Thus, after 20 years of delay in the implementation of the Brown decision, we have a proposal to continue indefinitely the time in which that decision may become fully effective. Anyone familiar with our legal system knows that delay can become a way of life for those bent on delay, notwithstanding the expedited judicial determination provisions of the bill.

S. 287 goes much beyond S. 179. It would deny jurisdiction to Federal courts in any case involving a public school, except for appeal or petition for writ of certiorari to the Supreme Court.

While this would apply to school desegregation cases, it would also bar access to Federal courts in many other areas of constitutional law. For example, somebody mentioned this morning that they favored letting students wear their hair long if they wanted to; under this provision, that case could not get into Federal court for determination of the constitutional issues involved. Some other things that come to mind are first amendment rights relating to prayer in public schools, academic freedom, student protest; constitutionally protected property rights such as teacher tenure and pension rights; due process in teacher discharge cases, and so forth. It would lower the public school to the position of the only public institution whose activities are beyond constitutional review by the Federal courts. We see nothing in law or reason that would justify such a sweeping exemption and cannot believe that Congress will take this proposal seriously.

At a time when our country is torn by strife about whether Government officials have engaged in unlawful acts, it is tragic to see that an effort is being made to give statutory protection to acts and practices that have unlawfully delayed desegregation in the public schools. We urge that S. 179, S. 287, S. 619, S. 1737, and S. 2336 be rejected. Senator ERVIN. Thank you very much.

The Committee will stand in recess until 3 o'clock this afternoon. [Whereupon, at 1:15 o'clock p.m., the subcommittee was recessed, to reconvene at 3 p.m., the same day.]

AFTERNOON SESSION

Senator ERVIN. The committee will come to order.

The next witness is Mr. James Wells of the Liberty Lobby.

TESTIMONY OF JAMES WELLS, LIBERTY LOBBY

Mr. WELLS. Mr. Chairman, I am James Wells, an attorney from Detroit, Mich. I have represented Neighborhood Academies, Pontiac, Mich., the so-called freedom-of-choice schools during the busing problems of 1971. I am also a special consultant for Liberty Lobby, and appreciate this opportunity to present the views of Liberty Lobby's 20,000-member board of policy, and also to appear on behalf of the approximately 250,000 readers of its monthly legislative report, Liberty Letter.

The Pontiac school district was vitally affected by a school busing decision in 1971. Enrollment in the public school district dropped dramatically that year, while private school enrollment increased substantially. The white population began to move from within the school boundaries to other districts. NAACP predicted that within 5

years the city of Pontiac would revert to a substantially segregated school system by reason of "white flight."

At that time I was an attorney for Neighborhood Academies and enrollment in those academies, those private schools, was 400 at the height of the busing dispute in Pontiac. Other schools had waiting lists of many hundreds. But by the fall of 1972 the enrollment had diminished to 10. We kind of wondered why, so we conducted a survey of the children in the Neighborhood Academies, and it was found that 73 percent of the enrollees had moved with their families or had been transferred by their families to other school districts, often in other States.

The busing situation in Pontiac and many other communities had been further complicated by gasoline shortages. The board of education required an additional 106 buses to transport students for racial integration within the district. These buses use more than 1,500 gallons of gasoline daily. When stored gas supplies fell short recently, the school buses were filled at local service stations with consequent lineups, delays, and frustrations to the schools and citizens in the area.

Therefore, if this occurrence takes place in other areas as well as Pontiac, as I am sure it does, there will be some basis in fact—and I think there is for the popular opinion that conservation of desperately needed gasoline has not been allowed to interfere with the socially oriented goals of the Nation's social planners.

And I think the Civil Rights Commission, who were on earlier today, would be representative of that type of plan that I am talking about.

It is further noteworthy that on January 6, 1974, the director of transportation of the Pontiac school district announced that supplies of gasoline to the schools were exhausted, and that the schoolbuses would be filled by local filling stations in competition with the public, since the school would pay the prevailing retail gas price.

