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North Carolina Law Review7

CONGRESSIONAL CONTROL OF JUDICIAL
REMEDIES: PRESIDENT NIXON'S PROPOSED
MORATORIUM ON “BUSING" ORDERS

FRANK THOMPSON, JR.,* AND DANIEL H. POLLitt

The school bus is a familiar sight on the American education scene. The big yellow bus criss-crosses the rural byways, or speeds along modern highways to the "consolidated" school, and picks up approximately forty percent of the children who go to school each day. For years, no one seemed to mind-except those who attended private parochial schools and therefore were denied this free transportation.

In the South, there were two buses: one carrying black children to black schools, and one carrying white children to white schools. No one seemed to mind-except the blacks who were denied an equal education.

Then, as the dual educational systems began to end, the black children rode the same bus with white children to the formerly “white” school, and "busing" became an issue. When it appeared that white children would be transported from the white suburbs to the formerly "black" inner-city schools, "busing" became a dirty word.

But not everywhere, and not for long. Consider, for example, the case of Hoke County, North Carolina. Hoke County is a small rural community of 18,000, with 4,850 children of school age: 50 percent black, 35 percent white, and 15 percent Lumbee Indian. For years, the county operated three different school and transportation systems. The white children were a year ahead of their black and Indian counterparts at the midway mark and two full years ahead by time of high school graduation. Then came integration, a unitary system under which each school, and each class, now reflects the county-wide population. But with integration came advance planning. Attention was focused on what happens at the end of the bus ride. There were conferences with fearful parents and apprehensive students. The capacities and achievements of each child were measured, and special needs and problems were identified and anticipated. The result was a marked success. White students continued to progress as before, and black and Indian students began to catch up. And the daily bus ride was cut down by an average of fifteen minutes.'

*Member of the United States House of Representatives.

+ Professor of Law, University of North Carolina School of Law.

'Mondale, Busing in Perspective, THE NEW REPUBLIC, March 4, 1972, at 18.

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Senator Mondale, after two years as Chairman of a Senate Select Committee on Equal Educational Opportunity, reports that Hoke County is not an isolated or unique phenomenon. His conclusion, after two years of study of the problems nationwide, is that “integrated education-sensitively conducted and with community support—can be better education for all children, white as well as black, rich as well as poor. It has been tried and is working."

But the facts are either not known or not accepted. Many parents fear that their children will be "bused" into alien neighborhoods, and they are eager for any relief. And some political candidates were eager to promise relief. “Busing" became the big issue in the Florida "Presidential primary," in which there was a separate “busing" referendum item on the ballot. On March 14, 1972, the people of Florida went to the polls, selected Alabama's Governor Wallace as their preference for the Presidency, and voted almost three-to-one against "compulsory busing."

It was almost inevitable that the "busing" issue would reach national dimensions, and it did within a few days.

THE NIXON MORATORIUM PROPOSALS

On March 16, 1972, President Nixon announced on nation-wide television that he was sending to Congress two bills on "busing." One was a bill "[t]o impose a moratorium on new and additional student transportation" and provides in essence that all existing court decrees "shall be stayed" to the extent that they require any school board to

'Id. at 17.

'The actual count was 78% against busing. There Goes the Bus, THE NEW REPUBLIC, April 1, 1972, at 13. Also, 79% of the Floridians voted for desegregated, "equal opportunity" public education. Id.

'The bills were introduced on March 20 by William M. McCulloch, the senior Republican member of the House Judiciary Committee. Mr. McCulloch subsequently repudiated them both when a thorough study convinced him that they were unconstitutional and unjust. When (then Acting) Attorney General Richard Kleindienst came to testify before the House Judiciary Committee in favor of the bills, McCulloch declared:

It is with the deepest regret that I sit here today to listen to a spokesman for a Republican Administration asking the Congress to prostitute the courts by obligating them to suspend the equal protection clause (of the Constitution) so that Congress may debate the merits of further slowing down and perhaps even rolling back desegregation in public schools.

He asked the witness: "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?" AFL-CIO News, April 15, 1972, at 6. col. 4.

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transport a student who was not being transported immediately prior to the entry of the court order.'

The other Nixon bill was styled as one "[t]o further the achievement of equal educational opportunities." On the positive side, it declares that all children enrolled in public schools "are entitled to equal educational opportunity without regard to race, color, or national origin," and then it authorizes the Secretary of Health, Education, and Welfare (HEW) and the Commissioner of Education to concentrate federal funds on "basic instructional services and basic supportive services for educationally deprived students." It declares that "the neighborhood is an appropriate basis for determining public school assignments," and then it imposes certain limitations on the powers of the federal courts to remedy racially discriminatory school assignments and plans that are in violation of the equal protection clause of the fourteenth amendment. For those in the sixth grade and below, the proposed bill provides that "no court" shall implement a plan to end segregation that will increase "the average daily number of students" transported, the "average daily distance to be traveled," or the "average daily time of travel" over the comparable average for the preceding school year."

