818 NORTH CAROLINA LAW REVIEW [Vol. 50 and similar schemes for defeating the orderly processes of school desegregation, were declared unconstitutional. And, with the passage of time, the Supreme Court began to press for results. In 1964 the Supreme Court ruled that “[t]he time for more 'deliberate speed' has run out. . . ."" In 1968 it ruled that "[t]he burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now. 57 In October 1969 it ruled that "the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools." ." In December 1969 the Supreme Court denied two requests for more delay, because “[t]he burden on a school board is to desegregate an unconstitutional dual system at once.' 9150 "Griffin v. County School Bd., 377 U.S. 218, 234 (1964). This case involved Prince Edward County, Virginia, one of the defendants in the 1954 Brown decision. After that adverse opinion, the county officials had closed the public schools and had contributed public support to “private” segregated white academies, leaving the black population substantially without any educational opportunities. The Court ordered the local school board to reopen the public schools and to cease giving financial assistance to the parents of the white children attending the “private” schools. "Green v. County School Bd., 391 U.S. 430, 439 (1968) (emphasis by the Court). Here, the Supreme Court held that a "freedom of choice" plan that allows the individual pupil to choose his own public school does not constitute adequate compliance with the decision in Brown v. Board of Educ. There were two schools in the county and no attendance zones. Under the "freedom of choice" plan, all the white children chose the school formerly restricted to whites, and all but a handful of the black children selected the school formerly restricted to blacks. The Court ordered the school board "to convert promptly to a system without a 'white' school and a ‘Negro' school, but just schools." 391 U.S. at 442. SA Alexander v. Holmes County Board of Educ., 396 U.S. 19 (1969) (per curiam). In early July, the court of appeals ordered a number of Mississippi school systems to desegregate by the opening of the coming school year. In late August, the Department of Justice (on the recommendation of the Secretary of the Department of Health, Education, and Welfare) moved the court of appeals to delay the date of the integration order, and the court of appeals did so. See Alexander v. Holmes County Bd. of Educ., 396 U.S. 1218 (Black, Circuit Justice, 1969). The Supreme Court reversed and directed the school systems "immediately to operate as unitary school systems within which no person is to be effectively excluded from any school because of race or color." 396 U.S. at 20. "Dowell v. Board of Educ., 396 U.S. 269, 270 (1969) (per curiam); accord, Carter v. West Feliciana Parish School Bd., 396 U.S. 226 (1969) (per curiam). In Carter, the court of appeals on December 1, 1969, ordered certain plans for the desegregation of three Louisiana school districts but postponed the effective date of the plans until the school year of 1970-71. The Supreme Court reversed and ordered the plans implemented by February 1, 1970. In Dowell, the district court on August 13, 1969, ordered the revision of some school attendance boundaries by September 2, 1969. On August 27 the court of appeals reversed the "partial plan." The Supreme Court in turn reversed the court of appeals because the school board must "desegregate an unconstitutional dual system at once." 396 U.S. at 270 (emphasis added). In Keyes v. School Dist. Number One, 396 U.S. 1215 (1969), the court of appeals had postponed a desegregation order "on the premise that public support for the plan might be developed" during the period of delay. Id. at 1217. Mr. Justice Brennan, sitting as a Circuit Justice, 1972] MORATORIUM ON "BUSING" ORDERS 819 To comply with these decisions it is sometimes necessary to order that the children living in one segregated neighborhood attend schools located in a different neighborhood. This requires transportation, or busing. The constitutionality of this judicial remedy was decided for the first time in a series of cases decided in the spring of 1971. THE 1971 BUSING CASES In his television address of March 16, 1972, President Nixon came out against "busing children across a city to an inferior school just to meet some social planner's concept of what is considered to be the correct racial balance." He also inveighed against "social planners who insist on more busing even at the cost of better education."" Earlier, he had told the nation that "I am opposed to the busing of children simply for the sake of busing." The implication in these statements is that the federal courts-from Chief Justice Burger on down-approved of busing "for the sake of busing," that the Supreme Court and the lower federal courts had embarked upon a massive busing program to achieve “racial balance" in each and every classroom throughout the nation. Nothing could be more erroneous. In April 1971 Chief Justice Burger wrote three decisions, in which all members of the Supreme Court agreed, dealing with various and different "busing" problems. But nowhere in any of these opinions did the Court say anything directly or remotely to justify the implications in the President's broadside. In Swann v. Charlotte-Mecklenburg Board of Education," the district judge had ordered that all schools have approximately the same racial balance "so that there will be no basis for contending that one reversed. Citing the Little Rock case, Cooper v. Aaron, 358 U.S. 1 (1958), he said that "the desirability of developing public support for a plan designed to redress de jure segregation cannot be justification for delay. 396 U.S. at 1217. "Stone, Moving the Constitution to the Back of the Bus, New York Review of Books, April 20, 1972, at 10. "N.Y. Times, March 17, 1972, at 22, col. 1. "This was on August 3, 1971, when he announced at a press conference that he had asked the Secretary of HEW to submit to Congress an amendment to the proposed Emergency School Assistance Act that would "expressly prohibit expenditure of any of those funds for busing." N.Y. Times, Aug. 4, 1971, at 15, col. 3. The Emergency School Assistance Act authorized the expenditure of $1.5 billion to aid and assist in the process of achieving a “unitary" school system. Id. 306 F. Supp. 1299, 1312 (W.D.N.C. 1969). 