ANALYSIS OF CERTAIN PROVISIONS IN S. 1737

The Commission on Civil Rights wishes to express its general opposition to S. 179, S. 287, S. 619 and S. 1737.2 This Section of my testimony, however, will be specifically directed toward those provisions of S. 1737 with which the Commission is most concerned.

Sections 1202-1205 of S. 1737 if adopted, would, in essence repeal Title VI of the Civil Rights Act of 1964 (as amended)-as it applies to education. The Commission has long believed that Title VI, despite inadequate and ineffective enforcement, represents an essential part of this country's effort to eliminate the last vestiges of previously segregated, dual school systems. S. 1737 would seriously limit the Federal effort to desegregate public education by eliminating the instrument which has been the mainstay of the attack by the Executive branch on segregated education.

By eliminating the instrument, S. 1737 in essence repeals Title VI of the Civil Rights Act of 1964 as it applies to education and thus deprives this Nation of one of its most effective tools for ensuring equal educational opportunity. Utilizing its authority under Title VI, the Department of Health, Education, and Welfare (HEW) between 1966 and 1970 was able to take decisive steps to dismantle dual school systems in the South. During those years, two hundred and two (202) districts in the southern and border states faced Federal fund termination as a result of a determination of noncompliance with Title VI. All of them subsequently negotiated desegregation plans with HEW.

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According to the most recent DHEW figures administrative enforcement coupled with court action between 1968 and 1972 resulted in a decrease from 81.6 percent to 55.6 percent in the number of black students in the South attending 50-100 percent minority schools.

While these figures seem encouraging, the battle to end segregated education has not been won. In addition to the continuing isolation of more than 1,759,867 black students in southern States, severe racial isolation exists in the North and West-where in 1971 70.9 percent or 2,007,235 black students were attending 50-100 percent minority schools. It is apparent from Keyes v. School District No. 1, 413 U.S. 921 (1973) and other court cases that northern and western segregation is as deliberately imposed as segregation brought about in the South by State law. Federal officials are just beginning to identify the means by which such segregation occurs, including, for example, the gerrymandering of school district boundaries and the construction of schools to perpetuate patterns of segregation. S. 1737 would leave the Federal Government with fewer effective mechanisms for ending such discriminatory practices and would seriously cripple the effort to desegregate schools nationwide.

Despite the need for vigorous Federal action to end segregation once and for all, the Department of Health, Education, and Welfare has been unwilling to utilize the full force of Title VI for desegregation. Following "The President's Message to the Congress on Educational Opportunity and Busing" on March 17, 1972,4 HEW's program to eliminate discrimination in public education came to a virtual standstill. This development was manifested in two ways: (1) almost no reviews conducted after 1971 covered discrimination in student assignment, and (2) in some cases, where racially or ethnically isolated schools were identified in reviews, school districts were not required to desegregate such schools. Passage of Title VIII of the Education Amendments of 1972, expressly prohibiting use of Federal funds for transportation or "busing" of students or teachers for desegregation purposes, has contributed further to HEW's reluctance to require transfers of students for desegregation and to review a school district for problems of racial segregation.

Department of Health, Education, and Welfare's reluctance to utilize Title VI in rooting out discrimination resulted in Adams v. Richardson 480 F. 2d 1159

2 S. 179 (by Senator Griffin) will limit the jurisdiction of Federal courts to issue busing orders based on race. S. 287 (by Mr. Scott of Virginia) removes from the jurisdiction of all Article III courts (whether created by the Constitution or Act of Congress) any case or controversy involving the public schools. S. 619 (by Senator Allen) establishes uniform criteria for formulating judicial remedies for the elimination of dual school systems. 3 See the results of the third national survey on the extent of desegregation by DHEW. The survey was based on Fall 1972 data from about 85 percent of the survey districts. April 12, 1973 (HEW Press Release).

4 The President submitted to the 92nd Congress H.R. 13915, "The Equal Educational Opportunities Act of 1972," and H.R. 13916, "The Student Transportation Moratorium Act of 1972." The Commission voiced its opposition to both proposals in a statemen March 1972 and before the Congress on three separate occasions.

(D.C. Cir. 1973) No. 73-1273. Plaintiffs were able to argue successfully that the Department had failed to carry out its responsibility under Title VI of the Civil Rights Act of 1964 by allowing school districts found in noncompliance in 1971-many for maintaining racially disproportionate schools-to continue receiving Federal financial assistance, HEW is currently under court order to bring into compliance the 197 school districts affected by the Adams decision.

