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1 the operation of such school, or (B) the employment, assign2 ment, reassignment, transfer, or retention of any member of 3 the teaching or administrative staff of any such school, or (C) 4 any appropriation or expenditure of any funds for the con5 struction, maintenance, equipment, or operation of any such 6 school, or (D) the accreditation of any such school by any 7 public or private agency, or its inclusion in any published list 8 or directory of accredited schools, if such school is, or is part 9 of, a unitary public school system as defined in section 401 10 (g) of the Civil Rights Act of 1964, and has been so for 11 the period specified in paragraph (a) of this section. 12 "(c) The provisions of this section shall apply with 13 respect to any civil case or controversy now pending or here14 after brought in or removed to any court of the United States 15 for or with respect to the desegregation of the public elemen16 tary and secondary schools of the local educational agency or 17 for or with respect to the appropriation or expenditure of 18 funds for the construction, equipment, maintenance, opera19 tion, or support thereof.

20

"(d) On application therefor by any local educational 21 agency, or by the parent of any student enrolled in any school 22 operated by such agency, or by any State educational agency 23 or any State officer having supervisory authority over the 24 public elementary and secondary schools of such local educa25 tional agency, any prior judgment, decree, or order of any

30-623 - 745

7

1 district court of the United States or of any court of appeals 2 of the United States related to, providing for, or concerning 3 the assignment or transportation of students in or to the pub4 lic elementary and secondary schools of such local educational 5 agency, as a means to end or prevent or correct the effects of 6 segregation of students in the schools of such agency on the 7 basis of race, color, or national origin, shall be reopened by 8 such court and the court shall thereupon promptly submit to 9 jury determination as a question of fact whether or not the 10 public elementary and secondary schools of such agency are, 11 and have been, for the period specified in paragraph (a) of 12 this section, a unitary school system as defined in section 401 13 of the Civil Rights Act of 1964. Such application shall be 14 made by a motion in the cause in the case or controversy and 15 in the court in which such judgment, decree, or order has 16 been requested or was entered. Such application shall be 17 heard and the determination thereby prayed shall be made 18 within twelve months from the date on which the application 19 was filed. The filing of any such application shall stay the 20 enforcement of any existing order pending final determination 21 of the issue thereby raised.

22 "(e) Nothing contained in this section shall limit the 23 right of a local educational agency to change or alter its 24 administrative or financial policies following the termination

8

1 of Federal jurisdiction by reason of this section: Provided,

2 however, That

3

4

"(i) no such change thereafter made shall be for

the purpose of discriminating against any class of stu

5 dents or employees on the basis of race, color, or na

"(ii) no student shall be denied the right to con

tinue thereafter to attend the school to which such

6

7

8

9

10

student was assigned prior to such change and to be furnished the necessary transportation therefor.

11

"(f) Nothing contained in this section shall limit the 12 existing jurisdiction of the courts of any State with respect 13 to the public elementary and secondary schools of that State,

14 nor limit or affect the established review jurisdiction of the 15 Supreme Court of the United States over decisions of the 16 highest courts of the several States.".

17

SEC. 5. If any provision of this Act or of any amend18 ment made by this Act, or the application of any such 19 provision to any person or circumstances is held invalid, 20 the remainder of the provisions of this Act and of the 21 amendments made by this Act and the application of such 22 provision to other persons or circumstances shall not be 23 affected thereby.

Senator ERVIN. Senator Allen is the first witness today. Senator Allen is a cosponsor of the bill I have introduced and has been a staunch opponent of involuntary busing of schoolchildren for the purpose of achieving what is called "racial balance" or removing what is called a "racial imbalance." We are delighted to have Sentor Allen with us as our first witness this morning.

TESTIMONY OF HON. JAMES B. ALLEN, A U.S. SENATOR FROM THE STATE OF ALABAMA

Senator ALLEN. Thank you, Mr. Chairman, members of the subcommittee.

I appreciate this opportunity of appearing before the subcommittee, headed by a great statesman, the distinguished senior Senator from North Carolina, whose feats I might say I have studied since I have been in the Senate and with whom I have worked shoulder to shoulder in the Senate, in committee, and on the floor of the Senate, in the furtherance of principles of good government. I have been honored to follow the leadership of the distinguished Senator from North Carolina.