820 NORTH CAROLINA LAW REVIEW [Vol. 50 school is racially different from the others."" He also ordered that the children beyond walking distance be “bused” to their new schools. The Supreme Court unanimously approved of this “plan” under the particular situation existing in that city, stating that “[a]wareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations."" In the companion case of McDaniel v. Barresi," the Board of Education of Clarke County, Georgia (not the federal court) established geographic zones for the elementary schools, with the proviso that pupils in Negro residential “pockets” were to be bused to schools in other attendance zones. The resulting Negro enrollment ranged from twenty to forty percent in all but two schools, in which it was fifty percent. The white-black ratio in the system as a whole was approximately two to one. The Supreme Court also unanimously approved this plan because of the particular situation existing in that county. In neither case did the Supreme Court approve fixed "racial quotas." In the Swann case, it approved the “norm” of a 71-29 white-toblack ratio in all the schools, but only as a "starting point" to end segregation. The Court expressly noted that had the district court sequired "as a matter of substantive constitutional right, any particular "Charlotte had segregated residential patterns that had resulted in part from federal, state, and local govermental action. Prior to Brown Charlotte had a segregated dual school: system. After Brown Charlotte embarked upon a school construction program, locating a series of small elementary schools deep within the different residential zones. In 1966, Charlotte abandoned its dual school system and assigned children to the school nearest their homes under a free transfer program. The result was that two-thirds of the Negro students attended 21 schools that were either totally or more than 99% black. The faculties and the school buses were equally segregated. Judge McMillan ordered school assignment on a "satellite zone” basis. One black inner-city school was grouped with two or three white outlying schools; children from grades one through four were assigned to the outlying schools; and children in grades four through six were assigned to the inner-city schools. The Supreme Court approved of these gerrymandered school districts and attendance zones: Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situatons and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 (1971). Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. I, 25 (1971). 1972] MORATORIUM ON "BUSING" ORDERS 821 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."67 In both of these cases, the Supreme Court approved of the busing of some school children because "[d]esegregation plans cannot be limited to the walk-in school." But the Supreme Court again was careful to note that there might well be limits imposed on future busing plans. The Court expressly warned the lower courts that “[a]n objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process.' "The Court then added: "It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students." 970 To underscore and emphasize this point, the Supreme Court noted the "busing" situation in each of the two cases before it. Under the new desegregation plan in Clarke County, "[t]he annual transportation expenses of the present plan are reported in the record to be $11,070 less than the school system spent on transportation during the 1968-1969 school year under dual [segregated] operation."" Under the new desegregation plan in Charlotte-Mecklenburg, [t]he trips for elementary school pupils average about seven miles and the District Court found that they would take "not over 35 minutes at the most." This system compares favorably with the transportation plan previously operated in Charlotte under which each day 23,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour."2 It was because of "these circumstances" that the Supreme Court affirmed the use of "bus transportation as one tool of school desegregation."73 More germane to this article, however, are the Court holdings "7402 U.S. at 24 (emphasis added). Id. at 30. "Id. at 30-31. 70Id. at 31. 71402 U.S. at 40 n.2. 72402 U.S. at 30 (emphasis added) (footnote omitted). 73ld. 30-623 O 74 12 822 NORTH CAROLINA LAW REVIEW [Vol. 50 regarding the "broad remedial powers of a court" in school desegregation cases to order "interim corrective measures.' 1974 The litigation in the Swann case began in the spring in 1969, and the district court then ordered the school board to consider a plan that included elements of “busing.” The North Carolina General Assembly promptly enacted an “Anti-Busing Law."" This statute prohibited the local schools boards from doing any of three things: It provided that "[n]o student shall be assigned or compelled to attend any school on account of race . . .," that no student shall be assigned to any school "for the purpose of creating a balance or ratio of race," and that "[i]nvoluntary busing of students in contravention of this article is prohibited. ."" In North Carolina State Board of Education v. Swann," the Chief Justice ruled for a unanimous Supreme Court that the state law was unconstitutional because "it operates to hinder vindication of federal constitutional guarantees."" The Supreme Court concluded that the prohibition against school assignments on the basis of race “against the background of segregation"" in this case could not withstand constitutional challenge; otherwise it "would render illusory the promise of Brown v. Board of Education." The Court concluded on this point that "[j]ust as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy." To compel school authorities to be "color blind" and ignore factors of race would deprive them "of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems." The Court similarly concluded that the "prohibition against transportation of students assigned on the basis of race" will hamper the ability "to effectively remedy constitutional violations," for "bus transportation has long been an integral part of all public educational systems, and it is unlikely that a truly effective remedy could be devised without continued reliance 83 it.' upon "Id. at 27. 7 Ch. 1274, [1969] N.C. Sess. L. 1495. "N.C. Gen. Stat. § 115-176.1 (Supp. 1971). 77402 U.S. 43 (1971). 78 Id. at 45. "Id. NoId. at 46. Mld. 2 Id. 3ld. |