Although HEW has not vigorously enforced Title VI for desegregation purposes, the Department has creatively utilized its Title VI authority to investigate "in-school discrimination" or discrimination which occurs in purportedly desegregated schools. S. 1737 also would end these efforts, which have already resulted in improving the quality of educational opportunity for countless minority and white students. Rather than to have the investigation and remedial action of "in-school discrimination" stifled by passage of S. 1737, HEW should be required to marshal as much determination and thoroughness to end segregation of students as has been expended in connection with "in-school discrimination." Title VI must be fully utilized to eliminate both segregation of students and in-school discrimination if we are to end the discrepancies in educational opportunity which now exist.

The reliance in S. 1737 on desegregation by freedom of choice, can only be viewed as a deliberate effort to condemn minority children to segregated education and as a step backward toward a racially separate society. The failure of freedom of choice plans in bringing about desegregation is well established," and both the courts and HEW have abandoned, for the most part, such plans as a viable means for achieving desegregation.

In a 1969 report entitled "Federal Enforcement of School Desegregation," this Commission found that in a sampling of Louisiana school districts, freedom of choice plans had failed to bring about meaningful change in the racial composition of schools in the sample districts. In that report, the Commission concluded that freedom of choice plans removed from school boards the responsibility for desegregation, and placed an unfair burden on minority parents for the selection of schools for their children. Numerous instances were cited where the selection of white schools by black parents subjected the parents and their children to violence, intimidation, economic coercion, and harassment by white students, teachers, or school officials.

Because of the lack of success of freedom of choice plans, HEW and the courts have acted to limit the use of such plans. In 1966, HEW issued guidelines setting forth standards for determining if a freedom of choice plan was operating satisfactorily. Guidelines issued two years later refused to rely on freedom of choice and specifically delineated requirements for desegregating students and faculty. In 1968, the Supreme Court supported HEW's position in Green v. County School Board of New Kent County, 391 U.S. 430 (1968), by finding that a freedom of choice plan was not acceptable per se unless it resulted in the abolition of the dual school system.

S. 1737-An Unconstitutional Abridgment of Certain Rights Protected by the Fourteenth Amendment

S. 1737 raises serious constitutional questions by requiring that the Federal government adopt a hands off policy with respect to State violations of the Constitution. The Supreme Court has made it clear in Brown II and Green that dual school systems are violative of the Equal Protection Clause and that dual school systems must be disestablished-not with all deliberate speed but immediately. That was in 1967. Since freedom of choice plans have been held not to be an acceptable tool for achieving desegregation-unless use of such plans results in the abolition of dual school systems-the reliance of S. 1737 on such plans would overrule fundamental constitutional rights. As Mr. Justice Brennan said for the Court in Green:

"In determining whether respondent School Board met that command by adopting its 'freedom-of-choice' plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a 'prompt and reasonable start.' This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable, for 'the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.' Wat

Southern School Desegregation, 1966-67, A Report of the U.S. Commission on Civil Rights, July 1967, pp. 45-70.

son v. City of Memphis, supra, at 529; see Bradley v. School Board, supra; Rogers v. Paul, 382 U.S. 198. Moreover, a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable. "The time for mere "deliberate speed" has run out,' Griffin v. County School Board, 377 U.S. 218, 234.”

By limiting what may be done to remedy denials of equal protection of the laws in education, the proposed legislation would whittle away the scope of protection presently afforded under the Fourteenth Amendment.

S. 1737-An Unconstitutional Restriction on the Jurisdiction of Federal Courts Section 1207 of the Student Freedom of Choice Act removes from the jurisdiction of Federal courts the authority to fashion desegregation remedies and enter orders accordingly. Under this section Federal courts are stripped of the ability to order changes in the racial composition of schools, and the transfer and transportation of students and faculty. This attempt to restrict the jurisdiction of Federal courts raises serious constitutional questions. The first question, of course, is whether Congress has the Constitutional authority to deny Federal courts the power to decide desegregation cases and issue implementing orders. The Commission is of the opinion that Congress does not have such authority. The Constitution requires desegregation of public education; however, Section 1207's restriction of Federal jurisdiction would render inoperative the Constitutional mandate of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). For although the Constitutional right to desegregated education would remain, the enactment of S. 1737 would render it a right without a remedy.

As Representative Frank Thompson (D. N.J.) and Professor of Law Daniel Pollitt of the University of North Carolina School of Law have so graphically stated in their article Congressional Control of Judicial Remedies: President Nixon's Proposed Moratorium on "Busing" Orders:

"A right without a remedy is like a bell without a clapper: an empty promise demeaning to the judge, breeding cynicism and disrespect for the process of the law. This attempted dichotomy has no place in our Constitutional heritage * * * [T]he opposite has been the law since (and even before) the landmark decision by Chief Justice John Marshall in Marbury v. Madison, 50 North Carolina Law Rev. 809 (1972)"

American constitutional law has always recognized the power to issue remedial orders as an essential ingredient of the judicial power of the United States.

