system, if you reopened what had been decided cases without any real reason. By holding out a false hope of upsetting such desegregation as has been accomplished, this provision would create legal and community chaos and revive all the controversies, many of them bitter, that we had hoped were behind us. We do not think that in legal results it would accomplish anything except a mass of pointless litigation. In community terms it would only encourage a revival of activities by segregationist diehards. Without going into all the details of the bill, we find many other provisions objectionable to those who believe in equality of opportunity. Among the proposed legislative findings, we would point out three that are particularly disturbing. The first of these is that the dual school system has been effectively dismantled. This flies in the face of reality. In that connection, Mr. Chairman, I would like to offer for the record appendix B of the decision, an order by the court in Adams v. Richardson because there is set forth a whole list of areas which have not complied with the requirement to desegregate the schools. If we took those alone we would have a situation which would clearly refute the statement that the dual school system has been effectively dismantled. May I offer that? Senator ERVIN. That portion of the opinion will be received in evidence and printed in the record as such. [The information referred to follows:] APPENDIX B-SCHOOL DISTRICTS WITH SUBSTANTIAL RACIAL DISPROPORTION WHERE NO HEW "SWANN" LETTER SENT APPENDIX B-SCHOOL DISTRICTS WITH SUBSTANTIAL RACIAL DISPROPORTION WHERE NO HEW "SWANN LETTER SENT-Continued Mr. MITCHELL. Not only is it necessary to monitor many school districts under court or agency order to determine whether they are fulfilling their obligations under the orders, but discovery of segregation in previously undetected areas frequently occurs. A good example of that is the neighboring city of Baltimore which has a black school superintendent. I think they believed maybe they were trying to obey the requirements of the court, but it has been discovered that there, too, is a continuing system of racial segregation in public schools. This is especially so in the North, where many of the subtle practices in race relations made, what in fact is de jure segregation, appear de facto. Another of the findings we feel is erroneous is that declaring it against public policy to require racial balance. Although the Supreme Court in the Swann case found this not to be constitutionally required, it held that there was discretion in local school boards to establish a racial balance. We believe that discretion should be protected. I might say that I think that was the intention of Congress because at the time when Congress was considering the question of racial balance in 1964, the question arose as to whether the Congress was trying to say to people that you could not seek racial balance if you wanted to try to undertake it. Senator Saltonstall, backed up by Senator Humphrey, made it very clear that it was their intention merely not to expand the powers of the court in this field, but simply to say that in the de facto situations the court should feel free to seek what would be equitable remedies. I have a brief discussion of the legislative history containing the citations from the Congressional Record on that, which I would appreciate an opportunity to offer for the record also, Mr. Chairman. Senator ERVIN. That will be received as evidence and made a part of the record. [The information referred to follows:] [Excerpt from "The Civil Rights Record of the Nixon Administration," 49 Notre Dame Lawyer 63 at 68-69 (October 1973)] In addition to its early attempts to delay school desegregation in Mississippi, the Nixon Administration must bear the major responsibiliy for creating a national issue on the subject of transportation. However, Congress must also share the blame. After giving a nationwide telecast address on largely fictional descriptions of school busing problems, President Nixon sent a message to Congress on March 17, 1972, charging that transportation programs to accomplish compliance with court decisions on desegregation were widespread, costly, harmful to the educational process and created unnecessary administrative burdens. In contrast, Stephen Horn, then Vice Chairman of the Civil Rights Commission, testifying before the House Judiciary Committee on May 10, 1972, said that population growth accounted for almost all busing and that cost of busing had held steady at between 3 and 4 per cent of total educational expenditures for forty years. He also said that the Department of Health, Education and Welfare had advised Congress in 1970 that there had been more busing in past years to preserve segregated schools than in 1970 to desegregate schools." Although the present controversy over busing may seem to be a new development, it is really a continuation of a dispute that surfaced when Congress debated and passed the 1964 Civil Rights law. At that time, the southern opponents of school desegregation were fighting a rearguard action against implementation of the 1954 school desegregation decision. President Lyndon B. Johnson, who was then in the White House, the Department of Justice, and the majority of the members of both houses in Congress were united in their determination to implement Supreme Court decisions in school cases. Debate centered around Title IV of the then pending bill, H.R. 7152, which authorized the Attorney General to make the United States a party to civil actions seeking desegregation of public schools. In an effort to distinguish between what was then thought to be de facto segregation and de jure segregation in public schools, members of the Senate held a series of meetings to draw up language that would deal with this problem and also deal with the subject of student transportation. The result of their efforts is now 42 U.S.C. 2000 c 6(a) (2) which reads: "Nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards." The amendment was promptly attacked by Senators Sam Ervin (D-N.C.) and Senator Richard Russell (D-Ga.) as a provision "to remove jurisdiction of the federal courts from any action looking to the correction of de facto segregation.” 12 Speaking in defense of the amendment, Senator Leverett Saltonstall (R-Mass.) said: "I was present at the meetings when the bill was revised. . . . We tried to provide that the court would not be given any more power than it now has with respect to achieving racial balance in schools by busing of children or in correcting racial imbalance.”13 Senator Hubert Humphrey (D-Minn.) who was floor manager of H.R. 7152, said: "Some communities are attempting to correct racial imbalances by transportation of children; others refuse to do so. The purpose of the pending DirksenMansfield-Humphrey-Kuchel substitute is to make clear that the resolution of 11 Hearing before the House Judiciary Committee, May 10, 1972. 