the Federal courts might give in particular cases. But never like this. In all prior instances of limiting legislation, Congress had either made certain that other effective remedies were available, such as in Cary v. Curtis and ex parte McCardle, or had eliminated a remedy where it had already constitutionally eliminated the right, as with the anti-injunction provision of the Norris- LaGuardia Act.
But Congress does not have the power to eliminate constitutional rights, and it is not uncommon that the only effective remedy for the unconstitutional wrong of school segregation involves the busing of school children. Could it be that although Congress does not have the power to eliminate constitutional rights, it can abridge them indirectly by denying the only effective remedy for their violation! If so, I submit that our written charter, our living Constitution, breathes no more.
Make no mistake about my question. I do not deny to Congress the power to regulate the jurisdictional growth of the Federal courts. Rather, I suggest that Congress cannot use the courts to accomplish unconstitutional ends. This is what Marbury v. Madison and United States v. Klein tell us. Once the Federal courts are granted jurisdiction over the subject matter, the courts decide the cases according to the law of the land, and congressionally enacted limitations on the powers of the courts to reach the result required by the law of the land are null and void. Congress need not use the Federal courts, but if it decides to do so, it cannot prostitute the courts for an unconstitutional end.
Indeed, the end is unconstitutional. In Green and in Alexander, the Supreme Court held that the Constitution required school desegregation 'now' and 'at once.' How then can Congress defer the right to desegregated schooling until July 1, 1973? And if it could, how could it justify the delay?
As providing time to seek answers to questions which have already been answered by the Supreme Court? As providing time to adopt a bill that would prohibit busing younger students even short distances to remedy constitutional violations?
It is with the deepest regret that I sit here today to listen to a spokesman for the Administration asking the Congress to prostitute the courts by obligating them to suspend the equal protection clause for a time so that Congress may debate the merits of further slowing down and perhaps even rolling back desegregation in public schools.
I fear that long after I have ceased representing the fourth district of Ohio, the nation will be paying the price for the politics of 1972, as we have long paid the price for the politics of 1876.
Wasn't it only yesterday that we in Congress told our deprived citizens to press their claims not in the streets but in the courts? Now, when some of them have taken their case to the courts and under the law of the land have won victories, it is suggested that it is time to change the rules. What message are we sending to our black people? Is this any way to govern a country? Is this any way to bring peace to a troubled land?
In addition to being constitutionally unsound, section 403 (a) ignores the realities of school systems. For example, what is the "next closest" school? Is it the one which is closest as the crow flies? Closest as the child walks? Or closest by existing or potential school bus routes? Does "closest" refer to nearness in distance or in time? In determining which schools are "closest" may a school board consider safety? Efficient bus routing? Must the board ignore the fact that the next closest school is overcrowded while the third closest has empty desks? As Chief Justice Burger has said in his Swann opinion, "maps do not tell the whole story."
Section 403(a) may make more difficult the efforts of local school boards to comply with the requirements of the Constitution in the way which best serves sound education goals. There are a variety of techniques which have been successfully used to desegregate school systems; pairing schools, closing antiquated buildings, creating magnet schools, organizing clusters of schools with different grades and different specialties serving an enlarged attendance area. Some of these methods enable school authorities to improve the education services offered to the entire community. But where they require assignment of students beyond the "next closest" school, all of these methods would be prohibited by this bill.
It is true that section 405 permits the adoption of a plan which violates section 403 "if such plan is voluntarily proposed by the appropriate educational agency." The term "voluntarily proposed" does not appear, however, to cover plans proposed by school boards by order of a court.
Accordingly, the bill appears to prevent local school systems from complying with the Constitution in the most educationally desirable way. A similar objection applies to section 402, which restricts the means by which Courts and HEW may order the accomplishment of desegregation.
It is most unwise for the Congress to lay down a rigid national rule on school desegregation. As Chief Justice Burger said in Swann:
Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations.
Let me point out an example which might particularly pain the sponsors of this legislation:
Consider a black residential enclave surrounding a black segregated school. There are two smaller white schools nearby. It appears that the bill would permit a court to order the black school paired with the nearest white school but not also with the one slightly further away. The result would be two majority black schools and one all white school, instead of three majority white schools of approximately equal composition.
