necessary two-thirds vote in each body of the Congress and I am glad the committee is considering alternate proposals.

As you know, Mr. Chairman, the Constitution provides that in addition to the Supreme Court, judicial power "shall be vested * * * in such inferior courts as the Congress may from time to time ordain and establish." This is the concept in my own bill S. 287 introduced on January 11, 1973, and referred to your committee. Its intention is to clarify the jurisdiction of Federal courts with regard to cases and controversies involving the public schools. It provides neither the Federal district courts nor the circuit courts of appeal shall have any jurisdiction to hear or decide cases and controversies involving the public schools, but that jurisdiction with respect to such cases and controversies shall be vested in the courts of general jurisdiction of the respective States with the right of appeal to the highest State courts and by certiorari to the Supreme Court of the United States; thereby retaining Federal supremacy.

Mr. Chairman, you referred to the Charlotte-Mecklenburg case. I have read this case and it is somewhat vague, but it is my understanding from a reading of the case, and you are much more familiar with it, of course, rising from your own State, but it gives great discretion to the trial judge, to the district court judge, and I think that even though under my bill there would be Federal supremacy retained by writ of certiorari to the Supreme Court, the major decisions would be made in the State courts, the trial courts within that State.

Mr. Chairman, the purpose of this bill is to insure that cases dealing with such a vital local issue as neighborhood schools be heard by judges attuned to the problems and the needs of our communities.

There is no doubt of the power of the Congress to enact such legislation, and not only to set up a Federal judicial system below the Supreme Court, but also to fix the jurisdiction of such courts.

The first Congress exercised the power granted by the Constitution when it enacted the Judiciary Act of 1789 (1 Stat. 73). However, it did not grant to the Federal courts the full judicial power of the United States. Jurisdictional amount requirements kept many liti gants from Federal courts and sent them instead to State courts to adjudicate Federal claims. The 1789 act contained no grant of "Federal question" jurisdiction, so that suits arising, in the words of article III, section 2, "under this Constitution, the laws of the United

States, and treaties * * *" except where otherwise specifically and narrowly provided for, were required to be brought in the State courts until 1876 (18 Stat. 479). A clause barring diversity jurisdiction, where diversity had been created by the assignment of choices in action, kept in State courts cases which the Constitution would have permitted Congress to assign to Federal courts.

In a case involving the "Assignee Clause," the Supreme Court first announced the doctrine that Congress controlled much of its jurisdiction and all of that of the lower Federal courts. In the words of Justice Chase:

The notion has frequently been entertained, that the Federal courts derive their judicial power immediately from the Constitution, but the political truth is, that the disposal of the judicial power, except in a few specified instances, belongs to Congress. If Congress has given the power to this court, we possess it, not otherwise; and if Congress has not given the power to us, or to any other court, it still remains at the legislative disposal. Besides, Congress is not bound,

and it would, perhaps, be inexpedient to enlarge the jurisdiction of the Federal courts to every subject, in every form, which the Constitution might warrant.

I cite cases from time to time in my prepared remarks, and I would ask they be included without reading the citations of authority. (Turner v. Bank of North America, 4 Dall. (4 U.S.) 8, 10 (1799), Cary v. Curtis, 3 How. (44 U.S.) 236, 245 (1845).) And in the Cary v. Curtis, 3 How. 44 (U.S.) 236, 245 (1845) it was said that:

The judicial power of the United States, although it has its origins in the Constitution is (except in enumerated stances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.

For similar expressions, Mr. Chairman, I cite a number of other cases. Sheldon v. Sill, 3 How. (49 U.S.) 441 (1850); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511 (1898); Kline v. Burke Construction Co., 260 U.S. 226 (1922); Lockerty v. Phillips, 319 U.S. 182 (1943); South Carolina v. Katzenback, 383 U.S. 301, 331–332 (1966).

State judges under the supremacy clause, article VI, clause 2, are bound by oath to uphold the supremacy of the Constitution, as well as constitutional Federal laws and treaties. Today, all cases which might be brought under "Federal question" and "diversity" jurisdiction in Federal courts which do not involve the requisite jurisdictional amount, must be brought in State courts. Litigants may on their own bring most cases in State courts which could be brought in Federal courts, excepting only a few classes of cases in which Congress has made Federal jurisdiction exclusive.