Senator ERVIN. That has been a mutual undertaking, because often I follow the leadership of the Senator from Alabama.

Senator ALLEN. That has been the other way around most of the time.

I want to assure you that has no connection with this hearing, possibly, but I regret the decision of the distinguished senior Senator of North Carolina not to remain in the Senate, and I feel that the Senate will lose much of its luster as the greatest deliberative body in the world when the distinguished senior Senator from North Carolina, Mr. Ervin, is no longer on the floor of the Senate to give his wise counsel to the Members there and to work for constitutional principles to which he has dedicated his life. I know that all of the Members of the Senate join me in expressing our deep personal sorrow at the decision of Senator Ervin not to come back to the Senate for the next session.

Senator ERVIN. I am deeply grateful for those remarks, and I would ask the recording angel-to drop a tear and blot out the iniquities engaged in by the distinguished Senator from Alabama when he prevaricated so eloquently in my behalf.

Senator ALLEN. I will be willing to answer for what I said.

I welcome the opportunity to testify in support of S. 619, cited as the Uniform Criteria Act of 1973 as well as S. 1737, a freedom of choice bill introduced by the distinguished Senator from North Carolina, Mr. Ervin, of which I have the honor of being a cosponsor.

These bills are two of several presently before the subcommittee which are designed to curb abuses of power associated with the practice of massive forced busing and crossbusing of schoolchildren.

As you know, Senators Ervin, Baker, Bible, Buckley, Helms, Nunn, Scott of Virginia, Sparkman, Stennis. Talmadge, Thurmond, and Tower joined in sponsoring S. 619. I feel that many other Members of the Senate would also have subscribed to it had the matter been called to their attention.

I am confident that none of us considers our proposal a panacea. Therefore, in speaking in support of the bill, we also support other bills before the committee with similar objectives. I am confident that after the subcommittee has carefully considered all proposals, it will combine the best provisions of each into a committee bill which, when enacted into law, will curb both executive and judicial abuses of power characterized by disruptive forced busing and cross-busing schemes.

I was happy to note that yesterday the distinguished chairman stated that he was in favor of a statute to forbid forced busing of schoolchildren to be followed by a constitutional amendment. The distinguished Senator from North Carolina is a foremost, if not the foremost, constitutional authority in this country in or out of the Senate. If Senator Ervin feels that this matter can be accomplished by statute under the Constitution I would feel that that would be highly persuasive of a statute, properly worded, being upheld by the Supreme Court.

Mr. Chairman, before reaching the merits of S. 619, I want to take this opportunity to compliment you and members of the subcommittee for your initiative in instituting these hearings. The hearings are both timely and of urgent importance, not only to individual victims of forced busing schemes, but also to Congress and to the Nation.

Mr. Chairman, seldom in the history of our Nation have we faced a situation where overwhelming numbers of citizens were simultaneously critical of the performance of the executive, legislative, and judicial branches of the Federal Government. We face that situation today. The reasons for popular disillusionment with the separate branches are different, but the complaint of unresponsiveness of the Federal Government to the will and wishes of a vast majority of the people is applicable to each. On reflection, I think the complaint is justified. For one thing, the Federal judiciary is not responsible to the people and was not intended to be; and it can hardly be expected to be responsive to the will of the people.

While the executive is responsible to the people it is not necessarily responsive to the will of the people. In fact, the Federal bureaucracy is well nigh uncontrollable and far too often is responsive neither to the people nor to their elected representatives.

Finally, there is increasing evidence that the vast majority of the people are dissatisfied with the performance of Congress. The charge against Congress is that it is not only not responsive, but also that it thwarts the will of the majority by many affirmative enactments and by denying the people recourse to constitutional amendment to protect what they conceive to be cherished liberties. I might state a recent Harris poll indicated an approval rating of some 20 percent for Congress as against some 24- or 28-percent approval for the Chief Executive.

Mr. Chairman, it is not my purpose or desire to make a case against Congress or to be unduly critical of Congress. However, I sincerely believe that congressional inaction in the face of overwhelming sentiment against forced busing is a tremendously important factor in the erosion of confidence in Congress. These hearings are very important as a concrete manifestation that a substantial number of the Members of Congress are concerned about just grievances stemming from a misuse of the coercive power of Government in the area of forced busing.