shall when he was trying to be persuaded that a statute was inconsistent with the Constitution. He said the reason that the oath of office was placed in the Constitution was so that the judges would accept the Constitution as a rule or the guide for the Government of their official actions.

I want to commend the Liberty Lobby as I have observed it in the 20 years I have been in Congress. It has been faithful to the concept of the Constitution and also to the concept that the Constitution is designed to give the American people just as much liberty as they can exercise without hurting others. And I think that this is what is at stake in this matter.

I also infer that you have another thing in common with me; that is, I do not like judicial activists-whether they are judicial activists on one hand that stretch the Constitution far beyond its true meaning, or those who on the other hand interpret the Constitution so that it is restrictive far beyond what its true meaning is.

Mr. WELLS. Thank you very much.

Senator ERVIN. Thank you for a very fine statement.

Our next witness is Mr. Charles Morgan, Jr., who speaks for the American Civil Liberties Union.

TESTIMONY OF CHARLES MORGAN, JR., AMERICAN CIVIL
LIBERTIES UNION

Mr. MORGAN. Senator, our testimony has been previously provided to you; and I trust that it can be included in the record without my reading it.

Senator ERVIN. It will be included in the record.

[The prepared statement of Charles Morgan, Jr., follows:]

PREPARED STATEMENT OF CHARLES MORGAN, JR., DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION

Mr. Chairman and members of the Committee, thank you for the opportunity to testify here today. Before moving to my present job here in Washington about 14-months ago, I spent eight years directing the Southern Regional Office of the American Civil Liberties Union, now an organization of 275,000 members. There I was engaged in the trial and appeal of civil liberties and civil rights cases throughout the South.

From 1955 to 1963, I practiced law privately in Birmingham, Alabama. I am a graduate of the public schools of Birmingham, the University of Alabama, and the University of Alabama School of Law.

I appear here today on behalf of the ACLU to express our opposition to the proposals being considered in these hearings.

Mr. Chairman, it was almost two years ago that this Congress was considering a number of proposals similar to those before you today. Chief among them was the so-called "Equal Educational Opportunities Act of 1972," sponsored by the Nixon Administration.

In frequent appearances before many committees, ACLU representatives urged the Congress to reject those proposals. We did so for a wide variety of reasons— all of which I believe have been proven valid by the test of time-but among those many reasons there was always one consistent, underlying theme.

That theme was then, and remains now that all of the proposals now before you will have one effect: namely, they will result in the undermining of the authority, the integrity and the independence of federal courts under the Equality Amendments, and with them, the general public respect for law and order.

I can think of no committee, and Mr. Chairman, I can think of no individual Senator, in whom the American people place more faith when it comes to the Bill of Rights.

Indeed, if I may make a brief personal reference, I would like to say just one word as a Southerner. I think the people of the South believe, perhaps even more strongly than those from anywhere else, in the concept of law and order. I think the South has shown this in the peaceful way in which the overwhelming majority of white Southerners have acknowledged the rule of law, and the decisions of courts, regarding desegregation and the right to equal protection of the laws.

For the Congress now to enact legislation to undermine those principles-legislation which would say, in effect, "never mind those changes so recently made"would be tragic. It would be a betrayal of those thousands of Americans who, often at great personal risk, placed themselves squarely on the side of the law in the twenty years since 1954.

Yet the four bills under consideration would do just that.

We see one bill, for example, S. 287, which would actually remove all public schools cases from the jurisdiction of the federal courts. That is so extreme, I think we need not discuss it here.

Another bill, S. 179, simply says no federal court may require that any pupils be transported to or from school on the basis of their race, color, religion or national origin. Again, we see the goal of undermining the ability of the courts to redress a denial of constitutional rights, even though that denial has been established by a thorough, fair and impartial hearing in a court of law.

Another bill, S. 619, stresses pupil assignment on a neighborhood basis. At first glance, but only at first glance, this concept of the "neighborhood school" sounds innocent enough. It even sounds appealing, conjuring up as it does the images of some of our childhoods-of laughing children skipping through falling leaves, or crossing a grassy field to a nearby school.

The trouble is that many parts of America-by choice-gave up the neighborhood school decades ago. They chose the consolidated school for its better educational facilities, and the bus as the only way to get there.

The other trouble is that in many other parts of America-mainly urban America-neighborhood schools mean segregated schools. They mean segregated schools because of the realities of continuing racial discrimination in jobs and housing, which means segregated neighborhoods.

And the fact is, Mr. Chairman, and we all know this, as a central truth: "white folks ain't going to pay for schools where white children don't go." So when certain schools are all-white, and others are all-black, more tax money, more books and more facilities just somehow always find their way to the white schools than to the black.

Nothing supports the assumption of Brown v. Board of Education, 347 U.S. 483 (1954)—that slum schools cannot be equalized-more than the reasoning and evidence of pre-Brown teacher pay, graduate and law school and undergraduate school decisions including Sweatt v. Painter, 339 U.S. 629 (1950) [the Texas Law School case]—and more obviously the millions of uneducated black men and women in the North's urban ghettoes, sixty per cent of whom were born and reared below the Mason and Dixon Line.