The "next closest" restriction has another effect which perhaps the sponsors have not had the opportunity to consider fully. Census data discloses that the neighborhoods closest to black ghettos are most frequently occupied by working class white residents. Section 403 (a) will permit busing only to schools on the fringes of the ghetto. The bill thus places the burden of school desegregation squarely on working class city dwellers while the more affluent residents of middle class neighborhoods and the suburban refugees from reality can remain aloof and protected.
The effects of section 403 (a) are easy to foresee. In the first place, mixing impoverished black children with the poorest white children is, educationally, the least effective form of desegregation. It may also produce the greatest degree of racial hostility. It will almost certainly encourage "white flight" and play into the hands of "blockbusters" in the real estate brokerage community. Section 403 (a) is a prescription for neighborhood instability and is bound to produce an expanding ghetto. By the same token, it will foreclose efforts, which we all should encourage, toward combining school desegregation with neighborhood stability.
The consequences of this "next closest" school provision have been discussed editorially by the Washington Post and in a column in the New York Times by Tom Wicker. I would like to read from these analyses. First, on September 13, 1972, the Post editorial said:
In their eagerness to do themselves some political good this year, the House members who voted for these and other features of HR 13915 displayed a stunning indifference to the possible real-life consequences of such a statute were it to become law. Beyond the prospect of disruptive relitigation of closed cases throughout the South and beyond the prospect of newly exacerbated racial conflicts among the poor in the big cities of the North, there is the prospect that communities all over the country would find themselves in a new financial bind of Congress' making – one that might even inspire nostalgia for the days of the complicated busing order. For among the methods by which this legislation seeks to eliminate busing is that of setting forth a list of preferable remedies the courts or the executive branch can compel. And among these alternatives which the courts would be encouraged to invoke is that of ordering the closing down of old or "inferior" schools and the construction of new ones. That this provision could cost affected communities plenty and also interfere with their ability to make their own plans and control their own taxes, does not seem to trouble those legislators who want an "anti-busing" record at all costs. Why should it, when the cost is not one that they themselves must bear?
Indeed, the House rejected an amendment to HR 13915 that would have provided Federal financial help in building such new schools.
Four days later in his New York Times column, Mr. Wicker wrote:
Prince George’s County, Maryland, is a sprawling sub-suburban area outside Washington, D.C. that contains acre after acre of low-to-middle-income housing, and which operates the tenth largest school system in the nation. Twenty-four per cent of its 163,000 pupils are black; but four years ago, in 1968, only 15 per cent were black.
If Prince George’s is allowed to look upon itself as a cohesive whole, it can distribute this startling increase in black pupils, via busing, throughout all county schools in rough proportion to their numbers. In fact, a study by the Lambda Corporation shows that Prince George’s schools could be so balanced by busing "only slightly more" than 47 per cent of its pupils who already are bused for purposes other than desegregation.
This would produce what is contemptuously known to President Nixon and others as "racial balance" in the schools, but it also would prevent (a) the development of all- or nearly all-black schools, and (b) the concurrent development of all-black suburbs and neighborhoods as fearful whites fled before the influx of black families and pupils.
Prince George’s would not be able to deal with the problems of desegregation in this sensible manner, however, if a bill already passed by the House of Representatives, and conforming closely to President Nixon's ideas, can win approval in the Senate. This measure, which members of Congress flocked to support under the banner of protecting working-class white Americans from the supposed evils of racial balance, would prevent Federal courts from ordering any busing at all until every other remedy had been exhausted and would prevent even such last-resort busing to any but the next closest school to a pupil's home. Busing across a school district line would be absolutely prohibited.
This is a measure that sounds perfectly logical – don't bus a pupil if you can help it, but if you have to bus him or her, bus no farther than necessary. The only problem is that, when analyzed, it turns out to be a formula that would put the heaviest burdens of desegregation on low-income, working class white neighborhoods, and which would allow affluent white suburbs and neighborhoods to escape desegregation, as they usually have in the past.
This is because, if pupils can be bused no farther than the next closest school and then not across district lines, no county or metropolitan area or city can be considered as a whole for purposes of desegregation; and in that case those white neighborhoods nearest geographically to black neighborhoods are going to have their schools paired with presently all-black schools. This may leave a line of escape for whites in such neighborhoods who can afford to flee to better neighborhoods or to the suburbs; but those who cannot so escape are precisely those low-income, working, often ethnic Americans for whom so many crocodile tears currently are being shed by politicians and some segments of the press.
