and oceans of judicial sophistry can wash out the obvious fact that in so ruling this court is requiring the school board to violate the equal protection clause as it is interpreted in the Brown case. It is denying to the children that are being bused the right to attend their neighborhood schools solely on the basis of their race. I hope one of these days we will have sufficient judicial enlightenment for the courts to reach that obvious conclusion.

I want to commend you for your very fine statement, and also for the fact that you have faithfully stayed on the Charlotte-Mecklenburg School Board, have done the very best you could to promote the educational opportunities of Mecklenburg County students of all races under circumstances which I am sure would have tried the patience of a saint.

Mr. POE. Thank you, sir. I appreciate it.

Senator ERVIN. Thank you very much.

The next witness is Mr. James D. Rowe. Mr. Rowe represents the Henrico County Parent Teachers Association. He has been very active in community and educational affairs as a former member of the Lay Advisory Committee in Henrico County, chairman of a number of ad hoc committees on educational affairs, and for these reasons the committee is delighted to welcome him as a witness here today. I want to express to you our deep appreciation for your willingness

to come.

TESTIMONY OF JAMES D. ROWE, ATTORNEY, RICHMOND, VA. Mr. RowE. Thank you very much, Senator.

I appreciate your characterizing my position correctly. Earlier through inadvertence, Senator Allen referred to me as an attorney for the Richmond city school board. I wish to have that stricken from the record.

Mr. Chairman, members of the committee, I appreciate this opportunity to speak to you briefly on the question of the Constitution and forced busing for the purpose of achieving racial balance. My name is James D. Rowe. I am from the Richmond, Va., metropolitan area and am the father of three school-age children. I am a member of the Henrico County PTA which, as is the case with the national PTA, opposes busing.

RICHMOND METROPOLITAN AREA LITIGATION

Our metropolitan area was the subject of protracted litigation that lasted several years. The thrust of the case was an attempt to take a substantial step beyond the affirmative decisions that have required forced busing within governmental boundaries. An effort was made to consolidate by judicial decree three very large school districts operated by three separate and distinct political subdivisions-the city of Richmond and the counties of Henrico and Chesterfield-into one massive school district with buses running from one end of the metropolitan area to the other.

The decision of the Supreme Court in the Richmond case is, of course, a matter of record. The justices split four to four and, thereby, declined to hear an appeal of a circuit court ruling which held that the Constitution did not require consolidation of the three systems.

Thus, the Richmond city schools now operate under a highly complex court decree involving crosstown busing while the counties operate fully integrated, HEW approved, systems within their respective boundaries. In effect, we won our case by the narrowest of margins. Since I am from the county of Henrico, a separate and distinct political subvision, which is not involved in court-ordered busing, it may seem odd that I am testifying.

POTENTIAL IMPACT

Suppose, for the moment, that the case had gone the other way. We can argue and speculate on what the impact would have been. Some results, however, are not debatable. We would have one system comprised of over 100,000 students. I think that is getting too big, but don't take my word, Senator. Take the statement of the city superintendent of schools who was our adversary in the case: "You also reach a point, and I don't know exactly what that point is, some 50, 60, 70,000 students, whereby it becomes unwieldy *** particularly your curriculum ***" It is a fact that an adverse decision would have converted a 70- to 75-percent black city system into a permanent white supersystem with the minority always representing one-third of the student population. That, to me, is judicially decreed minority status. Again, let me quote an active participant in the case. Richmond's black vice mayor and I debated this issue publicly. He had misgivings despite his desire to accomplish a noble aim. He said, "We may be creating a monster, but I am willing to risk it." Surely that monster would have come into being if the court had ruled adversely in the Richmond case.