Mr. Chairman, my bill does not go to the question of the restriction of the appellate jurisdiction of the Supreme Court, which may be the subject of a difference of opinion because the U.S. Supreme Court would still be the court of last resort, even though cases and controversies involving the public schools would be decided initially in State

courts.

The reason for emphasizing this bill, S. 287, Mr. Chairman, is because other witnesses undoubtedly will testify with regard to other bills such as your own, S. 1737, to prohibit busing of schoolchildren. I am in agreement with this bill but am in doubt as to its fate in Federal courts. It will not solve the problem of Federal judges ruling in cases that are more properly matters for State judicial action. Transferring jurisdiction over issues and controversies involving the public schools from the Federal to the State courts can be accomplished by a simple majority of the Congress. There is no doubt that the people of the country want the neighborhood schools preserved, and in my opinion, they want Federal authorities prevented from issuing edicts which affect the education of their children.

If we are interested in the welfare of children, and I am sure this is true of each member of the committee; if we want them to receive the highest quality education, and again, I know this is the desire of all of us; then we must find a solution to this problem. Therefore, I urge that the committee bring a proposal to the floor for consideration

while we have sufficient time for Congress to work its will and enact the necessary legislation during this Congress to resolve this most important domestic problem.

Again, Mr. Chairman and members of the subcommittee, I appreciate your holding these hearings and the opportunity to present my views.

Senator ERVIN. I wish to commend the clearness and thoroughness of your statement. Your bill is certainly constitutional, and it ought not to arouse the opposition of those who are reluctant to curtail the ultimate jurisdiction of the courts.

As a matter of fact, as you point out, the Federal courts are denied jurisdiction in respect to the overwhelming majority of all the cases and controversies arising under the Constitution, the laws and treaties of the United States. This is done by the simple statutory provision that no matter arising under the Constitution or a right created by the Congress shall be adjudicated in the Federal courts unless the sum or value exceeds $10,000. Therefore, the overwhelming majority of cases now arising under the Constitution and laws and treaties of the United States are limited by an act of Congress to adjudication solely to State courts with the right of appeal ultimately to the Supreme Court, as your bill provides.

Senator SCOTT. Well, Mr. Chairman, before even preparing this bill, and I introduced a similar measure in the House when I was a Member of that body, I did have the Library of Congress research the matter for me to determine just whether we could act in this case, and of course, they came up with an affirmative answer. It was interesting last night while I was at home; I reviewed the Constitution annotated and reviewed the cases that are cited, and there is no question in my mind as to the power of the Congress by just a majority of the vote to do something of this nature if they chose to do so, and I hope we do. Senator ERVIN. Senator Gurney.

Senator GURNEY. I certainly commend the distinguished Senator of Virginia for his contribution here. I think his approach has a great deal of merit.

As a general rule, Federal courts have been reserved for deciding questions of law that are Federal matters, and State courts, of course, for matters peculiarly within the jurisdiction of the State. I can't think of anything that is more local than the problems of the schools throughout the United States. They may be run by counties-that is true in my own State and I guess in many States in the Nation. And there are some where they are run by cities and not even counties.

When we got into this problem of busing, the schools were really neighborhood problems, and the PTA's were formed from neighbors who lived in the communities where the children went to school.

So I think this problem is a local matter, for a State court, and I commend the Senator for his approach in this bill.

Senator ERVIN. Thank you very much.

The next witness is Congressman Robert J. Huber, Representative from the 18th Congressional District of Michigan.

We welcome you to the committee and commend you for your interest in this matter which certainly affects your State as it affects virtually every other State in the Union at this time.

TESTIMONY OF HON. ROBERT J. HUBER, A REPRESENTATIVE IN THE U.S. CONGRESS FROM THE STATE OF MICHIGAN

Mr. HUBER. Thank you, Senator.

I wish to thank Senator Ervin's committee for the opportunity to testify here today, and commend the committee for holding hearings on the controversial issue of busing, and hope that some good will result from it.

The real issue behind the busing furor is not, as some of its advocates would have us believe, busing per se. The issue at hand is actually who is going to control the education of the child, the parents or the State? And if you think this is farfetched, let me assure you that it is not. Last year, the U.S. Civil Rights Commission put out a booklet entitled "Your Child and Busing." In the pamphlet, the Commission goes to some lengths to reassure parents that forced busing is actually benefical to their children and that any fears the parents have are misguided. One of the arguments made in favor of forced busing is: 'Clearly, parents cannot on their own make the final decision about where to send their children for public schooling."