Take the case of Richmond. Virginia. There, when busing originally was ordered to achieve desegregation, substantial "white flight" took place, with the result that the city school district became about 70 per cent black, while the school districts of two suburban counties became about 91 per cent white. Now Federal Judge Robert R. Merhige has ordered all these districts combined into one, which would produce, through busing, a district each of whose schools – suburban as well as city – would be roughly 66 per cent white and 33 per cent black. Whatever else may be said of this plan, it does not permit the more affluent to escape desegregated schools while giving the less affluent no such escape.
But the House bill now pending in the Senate would prohibit such court orders; in a city like Richmond, the affluent would continue to move away – defeating the purposes of desegregation, leaving behind schools nearly all-black and usually without the tax base or the political influence required for anything like equality of education, and angering those whites without the means to flee.
The pending bill is somewhat stiffer than the one Mr. Nixon recommended, but he has not repudiated it and in this election year obviously must support it as being closest to his own proposals. It is ironic. therefore, that so many working people – for instance, about six of ten former Wallace voters – now indicate their preference for the President, in many cases because of the busing issue. They apparently believe that he would spare them from busing and therefore from desegregation.
But anybody in a blue collar who actually believes Richard Nixon is his true friend ought to think through the President's busing proposals as generally reflected in the House bill. Like so many other policies of this Administration, they are tailored for the well-to-do suburbanite; only the rhetoric is aimed at people with calluses on their hands.
The second provision of this bill which must particularly concern us in section 406. This section permits any school system which is subject to a court-ordered or HEW-imposed desegregation plan to secure the reopening and modification of the plan to comply with the provisions of the bill – that is to conform to the bill's limitations. This provision invites a rollback in the process of desegregation which began 18 years ago with Brown against Board of Education. It is perhaps the most disruptive and pernicious provision in the entire bill. Perhaps that is why it was deleted by the House Education and Labor Committee from the administration bill which was proposed to it.
Why is this provision, which evidently seeks only to assure a consistent, nationwide standard of desegregation, so disruptive? In the first place, it permits the reopening of every school desegregation case – including every case affirmed by the U.S. Supreme Court itself – going back to Brown against Board of Education. Approximately 1,350 cases could be reopened. Districts which have been operating quietly and successfully under court decrees or HEW plans would face a new era of uncertainty, and parents would confront new bouts of frustration.
Section 406 permits the reopening even of cases which do not involve busing at all, on the ground that the remedies applied do not conform with the rigid priority list embodied in section 402 of the bill. Attorney General Kleindienst made this clear when he testified before the House Judiciary Committee that under section 406, "all desegregation cases, even when busing might not even be an issue involved in it," could be reopened.
The text of the Attorney General's testimony on this provision before Subcommittee No. 5 of the House Committee on the Judiciary on April 12, 1972, is clear on this point and is as follows:
Mr. McCLORY. In reviewing H.R. 13915 in your statement, you mention that the Congress is considering a permanent solution to the busing problem – one that permits reopening of existing busing orders.
Mr. KLEINDIENST. Right. Section 406 of the substantive legislation says that upon the application of any school agency, every desegregation order that exists in this country may be reopened to see to it that it meets the standards set forth in this legislation. And that, it seems to me, is the great remedying feature of this legislation. I do not think that there is anybody in the country that can speak with more convincing clarity and persuasion than the Congress of the United States, as it has done so many times in the past, and say that we have a national problem here, that there is a national standard that is going to be met by everyone. If you are going to say that, then it seems to me that you have got to permit the reopening of cases to come within that standard. Some will require more and some will require less busing.
Mr. McCLORY. Is it your opinion that the enactment of HR. 13915 would provide a right then to reopen all of the desegregation cases that have already been litigated, even those that have been decided by the Supreme Court?
Mr. KLEINDIENST. And if reopened, with respect to many where there is no busing, under this law there could be some busing.
Chairman CELLER. Will the gentleman yield?
Mr. McCLORY. Would the right to reopen apply only to cases which involve busing?
Mr. KLEINDIENST. No. sir.
Mr. McCLORY. Are we talking about only busing cases or all desegregation cases?