S. 1737, to amend the Civil Rights Act of 1964, tends to answer the questions raised by the U.S. Supreme Court in Swann v. CharlotteMecklenburg Board of Education. There was some confusion on the part of the Court as to whether the plain language of the proviso in section 2000c (b) and 2000c-6 said what it meant, or meant what it said.

Congress clearly said and I do not think that the man in the street would be confused with this langauge, but the Court seemed to be.

Desegregation means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but "desegregation" shall not mean the assignment of students to public schools in order to overcome racial imbalance. *** 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 such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards.

This bill should clarify the matter for the Court. It will be recalled that the Court interpreted the legislative history of the act to indicate "that Congress was concerned that the act might be read as creating a right of action under the 14th amendment in the situation of socalled de facto segregation. ***”

The legislative history of this bill, together with its reference in S. 1737 to the Court's jurisdiction, should leave no room for doubt of the bill's intent. Nevertheless, discussion on this point is necessary in the history of S. 1737, since the Court previously has questioned whether the Civil Rights Act did "withdraw from courts historic equitable remedial powers."

Turning to S. 1737, Senator, I note in section 1207, line 13-12 and 13 the following is stated: "No courts of the United States shall have jurisdiction to make any decision or enter any judgment or make any order" and so forth.

I would suggest, Senator, that three words be added between the word "jurisdiction" and "to make any decision." Those words would be "legal or equitable."

I think Senator Ervin, being a former supreme court judge, would understand that if we do not add those words, we are going to run into trouble; and I will explain how.

The Supreme Court, in reviewing cases involving the Emergency Price Control Act of 1942, announced the following doctrine “unless a statute in so many words, or by a necessary and inescapable inference, restricts the scope of that jurisdiction is to be recognized and applied."

This doctrine was based upon a dictum casually written in an 1836 opinion, Brown v. Swann, 10 Peters 497, 503. The extension of this doctrine of doubtful origin into schoolbusing has been disastrous. Schoolbusing has become punitive in character, since its benefits have been considered negligible or nonexistent by educational authorities. The 1836 opinion also stated that, "equity will be converted by the section into an assistant for the enforcement of a penalty; which has never been its province."

That is the situation that we are facing in busing right now. We have that situation before us.

I would further note that the language that I read earlier from the Civil Rights Act of 1964 has been repeated in the Higher Education Act and its amendments right on through 1971. The courts, the Federal court system, have uniformly neglected to observe that language. They do not understand it apparently, or they choose not to understand it.

I think that it has to be changed, and they have to spell out equity and draw jurisdictions.

This bill should further remedy not only the wastage of gasoline and the transportation of students to achieve social policy by judicial decree, but may well prevent further resegregation in existing desegregated districts by eliminating the need felt by some parents to move from the community.

I would note parenthetically here at least in the Pontiac area, the Detroit area, which I am familiar with, open housing has been successful. I think minority groups have made more progress in the last 20 years than it had in the previous century. And this is where the real progress is taking place.

So this bill would seem to also satisfy those who take the view that they will not conserve this fuel in a critical time when school buses are running for social purposes; and they may alter their view upon passage of this bill.

It seems clear to us that national policy in a time of crisis must override far-reaching social planning schemes where reinforced by judicial edict based upon judicial misunderstanding.

I would like to note that Mr. Horn's comments earlier with respect to whether the Congress had the power to do anything about the Supreme Court's views, I think, of course, the Constitution answers that in plain language.

I would also note that in regard to the cases that he cited, that the Supreme Court was in that very year, 1867-68

Senator ERVIN. Pardon me.

There is a vote on the floor. Perhaps I had better go and vote and come back just as soon as I can. I will be back just as soon as I possibly

can.

[A brief recess was taken.]

Senator ERVIN. The committee will resume.

TESTIMONY OF JAMES WELLS, LIBERTY LOBBY-Resumed

Mr. WELLS. Mr. Chairman, I believe I left off at the point that I was attempting to answer Mr. Stephen Horn, U.S. Commission on Civil Rights. He felt that the Court could not be restricted in any way by Congress; or he did not think that the restrictions could go so far as to eliminate jurisdiction where a question of constitutional proportions were involved.