Now, I, for one, do not find it particularly reassuring to know that one Government agency doesn't think the American parent has the native intelligence to decide what is in their own child's best interest. It is precisely this elitist and condescending attitude by the Federal Government that has brought about the current widespread hostility and distrust of the U.S. Congress, and all government in general. If we are to regain the public's confidence we must do all that we can to return as much power as possible to the people. And one giant step forward would be for Congress to propose a constitutional amendment that would put an end to this travesty of forced busing.

I would hope that most Members of Congress are aware of the Gallup poll released last September (1973). In that poll, it was shown that 95 percent of the American public opposes forced busing for racial balance. Additionally, the President and countless Members of Congress have taken a stand against forced busing. So the question remains, why do we still have forced busing? I cannot answer, but I do know that I am extremely disappointed that the executive branch has not given much more than lip service to the problem. Mr. Lincoln one time said he had a case of the "slows." And I am also disappointed that the two bodies of Congress cannot seem to reach any mutual agreement on this subject. The result of this reluctance is that more and more courts are usurping our authority as legislators and thus breaking down our constitutional separation of powers.

It is a further tragedy that these courts are acting in a manner that is directly contrary to the law of the land. The Civil Rights Act of 1964 says that "desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance." It further states that

* 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 racial balance.

Obviously, the courts are clearly ignoring the intent of Congress with respect to the forced transportation of students. And yet, we re

fuse to act. I am, however, greatly encouraged by this committee's decision to hold hearings on this matter. It gives me hope that this Congress may yet take some action to resolve the forced busing controversy.

There is only one action, though, that can put an end to this chaos, and that is for the Congress to vote out a proposed constitutional amendment that would have the effect of banning forced busing. This is the best and most feasible method of stopping the Court's constant subversion of our intent with respect to the busing issue.

Many of those who promote forced busing say they are doing so in order to insure that students are receiving "equal educational opportunities" because everyone is entitled, under the 14th amendment, to "equal protection of the law." This thinking ignores a 1973 ruling by the Supreme Court wherein they stated, "education is not within the limited category of rights recognized by this Court as guaranteed by the Constitution." If that is the case, then I sincerely believe that new laws abolishing forced busing could be passed by the Congress and found constitutional by the courts. Nevertheless, there is some risk in that approach for it has become exceedingly difficult to judge just exactly what the courts are going to hold constitutional. The safest route is, obviously, the constitutional amendment.

Further, many sociologists argued that giving minorities the same "equal educational opportunities" as others would improve the minority's learning skills and improve their educational achievements. There are two problems with this type of thinking. First, saying that members of a minority race can only benefit by associating with members of a majority race is blatantly racist and I do not condone such thinking. Of course I do recognize that many of these sociologists are sincerely trying to promote a common "good" rather than foster further racial antagonisms. What people often overlook in our society is that there is often more evil done in the name of good than one imagines. In other words, the ends justify the means a philosophy to which I do not subscribe-for there is no justification, ever, to imposing something that is wrong in order to achieve what one thinks is a worthwhile goal.

The second problem with the sociologists' and the courts' thinking is their absolute refusal to look at the results now that we have had several years of busing in some areas. I think it is worth noting what has happened in these communities. Jeffery J. Leech, writing in volume 6, No. 4 (1973) of the Indiana Law Review, points out that

In every city studied, busing failed to reduce the gap between black and white achievement. In fact, most cities reported that the achievement gap had grown even larger after busing. Scholars who have reviewed the evidence, including Armor, Bell, Edmonds, Glazer, and St. John, have concluded that busing has little, if any, effect on the academic achievement of either black or white children. Thus, the most recent sociological evidence fails to confirm a basic premise underlying the rationale for court ordered busing; i.e., that it will positively affect the academic performance of the minority children.

So, since the hoped-for goals of forced busing have not been achieved. I cannot comprehend why some persist in clinging to the myth that forced busing of students will bring about an "equal education."

The noted professor of education and social structure at Harvard, Nathan Glazer, hit the nail on the head when he wrote in an article entitled, "Is Busing Necessary?":