12 110 Cong. Rec. 13820 (1964). 13 Id. these problems is to be left where it is now, namely in the hands of the local school officials and the courts. . . . Obviously, this provision could not affect a court's determination concerning racial imbalance and possible corrective measures; this is dependent upon the Court's interpretation of the fourteenth amendment." 14 Senator Russell offered an amendment to strike this language from the bill. His amendment was defeated by a vote of 71 to 18 which appears to be a substantial indication that the Senate felt the courtroom was a suitable forum for airing and settling busing questions without additional legislation. From 1964 to 1970, opponents of school desegregation attempted to use this language as a limitation on the powers of the Executive branch and the courts to approve plans that require transportation of children to accomplish desegregation of public schools. Most of those who take this position ignore the clear intent of Congress as stated by Senator Humphrey and Senator Saltonstall that the amendment was not designed to restrict or expand the power of the courts to interpret the requirements of the fourteenth amendment. Because until 1970 the transportation controversy was centered mainly in the South, most northern members of Congress became involved in one of two ways. They opposed antibusing amendments as invasions of the powers of the federal courts or they joined with southern members for logrolling purposes-to reassert conservative legal philosophy or to provide political assistance to friends who could use it in their states or districts. The last category of political assistance provided the real clout for antibusing amendments. Most of what was given sounded deadly, but as a practical matter it had little effect on the courts. The main harm was that such amendments frustrated able and effective persons in the Department of Health, Education, and Welfare who were trying to implement school desegregation decisions. In addition, of course, gullible and/or obstructive state and local officials used such language to justify delay in setting up truly unitary school systems. Mr. MITCHELL. The last of these findings is that which would make it against public policy to require racial adjustments once desegregation has been accomplished, despite later population changes. This finding is also implemented later in the proposed act by the provision, section 207, on termination of orders. This fails to take into consideration the role that government plays in the racial composition of school districts through housing, education, transportation, community services and other governmental policies and practices and how these policies result in population changes. S. 179 represents a frontal attack on the judiciary. It seeks to take from courts jurisdiction to make any decision, enter any judgment, or issue any order requiring transportation to effect school desegregation. While using jurisdictional language, this bill does not, in fact, prevent courts from hearing school desegregation cases. It prevents them from granting successful litigants a full remedy. Under it a court could find that the 14th amendment requires pupil transportation, but could not order public officials to provide that transportation. We feel that this is a statutory attempt to amend the Constitution and that it is constitutionally defective because Congress lacks the power to so amend the Constitution. On the practical level, if permitted, it would set up Congress as a super court, with authority to overrule any decision of a court by revoking the court's jurisdiction to render the objectionable decision. Apparently in anticipation that the courts will not accept the legal principle the bill's author espouses, the bill further provides that when courts do order pupil transportation, the orders may not become effective until all appeals are exhausted or the time for appeals has expired. 14 Id. (emphasis added). Thus, after 20 years of delay in the implementation of the Brown decision, we have a proposal to continue indefinitely the time in which that decision may become fully effective. Anyone familiar with our legal system knows that delay can become a way of life for those bent on delay, notwithstanding the expedited judicial determination provisions of the bill. S. 287 goes much beyond S. 179. It would deny jurisdiction to Federal courts in any case involving a public school, except for appeal or petition for writ of certiorari to the Supreme Court. While this would apply to school desegregation cases, it would also bar access to Federal courts in many other areas of constitutional law. For example, somebody mentioned this morning that they favored letting students wear their hair long if they wanted to; under this provision, that case could not get into Federal court for determination of the constitutional issues involved. Some other things that come to mind are first amendment rights relating to prayer in public schools, academic freedom, student protest; constitutionally protected property rights such as teacher tenure and pension rights; due process in teacher discharge cases, and so forth. It would lower the public school to the position of the only public institution whose activities are beyond constitutional review by the Federal courts. We see nothing in law or reason that would justify such a sweeping exemption and cannot believe that Congress will take this proposal seriously. At a time when our country is torn by strife about whether Government officials have engaged in unlawful acts, it is tragic to see that an effort is being made to give statutory protection to acts and practices that have unlawfully delayed desegregation in the public schools. We urge that S. 179, S. 287, S. 619, S. 1737, and S. 2336 be rejected. Senator ERVIN. Thank you very much. The Committee will stand in recess until 3 o'clock this afternoon. [Whereupon, at 1:15 o'clock p.m., the subcommittee was recessed, to reconvene at 3 p.m., the same day.] AFTERNOON SESSION Senator ERVIN. The committee will come to order. TESTIMONY OF JAMES WELLS, LIBERTY LOBBY Mr. WELLS. Mr. Chairman, I am James Wells, an attorney from Detroit, Mich. I have represented Neighborhood Academies, Pontiac, Mich., the so-called freedom-of-choice schools during the busing problems of 1971. I am also a special consultant for Liberty Lobby, and appreciate this opportunity to present the views of Liberty Lobby's 20,000-member board of policy, and also to appear on behalf of the approximately 250,000 readers of its monthly legislative report, Liberty Letter. The Pontiac school district was vitally affected by a school busing decision in 1971. Enrollment in the public school district dropped dramatically that year, while private school enrollment increased substantially. The white population began to move from within the school boundaries to other districts. NAACP predicted that within 5 |