Mr. KLEINDIENST. All desegregation cases, even where busing might not even be an issue involved in it. You are going to have an opportunity for a school agency to come into a Federal district judge and say, this order was entered into 12 years ago. Congress has laid down a national standard and we want to reexamine this and apply the remedies and priorities set forth in the national standards, and obtain a new order in this particular case.
Mr. McCLORY. So all desegregation cases that have been litigated and in which there have been final decisions can be reopened?
Mr. KLEINDIENST. Yes, sir; and if they reopen them, the Court could order, as a remedy, busing, where they had none before.
Even southern school superintendents have expressed their dismay at the prospect of a new period of instability, uncertainty and tension in their schools. Desegregation would become again a political issue in areas where there has been acceptance and adjustment. Those school administrators and community leaders who have courageously and conscientiously lead their communities through the difficult period of compliance with constitutional requirements would find that Congress had pulled the rug out from under them. Children – white and black – who have been told that their school assignments were mandated by our Constitution would now be told that the Congress of the United States has said "no" to desegregation and "no" to the courts.
There is a special irony to section 406. Its final sentence actually directs the Attorney General, the Nation's chief law enforcement officer, to assist local school authorities in reopening desegregation plans so as to roll back or restrict the exercise of constitutional rights. Such a provision is an explicit invitation to local school boards to revive cases already closed and a promise that the leading law-enforcement agency in the Nation will be at their disposal.
The burden such a step would place on minority groups, civil rights organizations and their lawyers, would be intolerable. They would be forced back over old ground, required to defend scores, perhaps hundreds, of desegregation decisions already won. The bill would place them in a form of double jeopardy, and, worse, its section 306 provides that the loser in any cases instituted under the new law would have to pay "a reasonable attorney's fee as part of the costs."
Asking black parents to run the risk of paying for a school board's lawyer is on a moral level with the rest of this legislation. The proposition would be absurd, if it were not so nearly tragic.
This bill is a product of those who are unwilling to abide by the results of the traditional American processes of law, who would withdraw from the courts a part of their constitutional power so as to subvert judicial efforts to vindicate the constitutional rights of nonwhite American citizens. Consider the impact of this effort upon black people and others who have fought to secure their rights through the courts. On the threshold of vindication they will see white America slam the courthouse door shut in their faces. Surely our Nation will reap a harvest of bitterness.
There are some who say that black people themselves oppose busing. Indeed, some do.
Despairing of ever seeing desegregation accomplished, some blacks have sought to gain control of their schools and keep them black. Others understandably resent the implication that they see in school desegregation – that black children learn better when their classmates are white and that "white schools" are "better" than "black schools." But most black people are aware that schools in the white parts of town are generally newer, better maintained, and better equipped than those in their neighborhoods, and most do not expect this to change until white children are assigned to their neighborhood schools. And they want for their children what all parents want: the best possible education.
In any event, we should let black people speak for themselves. Roy Wilkins, director of the largest black organization in the land, the NAACP, has written:
Anti-busing is but another way of reinstating racial segregation ... Negro Americans ask access for black children to the best possible available education. If that requires a bus ride, then so be it. They believe that opponents of busing would bar children from good educations as surely as if they stood in the door of a school and physically turned away blacks.
Most significantly, let us listen to the Congressional Black Caucus, whose members, I presume, represent their black constituents as truly as the rest of us represent our white constituents. On March 15 of this year they issued a statement, part of which read:
As the Black elected representatives to the U.S. Congress, we strongly reaffirm our support of busing as one of the many ways to implement the Constitutional requirement of equal educational opportunities.... At the same time we strongly condemn those who would exploit this issue for personal, political, or monetary gain. Racists must not be allowed to formulate our policies in education, and especially to educationally brutalize Black children who are the chief victims of inferior schools and discriminatory practices.
Other black leaders and black organizations also have spoken forcefully on this issue.
Vernon Jordan, executive director of the National Urban League, said:
The fact is that most black people are solidly for busing to desegregate the schools. Most black elected officials support it, from the Congressional Black Caucus on down to lower elected offices. Concern over the proposed legislation has even been publicly voiced by black appointed officials within the Administration ...
The busing issue is the latest manifestation of that timid spirit of withdrawal and defeatism in the struggle for human rights and dignity. It marks a key test of whether we, as a nation, have the moral fortitude to persist in our efforts to become a truly open, democratic, multi-racial society ...