The principle that no branch of government may circumvent or violate the Constitution by doing indirectly what it is forbidden to do directly is firmly entrenched in our Constitutional law. In applying this maxim, Constitutional theory and practice require that substance rather than form be the guiding standard. Segregated education is a Constitutional outlaw; therefore, the Congress is constitutionally precluded from doing anything which would foster segregation. The adoption of S. 1737 would constitute a Congressional stamp of legitimacy for freedom of choice plans. It is logical and reasonable to conclude that the enactment of S. 1737 would result in fostering and perpetuating segregated educational institutions. Thus, Congress by enacting this bill would be aiding in the continuation of a Constitutional violation. Clearly, this is impermissible.

Congressional authority to affect the jurisdiction of inferior Federal courts is a settled principle. That principle, however, is not without its caveats. A most important exception is that Congress may not restrict the jurisdiction of the Courts if by so doing constitutionally protected rights will be abridged or rendered unenforceable. As Judge Chase of the Second Circuit wrote in the Battaglia

case:

“*** While Congress has the undoubted power to give, withhold, and restrict the jurisdiction of the Courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property *** (Battaglia v. General Motors Corp., 169 F. 2d 254 (2d Cir. 1948)"

Again, I would like to quote from the article by Rep. Thompson and Prof. Pollitt:

"The *** cases strongly indicate that Congress has no power to withhold or restrict the jurisdiction of the 'inferior' courts when the withholding or restriction of that jurisdiction would deny or deprive persons of property rights guaranteed by the Fifth Amendment. It follows that Congress has no power to withhold or restrict the jurisdiction of the 'inferior' courts when the withholding or restriction would deny school children of the rights already declared to be theirs under the Equal Protection Clause of the Fourteenth Amendment."

By limiting what may be done to remedy denials of equal protection of the laws in education, the proposed legislation would whittle away the scope of protection presently afforded under the Fourteenth Amendment.

Separating Fact From Fiction-A Look at How Desegregation Is Working

The legislation now being considered by this Committee would reverse the Nation's commitment to desegregate our schools. It seems clear that a major reason for the continuing efforts to withdraw that commitment stems from the feeling of many that school desegregation is not really working to benefit anyone, and that it only serves to antagonize and upset communities to the point where more harm than good results for all concerned.

Twenty years after the Brown decision, we find ourselves in the midst of sharpened debate over the worth of school desegregation, given the changes and adjustments it often entails. Some who previously considered the melting pot function of the public schools a relatively easy solution to all the problems of race and class have been displaced by a new set of sociologists who insist, with equal ideological extravagance, that the melting pot was a myth and a failure. Much of the public confusion and misunderstanding about school desegregation results from the fact that its effects are not easily measured, and we Americans, as pragmatic people, demand hard evidence that such an unprecedented effort in indeed justified. But public uncertainty and misapprehension have also been fostered by the manner in which the school desegregation issue has been treated by many public officials-in Washington and in various individual school districts throughout the Nation. The Commission is concerned that the effect of handling the matter of busing as a political hot potato has been to legitimize an emotional rather than legal position, and to create an atmosphere in which reason is doomed.

The Commission believes that the public interest with respect to this issue is best served by an empirical approach, as opposed to political expediency. When testifying before the Judiciary Committee on May 10, 1972, I cited numerous studies which clearly revealed that, far from damaging or "impinging" on the educational process, busing has clearly permitted many school districts to offer all their children demonstrable, positive gains, both academic and attitudinal. There is every reason today-18 months later-to reaffirm that statement. Additional studies by the Commission and other organizations in the past year and a half suggest that school desegregation is working and that most of the fears and anxieties about busing have been proven groundless.

In a study of school desegregation in ten communities throughout the Nation, released in June 1973, the Commission found that desegregation had proceeded more smoothly than expected in nearly every district visited. In the one district where disturbances had been severe, a community-wide committee of local citizens appointed by the mayor and the chairman of the local board of commissioners, in an official report, blamed the lack of support and leadership by the school board and community leaders for the continuing tension. Moreover, contrary to the assumptions of many, the Commission found that: (1) The technical problems of desegregation are less formidable than was previously believed; (2) There is a sharp contrast between the reaction of communities to their own experience in desegregation and their expressed feelings concerning desegregation as a general proposition, particularly when the issue of busing intrudes; (3) Far from lowering the quality of education as some had predicted, desegregation had actually contributed to its improvement.