DEFINITIVE ACTION IS THE ONLY REAL SOLUTION

During the agony of our undecided court case, it became apparent to the citizens of my area-and I believe the Nation as a wholethat neither the executive nor the judicial branches of the National Government would ever resolve the dilemma in a final and satisfactory manner. In the last analysis, it is obvious that a constitutional resolution of the problem is essential. Being from Thomas Jefferson's State, I do not advocate frequent or easy constitutional amendments. The matters before you are not fly-by-night suggestions. They are the product of some long hard examination of factual results. There is a time to act. I think that time is now. The complex questions presented by unique problems in diverse areas such as Detroit or Richmond or Denver or San Francisco, and so forth, preclude simple equitable solutions. Lengthy congressional enactments and/or voluminous equity decrees, create more problems than they solve. The district court decision in Richmond was 325 pages long. Throughout the Nation, therefore, you find local governments confused and frustrated in their attempts to comply with vague constitutional law, while, at the same time, they try to achieve the undeniable demand of the citizenry for the best possible education of every child in the public school systems. It is time, gentlemen, for a decisive and clear answer. It can start in this subcommittee.

COMPLIANCE DOES NOT PRODUCE GOOD RESULTS

Obviously, busing is not achieving the desired aim. In the Richmond city schools, we have seen discipline break down. More to the point, there is a breakdown in the creation of basic skills. Children, black and white, are simply getting less education. And Lord knows, the city has tried. Its citizens have organized to "make the thing work." School administrators have left no stone unturned. Yet, it isn't working. True, the court-ordered mix is achieved by the buses. Quality education is not. The leading "pro" organization in Richmond has just announced that it wants to go back into court to reduce the amount of busing in the interest of returning to the more productive neighborhood school concept. They appear to be frustrated by the results of compliance with the court order, because the city, as I said, is under an order. The counties are not.

NATIONAL POSTURE HAS CHANGED

When the first court cases were brought and Congress enacted the icebreaking laws, there were those who strongly supported and those who just as strongly opposed. In the middle was a large group which seemed to say, "I don't know, give it a chance." I submit that group has made up its mind. A recent Gallup poll indicates that 1 person in 20, thinks busing is the solution to the problem. The very same poll says that only one in five opposes integration of schools. In my opinion, the vast majority of Americans want an answer that will stop forced busing as the solution to the problem.

PARENTAL SUPPORT IS ESSENTIAL

This Nation has learned on several occasions that no matter how noble the venture, unless the people support it, it is doomed to failure. People do not support busing and it is failing. I sometimes think that those of differing views than mine do not want the people to have a chance to express their objections to the evil of forced busing.

MORE FAR-REACHING CONSEQUENCES

Obviously, we have some problems to solve in America: The core cities, the structure of State and local government, racial inequities, et cetera. Mangling school systems for these purposes is not the solution and recent history bears this out. It is difficult to find a supportable position that asserts that we are making progress in education while negative dissertations pile one on top of the other. In Richmond and Detroit and Denver, we see attempts not just to restructure schools, but to restructure local government. All this is done in the name of improving the education of blacks. You gentlemen are in a better position than I to judge the results. I would respectfully suggest that you do so.

CONGRESSIONAL ROLE

The people see Congress reasserting its historical role. It is in the area of unpopular busing that you have a fine opportunity. The judiciary does not seem anxious to handle case after case and the

executive branch is not the appropriate arm for resolving the question. So, I strongly urge you to prohibit forced busing for the purpose of achieving racial balance, and I urge you to do it with dispatch. Constitutional rights should not be vague or hard to understand.

I would like to follow up on the quotation Senator Allen made in his remarks.

The problem is this: The District Court had ruled, and I have some quotations which are very brief, requiring the establishment of a single school system; causing title to all school property to be transferred to the new school board; and requiring the Virginia State Board of Education, within 60 days, to file regulations covering the financial plan of operation. This was the thrust of the court order.

In my sister county of Chesterfield the board of supervisors was having a difficult time, and therefore they passed a resolution in which they said—these are elected officials, Senator—if the members of this board could remain independent to vote in accordance with their collective judgment and will, they would unanimously refuse. But their attorney had advised them that the court order of January 10, 1972, mandatorily directed they cast their votes in favor. Then, the board proceeded to say: now, therefore, acting under duress, coercion and compulsion of the penalties consequent for doing otherwise, we vote the way the judge told us to.