Conversely, after desegregation, those same monies and equal school benefits suddenly begin finding their way into all schools on a fair and equal basis. As a black parent from North Carolina put it in a letter to the Washington Post two years ago: "Within one month (after desegregation), the parents of the white children who were being bused managed to get the black school painted, repairs made, new electric typewriters and sewing machines, and the shelves filled with books."

Again recalling my own Southern experience, I know how recently the concept of "neighborhood schools" suddenly wrought such concern. It usually coincided with the time when desegregation was at hand. Neighborhood schools were not always sanctified, in fact, by school systems as recently as the late 1960's where black children were bused as far as 60 or 80 round-trip miles to keep them out of their neighborhood, but white, schools.

One of these bills, S. 619, also cites "serious risks to the health and safety of students" and "risks and harms" supposedly created by busing.

Yet figures from the National Safety Council establish that school busing is actually the safest form of transportation in America—and that includes walking to school. ["Your Child and Busing," U. S. Commission on Civil Rights, May 1972, page 13.] Indeed, in some urban centers at peak traffic hours, walking may be the least safe way for children to go to school.

As for "risks and harms," I assume the bill's authors are referring to some alleged psychological damage caused by riding on a bus.

The only truly scientific study on this subject was by one of the nation's most noted child psychologists, Dr. Robert Coles. Dr. Coles rode buses with school children as they traveled to and from newly integrated schools. Based on more than one year's study, he said:

"I never saw children get sick because they were being bused; I never saw children become emotionally disturbed because they were bused; I never saw children's school work suffer because they were bused. Physically, psychologically, educationally, the experience of busing was, in fact, neutral. [Dr. Robert Coles, testimony to the Senate Subcommittee on Education, April 6, 1972.]”

A fourth bill before this committee, S. 1737, refers to "freedom of choice." Like the phrase "neighborhood schools," "freedom of choice" sounded innocuous enough at first hearing.

The problem is, experience has shown that freedom of choice, where tried, was not free. Many ways were found to intimidate and thereby inhibit black children who sought to exercise that freedom, until many of them gave up. Schools remained segregated in fact, if not in name, and the Equality Amendments, along, of course, with black and white children and their chances for a better life through better education, were the victims.

Each of these bills, then, as with all other attempts to draft anti-busing bills, relies on denying our courts the power to enforce the Equality Amendments. That is reason enough to reject any and all such proposals. But there are other reasons, and I would like to summarize them briefly.

First, these proposals are anachronisms, for the fact is that school desegregation is no longer a major public issue. With the exception of local problem areas whose difficulties should be worked out locally and in accordance with the law, there is simply no public demand for anti-busing legislation. A national law passed to meet an isolated problem might create far more severe problems in a dozen other locales.

Americans are law-abiding people. Two years ago, we quoted many youngsters from many schools, north and south, who said they could get along fine with one another, and their schools could operate peacefully, if adults would just leave them alone and quit stirring up trouble.

We believe the evidence shows that this has happened. Trouble has not been stirred and Americans have again proved law-abiding. They have reached peaceful accords with conscience and the Constitution.

Studies of school desegregation have demonstrated over and over that when citizens of good will made up their minds in advance that they would obey the law and plan their schools accordingly, desegregation took place peacefully.

Where disturbances occurred, they were invariably the result of groups of adults picketing, blockading, shouting obscenities at each other and at little children, even throwing rocks or burning buses. When the adult protests ended. so did disturbances among the youngsters.

The point is, our schools are desegregating peacefully. If there is an isolated case of a badly drawn desegregation plan, the solution is not to upend the law and reverse the gains that have been made (as could be done with the re-opener clause contained in one of the proposed bills, S. 619). The solution to those problems is certainly not new national legislation. The solution for isolated cases is simply the drawing of new and better, if isolated, plans.

Whether politically disastrous or not, two effects of enactment of these proposals will be the stiffening of opposition to desegregation and a simultaneous weakening of the resolve of courts to effect the mandates of the thirteenth, fourteenth and fifteenth amendments.

One effect these proposals definitely will not have is to diminish the desegregation "burden" borne by the white working class. The elimination of busing will not prevent the use of pairing and other desegregation techniques. Buses will continue to transport white and black children to the consolidated schools of the rural south. In southern urban areas those who reside nearest each other-the white and black working class-will be desegregated. Only the white upper middle class children will be sheltered from desegration and further locked into a Brahmin caste school system which will continue their uneducation in unreal seclusion from the very real world they will soon face.

The other reasons for rejecting these proposed bills go to the myths about desegregation and busing itself. I would like to summarize them briefly.

First, busing is not being ordered by the courts in any wholesale or haphazard way. It is ordered only when it is the only remedy for the redress of constitutional deprivations.

Second, busing is not used to achieve "racial balance," as so many detractors claim. The courts, in fact, have specifically forbidden busing for racial balance. The Supreme Court stated in Swann v. Charlotte-Mecklenburg Board of Education 402 U.S. 1 (1971), that "the use of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement.'