The last point is particularly significant in view of the questioning of many parents today about the quality of education their children receive in our public schools. In community after community, contrary to the widely held belief that integration would be achieved at the expense of the white majority, the Commission found that the shock of desegregation had actually forced administrators to take a look at the entire education program. Integration may well have sparked the kind of reappraisal of established practices that is essential to institutional self-renewal.

Additional evidence that school desegregation has had positive effects on students, both academically and attitudinally, was reported in a recent major study of the Emergency School Assistance Program (ESAP), which provides

6 "School Desegregation in Ten Communities," U.S. Commission on Civil Rights, Government Printing Office, June 1973.

Report of Charlotte-Mecklenburg Community Relations Committee, March 14, 1972. Report on Charlotte-Mecklenburg, N.C. in "School Desegregation in Ten Communities."

grants to school districts in the process of desegregating their schools. That study revealed that:

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(1) ESAP caused gains in academic achievement for black male high school graduates; (2) This achievement gain was attributable to the use of ESAP funds in ways that created effective changes in the way high schools handled racial issues; (3) Human relations programs seem to have been effective in improving the attitudes toward integration of urban white students; (4) Desegregation places considerable strain on students of both races, but schools can ease this strain by having staffs that support desegregation operating in a nondiscriminatory way and helping desegregation to proceed smoothly.

In addition to the ten district analysis and the ESAP evaluation, another report challenges numerous major erroneous assumptions about busing and school desegregation. One of the most intensive studies of school desegregation undertaken by the Commission involves Prince George's County, Maryland, one of the largest districts in the Nation and defendant in a case which attracted national attention.

Some preliminary findings in that report, now being concluded, are as follows: (1) Federal, State, and County action, not simply population shifts, perpetuated school segregation long after the Brown decision in 1954; (2) The district court demonstrated enormous patience with the school board, despite the obstructive tactics of the latter, in not only permitting but encouraging the board to design its own desegregation plan. Despite a formal request by plaintiffs, the court refused to impose a plan on the board; (3) A desegregation plan involving transfer of 33,000 students was implemented successfully at mid-year despite strong community opposition and predictions that chaos and confusion would result; (4) The black community in Prince George's County supported busing for desegregation as long as whites were also involved in a desegregation plan; (5) Achievement gains in reading, mathematics and language usage were reported in standardized tests given during the first semester of desegregation, reversing a previous trend; (6) Both black and white students indicated improvement in interracial understanding within months of implementation of the plan.

Finally, another study of desegregation in various districts noted that in Pontiac, Michigan, where violence had occurred at the start of its desegregation program, busing was reported "moving smoothly" and there was an absence of violence. In San Francisco, many parents reported that the desegregation program was running smoothly and that their children have been enriched by contact with youngsters of different races and backgrounds.9

These studies indicate that school desegregation is indeed worth the effort. The fact that the Fall 1973 school session was generally the quietest and most peaceful in the South in years indicated that it is.

The United States Commission on Civil Rights is interested in getting the facts as to the degree of progress-both cognitive and noncognitive-which has been made in the schools under desegregation, and how a community and its schools might become better prepared to carry out the Constitutional mandate. For that reason the Commission on Civil Rights has contracted with the Rand Corporation to design a longitudinal study which can be implemented over the next decade so that the Nation might know where it stands in this emotion heightened-ladened area. Hopefully, the result of this study will not only improve the transition period between segregated and desegregated schools, but will also aid in providing the keys to assuring successfully desegregated schools-where learning, individual growth and understanding does occur. To those who contend that the Nation's educational problems are continually inflamed by court-ordered busing, the reply must be that the pyrotechnics in an "unsettled" system are much more likely to come from the community's attitude than from busing itself. As the citizens' committee in Charlotte stated:

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"Thus, our first and firmest attention should be turned from discontent with the courts and hope of reversals of orders to our schools and the way in which they educate our children. The Committee believes that leadership from the Board of Education and from others-elected and private civic leaders alike will cause this community's parents to reaffirm their belief in good education."

8 "Southern Schools: An Evaluation of the Effects of the Emergency School Assistance Program and of School Desegregation," Office of Education, Department of Health, Education, and Welfare, December 1973.

"Busing' Success or Failure?" U.S. News and World Report, March 26, 1973.

10 Report of Charlotte-Mecklenburg Community Relations Committee. March 14, 1972. Report on Charlotte-Mecklenburg, N.C. in "School Desegregation in Ten Communities."