The Court itself calls this suspension an "interim period." Referring to remedial altering of school zones in Swann, it said:

"As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a Court." [402 U.S. 1 at page 27; 28 Law Ed 2nd 554 at page 573; 91SCt 1267 at 1282]

Noting the burdens which court orders impose-burdens the Court itself admits may be "administratively awkward, inconvenient and even bizarre❞— the Court says, "but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems. [402 U.S. 1 page 28; Law Ed 2nd 554 at page 575; 91SCt 1267 at 1282]

It follows therefore that Congress is at liberty to impose a legislative definition of a normal interim period. Moreover, the situation which the courts are seeking to remedy is in constant flux. School authorities, pupils, and families come and go. The inherent logic of the Supreme Court's argument demands that the extraordinary suspension of Constitutional rights come to an end within a reasonable length of time. The Court itself accepted its own logic. In the remarkable concluding paragraphs of Swann, the Court had this to say:

"At some point, these school authorities and others like them should have achieved full compliance with this Court's decision in Brown I. The systems will then be "unitary” in the sense required by our decisions in Green and Alexander. It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make yearby-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that Federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary." [402 US 1 at 31; 28 Law Ed 2nd 554 at 575; 91SCt 1267 at 1283] Working strictly within the constraints of the Court's reasoning, we can see therefore that there can and must be an end to pupil assignments on the basis of race. There can and must be an end to busing, pairing, zoning, and so forth. A return to neighborhood schools is not only desirable, but feasible under current court decisions. The only question is when.

IV. THE DURATION OF COURT JURISDICTION

Thus neither school authorities nor district courts are required to adjust the racial composition of student bodies "once the affirmative duty to desegregate has been accomplished and racial discrimination through official action has been eliminated from the system." The suspension of the Constitutional right of pupils not to be assigned to a school on the basis of race is of limited, but indefinite duration. Since the Supreme Court itself has admitted that the suspension of rights is of limited duration, it is entirely proper for the Congress of the United States to pass legislation setting a definite time limit during which the courts can suspend these rights.

I believe that a great majority of school systems have by this time become desegregated under the terms of the original orders of the Federal courts, by compliance with the guidelines issued by the Commissioner of Education, or remain in a form historically instituted without reference to racial separation either by law or collusive drawing of attendance zones. Current problems before the courts accordingly are, in possibly a majority of cases, directed against resegregation caused by population shifts occurring subsequent to prior school desegregation. Quite frequently it is argued that the actions of school authorities, although possibly taken today without regard to race, are tainted by the vestiges of past actions. In the forefront of such actions are those which attempt to overcome the increasing concentration of blacks in inner city areas by overriding political boundaries existing between different school systems as in the cases of Richmond and Detroit where massive busing into suburbs has been directed. Yet in every case, the orders are different, the standards are different, and the burdens to be borne and the levels of compliance are different. The length of time the school systems remain under court jurisdiction is entirely at the discretion of the court. Every court commands the establishment of a "unitary system," but the level of compliance varies. There are two difficulties. First, "unitary" is 30-623-74- -9

indefinite both in quantum and period of time. Second, the equitable doctrine of continuing jurisdiction over an existing decree permits the courts to change pre-existing orders from time to time in order to correct situations which have changed after an initial determination and local compliance.

It is within the power of Congress to statutorily define the unitary concept, to fix its effective period and to terminate continuing District Court jurisdiction, provided only that in so doing the Congress does not specifically or by implication permit the restoration of a school system based on racial separation.

V. THE REMEDY

The Public School Jurisdiction Act provides the required remedy. It defines a "unitary school system" within the constraints of current practices.

(1) First of all, it accepts the work of any Federal court that has approved a desegregation plan to achieve a unitary system. If the court has said that such and such a plan will bring a system into compliance, then the Public School Jurisdiction Act agrees that it is a plan which will bring about compliance. In the same way, the Public School Jurisdiction Act also accepts compliance with any specific plan or generally published guideline authorized or approved by the Commissioner of Education. Both accomplish the same end and should have equal standing in the light of the numerous court references to such guidelines as indicative of the meaning of the term "desegregated school."