I would, of course, reply to that and respond in this fashion. During the same reconstruction era that he cited, the Supreme Court had its bench reduced by two members by Congress, and as those members resigned or died, the Court was restricted in its membership. At the very same time Congress said we may have to reduce this to a single member Supreme Court, and we have the power to do so.

If there is any question. I think that answers it. Congress has the power. They have exercised it in the past. I would note that right after that, under the doctrine of extension, the U.S. Supreme Court in 1869 in Texas v. White-that is 7 Wallace, page 700-backed away from the issue of declaring the Reconstruction Acts unconstitutional, which was a wise decision on their part. And I think we could expect that the Supreme Court today would not follow the liberal tendency of some of the people that I have heard today, and will follow the same policy.

In conclusion. I would sav on behalf of the Liberty Lobby, it is the combined judgment of Liberty Lobby and the vast majority of citizens as shown in all polls that busing of schoolchildren to create a racial balance has proved to be a punitive act against the best education of children. We believe that the passage of S. 1737 or similar legislation will take care of congressional opposition to a constitutional amendment against busing, and yet fill the legal vacuum needed to stop the useless and unnecessary busing of children away from their neighborhood schools-and against their parents' wishes.

I think if the language I cited in that section 1207 restricting specifically equitable iurisdiction where we sav, "No court of the United States shall have jurisdiction, legal or equitable to make a decision" and so forth, that would perform the necessary changes.

I got the feeling this morning as I listened to the gentleman from the NAACP, as well as the Civil Rights Commission, that almost tongue in cheek they were saying that this bill would perform the job of curtailing the Supreme Court. I do not think that is true. It did not curtail the Supreme Court's powers when they ruled virtually the same language; and the Civil Rights Act did not restrict its equitable jurisdiction.

I think what they are saying is that we have to hold that the equitable jurisdiction is restricted.

I would like to thank you for the opportunity to appear today and to present our views.

Thank you.

Senator ERVIN. As I understand it, you suggest that S. 1737 be amended in section 1207 by inserting after the word "jurisdiction,” "legal or equitable".

Mr. WELLS. Yes, sir.

Senator ERVIN. That is a very good suggestion. My father practiced law in North Carolina for 55 years. He used to say that when you were trying to prove to a judge that a certain animal was a horse, it was best to draw the picture of a horse and then write under it in very big letters, "This is a picture of a horse."

I think that this bill is in perfect harmony with the equal protection clause of the Constitution. As I construe the Brown case, the Brown case decided that it was a violation of that clause to exclude a child from any school on account of the child's race.

S. 1737 would allow every child or the parents of the child to make a choice of the schools their children would attend. There would be no exclusion for anybody from any school on the basis of race.

It would be a unitary school system in that no child would be excluded from any school on account of race. And, it is perfectly in harmony with the Constitution. It only undertakes to restrict the Supreme Court to its constitutional sphere, to keep it from altering the doctrine of the equal protection clause.

Mr. WELLS. It might put them out of the judicial legislation.

Senator ERVIN. I was very much amused by Mr. Horn's invoking the Voting Rights Act of 1965 today, because that act which he strongly supported, had a provision that the States and the counties to which it applied would be condemned on the basis of two certificates made by the Attorney General of the United States and the Bureau of the Census; and that no court in the United States could contest the validity or the accuracy of either one of those certificates. Not only that, it deprived any court of the United States the power to investigate and determine the truth of those certificates. It also enabled the Government to close the door of every courthouse in the United States except one, in the District of Columbia.

Mr. WELLS. I think Mr. Horn represents the way of Federal liberalism that we have seen in the last 40 or 50 years coming upon this Nation. I myself and I believe Liberty Lobby agrees that when reading the Constitution, we have to look at the spirit of it. We have to read it very closely and restrict it, not expand upon the extent that it means, not what it was intended to mean.

Senator ERVIN. One of the greatest things ever said by a Supreme Court Justice, in this regard, was Supreme Court Justice Mar