We stand, then, at one of those turning points in history when a nation decides whether it will press forward to fulfill its noblest ideals, or whether it will give in to the basest impulses of the dark, hidden underside of the national spirit. I am seriously concerned that we are witnessing the beginning of the end of the Second Reconstruction. I am moved to ask whether the moral fervor of the sixties will give way to moral cowardice in the seventies, and whether the faith and dreams of black people will be sabotaged once more.
Prof. Derrick A. Bell, Jr., a black professor at Harvard Law School and former HEW official, has written one of the best analyses of the educational alternatives facing Blacks. In "Integration: A No Win Policy for Blacks?" Professor Bell concludes:
The beginning of this article recalled that opposition to school desegregation is neither new nor novel. Because of its pathological components, it is likely to continue. Because white resistance to integrated schools is symbolic – and represents the core of the philosophy that America is a white man's country – it must be fought even by blacks who are convinced that the educational merits of integrated schools are overstated, misconceived, or simply nonexistent. The right of black children to attend integrated public schools – quite literally whether exercised or not – is a right that is crucial not only to black success, but to black survival in this country.
Anyone doubting this need only re-read the constitutional amendment supposedly designed to curb "forced busing." With so much at stake, we cannot afford to surrender, and dare not risk compromise. Our efforts may or may not be successful, but fighting for survival is never a "no-win" policy. It is much more a "for better or worse" situation in which, for all our weariness and frustration, we can only, as the current expression goes, "keep on-keeping on." But Langston Hughes said it better when he concluded his "Mother to Son" poem, capturing in his lines what is the apparent heritage and inheritance of black men in America:
So boy, don't you turn back,
Don't you set down on the steps
'Cause you finds it's kinder hard.
Don't you fall now
For I'se still goin’, honey,
I'se still climbin',
And life for me ain't been no crystal stair.
Black lawyers at the Department of Justice openly opposed the President's anti-busing legislation. On April 25, 1972, 10 black lawyers wrote this to the Washington Post:
First, and fundamentally, busing is not a real issue; it is instead a sham, a "last straw" embraced by those who have disappointedly watched busing and other tools of desegregation bring blacks to the better schools, wherever they are. Quite frankly, we as ardent students of the civil rights struggle, have concluded that this recent fervor in the area of busing is nothing more than a thinly veiled attempt to sacrifice the rights of minority children to racist pressure groups and political expedience.
Dr. Kenneth Clark, the noted black psychologist and executive director of the Metropolitan Applied Research Center – MARC – recently condemned the "political hypocrisy of the anti-busing-for-desegregation advocates." Dr. Clark contends that "all of the proposals for prohibiting the transportation of students for purposes of desegregation are racially restrictive proposals" and he outlines various reasons for rejecting the anti-busing legislation. He states:
In seeking to turn back the clock of racial progress in America, President Nixon and his advisors must be aware of the fact that he is threatening the constitutional protections of all Americans – and that in doing so he is eroding the foundations of a constitutional government, substituting a government by the tyranny of whim and passion rather than a government of law. This is the very high price of racial prejudice and political expediency which he seeks to extract from all the American people – white as well as black.
Dr. Clark also discusses the reasons that some blacks oppose busing and school desegregation. He stresses that–
It is important to understand that black separatists emerged as a consequence of the slow pace of public school desegregation in the South and as a reaction to the subtle and insidious forms of evasion of desegregation of the de facto segregated schools in northern cities.
Dr. Clark strongly rejects reliance on black separatists to support anti-busing legislation:
In this regard it might be significant to note that in seeking to justify his position, the President stated that some black separatists were in favor of anti-busing legislation. The fundamental constitutional questions, however, are not answered by this diversion. Constitutional rights can no more be abrogated by the alleged desires of the victims of oppression than by those who would seek to oppress. In seeking to obtain control over all black schools and insisting upon racially segregated schools through their support of anti-busing-for-desegregation legislation, black separatists are not only pursuing an impossible mirage but they are also, cynically or naively, giving aid and comfort to those who would use the laws of the Federal government to constrict the rights of Negroes – and to erode the democratic rights of all American citizens. In this regard they are indistinguishable from racial reactionaries – and they are accessories to the crime of destroying the democratic safeguards inherent in our constitutional government of checks and balances.
This bill is supported by those who say that the way to provide equal educational opportunities is not to desegregate through busing, but rather to improve the quality of schools attended by minority children. There are a number of defects in this line of argument.