Thus this first definition does not negate any plan currently in effect. It makes every court order and every HEW pupil assignment plan part of the definition of “unitary school system." There are some activists who say that present plans do not go far enough. Yet, present plans must go at least as far as the Supreme Court itself has gone. Those who want to go further are not arguing law, but questions of policy.

(2) The Public School Jurisdiction Act's second definition of a unitary school system accepts the decision of any court of the United States upholding a pupil assignment plan as in compliance with the laws and Constitution of the United States. Thus any school system which has successfully defended itself against the charge of unconstitutional actions is, on the face of it, a unitary school system. This is really a corollary of the first definition. A court decides whether a school system is unitary or not.

(3) The Public School Jurisdiction Act's third definition of a unitary school system also involves a court test. Here, if a court decided that attendance zones were originally established with reasonable geographical divisions without the intent to discriminate-and no changes had been made except for reasonable educational discretion-then such a school system is a unitary school system. Such a finding is a reasonable defense against demands that school attendance zones be altered within a system, or that the system be merged with adjacent systems in other political jurisdictions.

(4) The Public School Jurisdiction Act's fourth definition recognizes that many courts under a plea of equity have tried to fashion some formula for the over-all racial composition of student bodies as evidence of the school authorities' affirmative action. Up to now, this has been left to the decision of the individual judge, with no guidelines for him to follow. The courts have acted variously with respect to their racial ratio requirements, which, despite Federal assistance legislation to the contrary, is being used by the Federal courts and to some extent as well by the Department of Health, Education and Welfare as a target for the requirements of busing and the other techniques. Most courts have differed in the extent to which they view an approximation of local racial ratios as being required and the extent to which it will be applied across the board to all public schools in the system or be compromised to lessen the amount of change required. In fact, in Swann, the Supreme Court was at pains to point out that it approved the District Court's order only because that order was not to be interpreted as a "fixed mathematical racial balance." The Court said:

"If we were to read the holding of the District Court to require, as a matter of substantive Constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The Constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." [402 US 1 at 24; 28 Law Ed 2nd 554 at 571; 91SCt 1267 at 1280]

Indeed, the Supreme Court quoted approvingly from the District Court's own explanation as follows:

"This court [the District Court] has not ruled and does not rule that 'racial balance' is required under the Constitution; nor that all black schools in all cities are unlawful; nor that all school boards must bus children or violate the Constitution; nor that the particular order entered in this case would be correct in other circumstances not before this court." (Emphasis in original) [402 US 1 at 24 (n. 9); 28 Law Ed 2nd 554 at 571 (n. 9); 91SCt 1267 at 1280 (n. 9)] Although the Supreme Court thus holds that there does not have to be a rigid mathematical formula, there are still no guidelines for a lower court to follow in fashioning a remedy in equity. The Public School Jurisdiction Act has a formula under which Congress sets up the parameters. It provides for the kind of flexibility which the Supreme Court demanded in Swann, keeping in mind that the Court only approved a "very limited use made of mathematical ratios . . . within the equitable remedial discretion of the District Court." These limitations must be borne in mind. [402 US 1 at 25; 28 Law Ed 2nd 554 at 572; 91SCt 1267 at 1280] Basically, the formula would provide that a control group of not less than twothirds of the schools of a local educational agency would have to meet certain standards of racial composition in enrollment if the school system does not otherwise qualify as a unitary school system. These standards would be based upon the ratio of whites and blacks in the school system: an individual school in the control group would have to have at least one-third of the percentage of majority students in the school population as a whole, and one-third of the percentage of minority students in the school population taken as a whole.

All in all these are not definitions which I endorse for their substance; I endorse them because they will work within the system as it is now constituted. They provide fair definitions of a unitary school system so that judges will have an objective standard of justice, nor do they upset current legislation or court orders on the subject.