Concerning those in the seventh grade and above, the proposed law provides that "no court" shall remedy a segregated plan of education with busing provisions that increase the average number of students transported, the average daily distance traveled, or the average daily time of travel, unless other techniques have been tried and found wanting." These other techniques include free transfer of students from a school in which students of their race comprise a majority to a school in which their race is a minority; the revision of attendance zones or grade structures, if this can be done without increasing the transportation of students; the construction of new schools and the closing of inferior schools; and the establishment of magnet schools or educational parks.12

'H.R. 13916, 92d Cong., 2d Sess. § 3(a) (1972). The moratorium was to begin the day after the enactment of the bill and was to terminate either on July 1, 1972, or on the date of enactment of the companion bill, whichever was earlier.

'H.R. 13915, 92d Cong., 2d Sess. (1972).

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'Id. § 2(a)(1).

"Id. § 101(a)(2).

'Id. § 2(a)(2).

"Id. § 403(a). (It has been the personal experience of one of the authors, who is the father of three children, that integration is easier and more effective at the first grade level than when it occurs at either the junior or senior high-school level.)

"Id. § 403(b).

"Id. § 402.

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There is one other notable limitation on the courts: they are not to ignore or alter a school district line "except where it is established that the lines were drawn for the purpose, and had the effect, of segregating children among public schools on the basis of race, color, or national origin."

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So much for the "bare bones" of the proposed laws. Flesh was added at a White House Conference on March 17 when the highest administration officials "briefed" the press on the President's proposed laws." Several items are of interest. The first is that the Administration sent the bills to Congress for enactment without studying the legal implications. The proposal law would curtail the power of the federal courts to implement their judgments, and a reporter asked, “Is there a precedent in case law for this kind of action?"" Attorney General (then Acting Attorney General) Richard G. Kleindienst replied in the negative. He said, "There is no precedent in exactly this kind of situation The only analogy he could offer was that of the National Labor Relations Act, by which Congress had limited the remedies available to the National Labor Relations Board "to apply between employees and employers in representation [sic]."'"

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The second item of interest is that the Administration sent the bills to Congress without any study of the factual need for the proposed laws. Administrative officials were asked, "How much busing is going on now for the purpose of desegregation . . .?"" Wilmot Hastings, General Counsel of HEW, replied: “[W]e don't have any breakdown. . . . We have no data on miles, distance, or times, the breakdown, or what the relative amount of desegregation busing and nondesegregation busing amounts to."'18

"Id. § 404.

"Representing the Administration were John D. Ehrlichman, Assistant to the President for Domestic Affairs; George P. Schultz, Director of the Office of Management and Budget: Elliot L. Richardson, Secretary of the Department of Health, Education, and Welfare; and Richard G. Kleindienst, (then Acting) Attorney General; and several members of their respective staffs. White House Press Release, March 17, 1972, at 1 [hereinafter cited as Press Release].

15 Id. at 9.

"Id.

"Id.

Id. One can then only question the "findings" in § 2(a) of the proposed Moratorium bill: "For the purpose of desegregation, many local educational agencies have been required to reorganize their school systems, to reassign students, and to engage in the extensive transportation of students. [T]hese reorganizations, with attendant increases in student transportation, have caused substantial hardship to the children thereby affected... H.R. 13916, 92d Cong., 2d Sess. 2(a)(1)-(2) (1972).

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The third item of interest is the political nature of the proposal. A reporter asked: "If, as the experts have testified here, we do not even know the extent of busing involved in the desegregation process, then what is the hard evidence that supports a Presidential call for a moratorium on busing." ."'" John D. Ehrlichman, Assistant to the President for Domestic Affairs, answered this one:

"I think you have come from some other planet not to be able to answer that question. Every place that you go around this country. this is the front burner issue in most local communities. . . .

Now, that is the evidence. It carries by such a preponderance that it cannot just be swept under the rug by some sort of statistical evasion."20

The fourth item is that the President's proposals turn the clock back to 1896, the year in which the Supreme Court announced the "separate but equal" doctrine in Plessy v. Ferguson." A reporter asked: "Why is this not a return to separate but equal; if the moratorium on busing stops future busing plans and the financing of inner city schools encourages and develops those schools."" Another reporter asked how the courts could end segregated education "without some form of transportation, since the facts of life are that blacks and whites don't live together." The reply of Dr. Schultz, then Director of the Office of Management and Budget, can be reduced to this one sentence: "There is no necessary reason why one must desegregate everything."" But the equal education under the proposed laws will be not only separate but also unequal. Secretary Elliot Richardson of HEW told the reporters that the Administration was not asking for any funds for schools other than the amounts theretofore sought under earlier laws; Dr. Shultz implied that there is no new money involved" and added that there were no present plans to ask for future additional funds with which to upgrade the quality of the inner-city schools."

The purpose of this article is not to comment further on any aspects

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