In the first place, most of the scientific studies of the question have reached the conclusion that spending more money in ghetto schools does not improve the educational performance of children in those schools. The most massive study, the so-called Coleman report, financed by the Congress, clearly reached that conclusion. Evaluation of "compensatory education" programs since then has generally confirmed the results of the Coleman study.
In any event, to fund compensatory programs throughout the country will obviously cost a great deal more than the $500 million which this bill would devote to that purpose. Those who truly believe that compensatory education is the proper path to equal educational opportunities should be prepared to support appropriations commensurate with the need. They must also face the fact that the cost per child of compensatory education is many times greater than the cost per child of busing.
This bill would take $500 million away from programs authorized by the Emergency School Aid Act to assist in school desegregation and devote that sum instead to compensatory programs for children of low-income families. Of course, we already have ample authority to upgrade the education of poor children. Title I of the Elementary and Secondary Education Act authorizes appropriations of $6 billion annually for this purpose, This year, we appropriated only $1.8 billion and our effort to increase education appropriations was vetoed by the President – a President who supports the bill now before us. If we are serious about upgrading ghetto schools we would be supporting more adequate appropriations under title I of ESEA. $500 million taken from desegregation programs under the Emergency School Aid Act will not expand educational appropriations for minority children. On the contrary, it will reduce these opportunities still further.
Of course, even if compensatory education programs were successful in improving the test-scores of children – which is the usual measure of success in these matters – compensatory education cannot provide a key element in a child's learning and maturing process. We live in a diverse, heterogeneous society. There was a time when the "neighborhood school" reflected the entire community – the butcher, the baker, the candlestick maker, the lawyer, the doctor, and the banker all sent their children to the local public school. This was the meeting ground of children from all walks of life and social backgrounds. In the great metropolitan areas where most of our people now live, this is no longer true, and education has suffered as a result. Through desegregation, but not through compensatory programs, we can restore this traditional element, at least to a degree. If our children are to become good citizens of a multiracial society the place to start is in the public school.
I have spoken today to show up this bill for what it is: A dangerous violation of the constitutional separation of powers and an attempt to reverse the process of desegregation to which we have committed our Government and ourselves.
We have made progress since 1954. This bill would repeal it.
We have offered hope. This bill would strangle it.
We have moved toward an open and equal society. This bill would call us to retreat.
I say, instead, we must advance, advance in the hope that we can find better answers, advance in the field of housing, jobs, urban transportation, and all the other areas that can make our society whole and just. But if we refuse equal access to quality education for all children – as this legislation would ask us to do – then we assure the failure of all our efforts.
One hundred years after the Battle of Gettysburg, then Vice President Lyndon Johnson visited the battlefield and made a moving plea for justice that we need to hear again today:
The Negro says. "Now." Others say, "Never." The voice of responsible Americans – the voice of those who died here and the great man who spoke here – their voices say, "Together." There is no other way.
Until justice is blind to color, until education is unaware of race, until opportunity is unconcerned with the color of men's skins, emancipation will be a proclamation but not a fact. To the extent that the proclamation of emancipation is not fulfilled in fact, to that extent we shall have fallen short of assuring freedom to the free.
I ask the Senate today not to fall short of its principles. I ask for the defeat of this measure and for a renewal of the movement of responsible Americans going forward together. There is no other way.
Mr. HART. Mr. President, will the Senator yield very briefly?
Mr. MUSKIE. I yield.
Mr. HART. At the risk of embarrassing the Senator from Maine and acknowledging that we use the word "distinguished" so frequently that we demean the coin, I would suggest, having been present throughout the speech of the Senator from Maine, that, as he concluded by quoting a President, one with whom he and I served in this body, speaking at Gettysburg and describing another former President as a great man, that we in the Senate today heard a great speech by a great man. It was moving, it was eloquent, it was also factual; and I am sure that, as the country begins to develop an understanding of the concerns that have been voiced here, most particularly by the Senator from Maine this afternoon, a measure of restraint will attach. Buses will become less ominous, even in the city where they are manufactured.
Mr. MUSKIE. I am grateful to my friend from Michigan. With all respect to my other colleagues, there is no Senator whose approval means more to me, particularly in this field where his own efforts have been preeminent as a symbol of humanity, compassion, and dedication to freedom for all our people.