(5) The other aspect of definition is to put a limitation on the duration of the suspension of the Constitutional right of students not to be assigned to schools on the basis of race. As I have already pointed out, it is unhealthy for Contitutional rights to be suspended indefinitely. Congress can put a reasonable limitation on the length of time required to demonstrate that a dual school system has been abandoned. It would be highly suspect if Congress were to put severe limitations on the so-called remedies available to courts in equity. It might be charged that due process of law or equal protection was being abridged by statute. But a reasonable time limitation violates neither. The courts would still have all the powers that they now have to order desegregation plans, to order busing, pairing, and so forth. The power to order the organizational disruption that we now have in our school systems would not be abated. The only difference would be that it could not go on forever.

The Public School Jurisdiction Act sets a limitation of one full school year. This would apply either to schools on a nine-month plan or on a twelve-month plan. It assumes that the school authorities are acting in good faith and that they actually do what they are ordered to do. One year is a significant administrative unit in a school system, as pupils normally move from one grade to another in that year's time. The courts will see to it that the assignment plan is comprehensive enough to compensate for past unconstitutional practices; the year's duration under the court's jurisdiction will see to it that a Constitutional assignment plan is actually in operation.

It must be remembered that the Supreme Court has said that the Constitution itself does not command proportional racial composition of student bodies; once a violation has been corrected, the Constitution is indifferent to assignment methods, so long as school authorities do not make assignments on the basis of race. School authorities are not required to make pupil assignment adjustments for discrimination that may result from other factors in society, once the affirmative duty to discriminate has been accomplished. This means that the neighborhood school-favored by the overwhelming majority of Americans of both races-can return once the violations have been corrected.

During the space of a school year, the dislocations of student bodies and teachers would have to be endured. There is no way within the present grammar of the court decisions that this can be evaded where the schools have been found to be operating dual systems. But it would be endurable because the end would be in sight.

Moreover, many school systems have already met and have been meeting the definition of a unitary school system for one, two, three, or four years. Under the Public School Jurisdiction Act, they could pass the test immediately. What

counts as far as meeting the Constitutional test is the actual time served under court orders without regard to the passage of the Public School Jurisdiction Act. A statute cannot affect the Constitutionality of an action.

At the end of a full school year, the school authorities, State officials, or any parent can apply to have the case reopened so that the judge involved can submit the case to a jury to make a determination that the school system has met the statutory definition of a unitary school system for a full school year. The determination is narrowly limited to questions of fact, i.e., whether the plan decreed by the court has in fact been followed. The judge would have no opportunity to reassess the case itself or to consider new data.

Upon reopening of the case, enforcement of the judge's court order is stayed until the final determination has been made. This would ensure prompt actions by the Court so that any affected parties could make a timely appeal if desired. (6) Once the determination was made that the school authorities had been operating a unitary school system for the required length of time, then the system would be released from Federal District or Appeals Court jurisdiction in matters relating to segregation and allied problems. The matters could not be raised again in the Federal courts.

Nevertheless, the full system of State courts remains open to plaintiffs who allege that their Constitutional rights have been abridged by some action of the school authorities, including appeal to the U.S. Supreme Court.

Thus it is clear that due process and equal protection are carefully preserved by the Public School Jurisdiction Act. Every school system may be brought into Federal court at least once, and that court will have the opportunity to apply the full range of so-called "remedies" that it perceives to be necessary. The "unitary school system" which the U.S. Supreme Court says is Constitutionally required will have been established and it will have actually been put into operation. If further State-directed discrimination occurs, the full range of State courts is available for redress. The United States Constitution would assure this, but for the sake of clarity, the Public School Jurisdiction Act spells it out.