Senator ERVIN. They violated Mark Twain's injunction. Mark Twain is reputed to have said, “truth is very precious, use it sparingly." They didn't use it very sparingly.

Mr. Rowe. I am afraid that is true.

I would simply close by hoping and praying that the Senate, in its wisdom, will understand what almost happened in Richmond. I would like to meet the gentleman from Charlotte afterward. I sat back there and said to myself, there but for the grace of God go I. It happened to Charlotte instead of Richmond.

The Richmond case, by court record, was not a busing case. The Richmond case was a government consolidation case. In Virginia, you have a different scheme. You are either a citizen of Henrico, Chesterfield, or Richmond. If Virginia chooses to structure its government that way we have the right for the time being.

There are cases similar to the situations in Detroit where school districts may read the morning paper and find out they had been through a trial and that they had lost it. They had never been served with the first piece of paper. Fortunately we were served and have been able to defend ourselves.

I thank you for the opportunity to appear.

Senator ERVIN. It seems to me that Judge Merhige's decision constitutes a very serious assault on State legislative authority. He attempted to destroy the boundary lines which the State in exercise of its constitutional power had established. The decision attempted to supplant the officials who had been intrusted by the State of Virginia with the exercise of State governmental powers. I just cannot conceive of how a Federal judge ever reaches the point that he is vested with such arbitrary authority as that.

Mr. Rowe. I couldn't agree with you more, Senator.

Once, in a speech that I made on this subject in New York, I had the audacity to review the judge's opinion and grade him. The ques

tion was would I give him an A or B or C or F, and in those remarks I said I would give him an I for Incomplete, because, in his terrifying order, he required a lot of steps to be taken in case it was affirmed. The State school board said we will form committees and the committees will be named as are the paragraphs in his order. Chesterfield County objected after 13 or 14 committees had been appointed. They said they had to have another committee. The others said they thought they had enough committees. It was pointed out that the district court, in its great equity decree on how the school system should be run, neglected to mention the word curriculum and it was thought it would be nice if a school system with 100,000 students had a curriculum.

Senator ERVIN. The thing that concerns me about that case is not only its impact on subdivisions of the State, but also its impact on State constitutional power in general. I don't see how in the world it wouldn't equally apply to destroying State boundary lines between two or more States.

Mr. Rowe. No question about that. I have some friends up North and I have tried to get them to explain to me the difference between Henrico and the City of Richmond and the District of Columbia and Arlington, for example.

Judge Merhige did mention Hanover County which lies to the north of the city. I have the impression the concept was if we don't have them now we will reach out and get them when the time is right.

Senator ERVIN. I can't escape the conviction that it is only a question of degree between Federal courts saying to little children you have got to go to schools that I select and saying to the parents you have got to live in communities that I select in order that we may get this racial balance without so much difficulty.

Mr. Rowe. That is one solution to the problem that I don't advocate, but I guess that would solve the problem.

Senator ERVIN. I don't advocate it either, but I think it is a question of degree between those two powers. Both are similar.

Mr. Rowe. I have seen nothing to indicate any Federal judge thought he did not have that power. They just haven't exercised it yet.

Senator ERVIN. There is the wise, old saying, that eternal vigilance is the price of liberty. We had better be as vigilant about the judges as the legislators.

Mr. Rowe. As you know, Senator Byrd from the State of Virginia has some ideas on that subject.

Senator ERVIN. Thank you for a most illuminating presentation. I am glad you read from the record some of the things Senator Allen omitted because I think they are very significant and unfortunately constitute the truth.

Mr. Rowe. This is true.

Thank you very much, Senator.

Senator ERVIN. The committee will stand in recess until 10 a.m. tomorrow when it will meet in room 1318 of the Dirksen Office Building, which is this office building.

[Whereupon, at 12:15 p.m., the committee was recessed to meet again Thursday, February 12, 1974, at 10 a.m.]

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