Third, busing for desegregation is certainly not "massive," although that word is constantly used by backers of the type of legislation now before this committee. In fact, of the more than 20 million school children who ride school buses, less than three-percent ride them due to court orders. [Testimony of Elliott Richardson, Secretary of Health, Education, and Welfare, before Senate Subcommittee on Education, March 24, 1972,]

In other words, if all court-ordered busing were halted today, 97% of all youngsters who ride school buses today would still be riding them tomorrow. I think that fact alone should be enough to demonstrate the needlessness of the legislation proposed here today.

Fourth, anti-busing advocates contend that some rides are too long and schedules disruptive. In fact, rides are shorter in many places since desegregation than they were before. And in the few places where schedules are a serious burden on parents, the need is for better planning, and modified desegregation plans, not national legislation,

Fifth, some have implied that court-ordered busing is bankrupting school systems. The fact is that the percentage of education money spent on school transportation is virtually the same (3.6%) as it was 40 years ago (3.5%). [“Your Child and Busing," U.S. Commission on Civil Rights, May 1972.]

In sum, school busing is nothing new. We have been busing school children for about 60 years. Busing only came under attack when used as one device to bring about school desegregation and equal protection of the law.

In view of the Congress's often-stated determination to afford all Americans their full rights under the Constitution, and in view of the fact that all these bills would undermine the ability of our courts to insure those rights, I respectfully urge this committee to reject the proposals being considered today.

I believe this is especially urgent because of the damaging impact these bills would have on our system of law. At a time when this committee is so uniquely charged with the responsibility for protecting civil liberties, rights endangered now more than ever, and a time when this body may soon be called upon to make a decision fundamental to the very future of the rule of law in our society, we respectfully urge that you set aside these proposals of the past and move instead with our children into a future where freedom is the promise of equal education. Thank you very much.

Mr. MORGAN. I have been here a brief while, and I have heard some of the previous testimony. The cases which indicated freedom of choice might be constitutional-the Green case and its companion-assumed that "freedom of choice," would be a phrase which contained the promise of constitutional equal protection. And it seems to me any legislation to effect that free choice would have to have within it sanctions to make absolutely certain in the light of our history for the last 20 years that the choice was in fact free.

For example, I notice in the bills before you, and more particularly Senate 1737, no criminal provisions to make certain that any person who interfered with or placed any pressure on the free choice of any citizen of the United States or a child of any citizen, be it economic pressure, or that of State or local government, or otherwise pressured by force or violence or the threat of force or violence, suffered criminal sanctions.

Second, I see in the freedom of choice bill, which relates to teachers as well as students, no provision that would provide for equal employment guarantees for the teachers.

I also find in that bill no provision for the abolition of disparate property taxes. I believe that there might be a more free choice if property taxes nationally were equalized. The ACLU has no position on that aspect of the bill. But I think that is something that might be pertinent to making certain that people actually had a free choice.

You mentioned a moment ago a discussion of judicial activists; and I frankly have never thought of the courts as having lifetime Federal job purpose other than the defense of the constitutional rights of individual citizens or groups of citizens who might be in fact discriminated against or put upon by Government or others.

In the particular instance that we are dealing with, of course the Swann case-which came out of Charlotte, N.C., and its companion case out of Mobile, Ala., the opinions as I recall it were written by Chief Justice Burger.

This administration, went into office under what was generally termed a southern strategy in its desegregation program. Yet Chief Justice Burger is the author of the prime opinion in the major case authorizing school busing as a partial remedy for school desegregation.

Third, with respect to the Voting Rights Act of 1965, which you mentioned a moment ago, I recall the case name-Gaston, I believe, a North Carolina case, where a very conservative justice discussed the right to vote. And the thrust of his opinion was that when people had been deprived of an equal education by the State, that State could thereafter not impose a literacy test or a literacy requirement on their right to vote.

I believe personally and deeply that that relates to the major question we have here.

I notice that from the last witness, there was a reference to McCardle and Milligan. I have read them previously but not while I have been here. I did read the Constitution a moment ago-the appropriate provisions.

If the courts are statutorily limited in their jurisdiction with reference to past cases effecting remedies, for constitutional wrongs, I think that the limiting statutes would be in effect ex post facto laws. If the courts could be limited in their jurisdiction in the future, the lower courts, I wonder if we would not merely take all the school desegregation cases and put them into the Supreme Court of the United States as actions against States.

Senator ERVIN. That would be better than what is being done.

Mr. MORGAN. Under that circumstance I think that we would go back to another case that I read recently, the Shipp case, which was a contempt case involving the sheriff in Chattanooga, Tenn., who allowed a black prisoner to be strung up. And in that case the Supreme Court appointed an examiner, or a referee, or a special master, if I recall correctly, to hear the facts and evidence. The Supreme Court is trying to divest itself of jurisdiction in certain fields. But under these circumstances, a Supreme Court of the United States, consisting of 9 people, or 1 or 10 or however many justices, could develop into the largest single school board in the United States of America; and could appoint masters to handle all the schools in the United States.

Senator ERVIN. They are doing that now through the district judges. Mr. MORGAN. Let us talk about the district judges just a moment, Senator.