(7) Finally, the Public School Jurisdiction Act provides a specific exemption to preserve the right of any student who feels he has secured particular advantages under any current assignment plan. I think we can be sure that most parents will wish their children to attend school under a neighborhood school plan if one is offered. There may be some who are being transported to schools outside their neighborhood where they feel they have special advantages. If there are such, they can be allowed to continue to be transported to those schools if they so choose. They have this right not by Constitutional protection, but in the interests of good educational policy and sound community relations. Thus, under the Public School Jurisdiction Act, no child would lose what he or his parent perceives to be an advantage from the current system.

(8) The Public School Jurisdiction Act preserves the interests of all those concerned. It maintains current court holdings, decrees, and HEW plans. It preserves all Constitutional rights under the present mode of interpretation. It provides for the orderly termination of Federal court jurisdiction so that standards are uniform throughout the Nation. It provides for the early restoration of local control over attendance plans. And it safeguards the interests of those who feel they have obtained advantages under the present situation.

But most of all, it will bring about the re-building of a wholesome educational atmosphere and constructive community relations. The best society is the society that has the maximum of free choice and evolves from the myriad decisions of each citizen over the years, and over the generations. To destroy that organic development is to destroy the very fabric of a healthy society. The destruction has been imposed upon us by the courts, and it is time for Congress to being re-building.

Senator HELMS. Thank you very much, sir.

Senator ERVIN. The equal protection clause provides that no State shall deprive any person within its jurisdiction of equal protection of the laws.

Is it not obvious that this clause was put in the Constitution so that it would be for the protection of the American people?

Senator HELMS. Yes, sir.

Senator ERVIN. Let me ask you this.

When the Supreme Court holds that the equal protection clause requires or permits little children to be denied the right to attend their neighborhood schools and requires or permits them to be bused to schools elsewhere, does not the Court in effect convert a constitutional principle which was designed to prevent tyranny by the States and permit tyranny to be inflicted by the Federal Government?

Senator HELMS. Mr. Chairman, as is customary, you are eminently

correct.

Senator ERVIN. Thank you very much.

Senator Cook?

Senator Cook. No questions.

Senator ERVIN. Thank you.

Senator HELMS. Thank you very much, Mr. Chairman.

Senator ERVIN. The next witness is Mrs. Jean Ruffra, who speaks on behalf of herself and the organization known as Save Our Community Schools, Inc., in Louisville, Ky.

Mrs. Ruffra, I would like to welcome you to the committee. The committee has received at least 2,500 telegrams from Kentucky in support of your position and in support of some of these bills.

I am not going to put all of these in the record, but I am going to read only some that were picked out of the sample. One of them is from Mr. and Mrs. Louis E. Douglas. "We fully support S. 1737 that will restrict the Court from busing our grandchildren." One from Mr. and Mrs. Edmond Goldberg: "Busing is bad for everyone." One from L. H. Horton: "I fully support Senate bill 1737 which would restrict the Courts from busing our children."

This is one from Mr. Ronald Douglas which says—

You have our full support in passing legislation to prohibit forced busing of school children for any reason. Jefferson County, Kentucky is under court orders as of September. Your broad action to correct an unlawful interpretation of the law will endear you to millions of parents who will not surrender their prerogative to the state.

You may proceed.

TESTIMONY OF JEAN RUFFRA, SAVE OUR COMMUNITY SCHOOLS, INC., LOUISVILLE, KY.

Mrs. RUFFRA. Mr. Chairman and Senator Cook, thank you for this opportunity to testify before this committee on behalf of Save Our Community Schools, Inc., representing the citizens of Kentucky.

After hearing the testimony of Congressmen, attorneys, and school board members during these hearings, I feel very humble, but also pleased, to present our views on the busing issues.

Our organization consists of merely parents such as I, who are deeply concerned about our children and our country.

Jefferson County, Ky., is made up of three public school districts. Suits were filed against our school board for merger and desegregation of these three systems. If this is carried out, this system, the metro system, will contain approximately 140,000 students. The district Federal judge ruled that the schools were integrated and no State-imposed segregation exists within the three systems. The sixth circuit court overruled this decision, and an order for total integration and said boundary lines will impose no barriers.