predominantly black schools along another part. The predominantly white schools are over four miles from the predominantly black schools, but the transportation on the expressway would take less than fifteen minutes. Desegregation could also be accomplished by transporting students from each set of schools to a third set of racially mixed schools, some of whose students would then have to be bused back to the schools at both ends of the expressway because of problems of capacity. The third set is not on any expressway. The latter plan would require the transportation of more students over a shorter distance (three miles), The trip would take 45 minutes each way, however, because of ordinary traffic. S. 619 would prohibit a Federal court from ordering the first desegregation plan requiring a 15-minute bus ride, but would allow it to order the second plan requiring a 45-minute bus ride, since the third set of schools are the "next closest to his place of residence.” In such circumstances, which may exist in any school district with an expressway, S. 619 may result in increasing both the number of students being transported and the time required by the transportation.

8. School Districts K and L were formerly officially segregated. They are identical in every respect, and both have been sued in Federal court after the passage of S. 619. To be desegregated, both require a level of student transportation forbidden by S. 619. The school board of District K goes into court and states that it does not want to resist anyone's constitutional rights and will voluntarily do what the Court thinks best. S. 619 allows the court to order the necessary relief. The school board of District L goes into court and announces that it believes segregation to be morally right and will never obey any court order requiring desegregation. Sec. 205 of S. 619 would prohibit the court from ordering the necessary relief, would authorize the continuance of its segregation, and would thereby reward the school board of District L for its contumacy. 5. Examples of S. 1737 in Operation

S. 1737 enshrines freedom-of-choice as a plan of student assignment and withdraws the jurisdiction of Federal courts over a number of areas of discrimination. Under it:

1. Rural School District M has two schools a block apart, one attended by whites and a handful of blacks, and the other attended only by blacks. It is similar to the school district involved in Green v. County School Board of New Kent County, Virginia, 391 U.S. 430 (1968). Whites in the county have threatened blacks with loss of their jobs and other economic reprisals if they choose to send their children to the white school. The county newspaper has a well-known policy of publishing the names of all black parents who choose to send their children to the white school.3 The Federal court finds that fear of reprisals will make it impossible ever to desegregate these schools under a freedom-of-choice plan, and further finds that total desegregation could be brought about by a simple "pairing" plan that would not require any change whatsoever in the existing transportation. S. 1737 would prohibit the Federal court from ordering this remedy. 2. School District N adopts a policy whereby it will only enter into contracts with white teachers for teaching at predominantly-white schools, and will only enter into contracts with black teachers for teaching at predominantly-black schools. S. 1737 would prohibit the Federal court from enjoining this segregation of faculty members.

3. Small-town School District O operates a rundown school, without indoor plumbing, for black students. It could not be put into good repair without prohibitive expense, and no white students would accept a transfer there. To avoid such a transfer, their parents would start a private segregated academy in the basement of the local church. There is adequate space for all of the black students in a brand new, predominantly-white school within walking distance. The existing student assignment system is based on geographic attendance areas which have been racially gerrymandered. S. 1737 would prohibit the Federal court from ordering the closing of the inferior black school and the transfer of its students to the predominantly-white school.

4. Metropolitan School District P has been sued after the passage of S. 1737 in an effort to desegregate its schools. The Federal court agrees with the educational experts of both the school board and the plaintiffs that the most effective desegregation plan would require only the "pairing" of various schools and would cause only a 5% increase in transportation. The school board advises

3 Such practices were common, and the fear of such practices deterred many black families from sending their children to the "white" schools. U.S. Commission on Civil Rights. Southern School Desegregation, 1966-1967 (1967). See the Commission's Findings, at pp. 87-88.

the court that a freedom-of-choice plan would result in substantial numbers of students changing schools simply because of the relative prestige of the schools' athletic teams, the availability of certain extracurricular activities, and other reasons having nothing to do with either education or desegregation. The school board estimates that its transportation costs might triple under a freedomof-choice plan that might not even result in desegregation. In addition, it will cost the school district over $20,000 to sort out, by computer, all the first, second and third choices of the more than 35,000 students in the school system. It has not been able to estimate the costs of getting each child's records to the appropriate schools. The school board urges the court to accept the experts' plan, since it would be an inexpensive one-time adjustment. A group of white parents move to intervene in the case, praying that S. 1737 be enforced. If enforced, it would forbid the court from ordering the school-pairing plan, and require approval of the freedom-of-choice plan.

6. Examples of S. 2555 in Operation

S. 2555 would enshrine a neighborhood school policy as immune from challenge, and would prohibit a Federal court from requiring "the assignment or transportation of students or teachers . . . in order to carry out a plan of racial desegregation . . . except on the express written voluntary request" of local school officials. Its operation would be similar to the operation of S. 179, S. 619 and S. 1737, but in a harsher form. Section 4 of S. 2555 would not even authorize a Federal court to order a school board to obey its own freedom-of-choice plan, in the event that some blacks chose to go to a white school under the plan. S. 2555 is unique, among these proposals, for its failure to attempt to restrict the powers of Federal courts to enforce 14th Amendment rights on their own. It applies only to Federal statutes "providing for an applicable educational program."

7. These Proposals Are Unconstitutionally Overbroad1

Since these proposals affect fundamental rights, the constitutional standard by which they must be judged is that enunciated in Bates v. City of Little Rock, 361 U.S. 516, 525 (1960):

"But governmental action does not automatically become reasonably related to the achievement of a legitimate and substantial governmental purpose by mere assertion in the preamble of an ordinance. When it is shown that state action threatens significantly to impinge upon constitutionally protected freedom it becomes the duty of this Court to determine whether the action bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification."

And again, in Shelton v. Tucker, 364 U.S. 479, 488 (1960) (footnotes omitted):

"In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, the purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose."

In N.A.A.C.P. v. Button, 371 U.S. 415, 438 (1963), the Court stated: "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms."

And yet again, in United States v. Robel, 389 U.S. 258, 265 (1967): "When Congress' exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our 'delicate and difficult task' to determine whether the resulting restriction on freedom can be tolerated."

There, the statute was invalid because Congress could have used "less drastic" means of achieving a valid legislative goal. 389 U.S. at 268. Similarly, in Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349, 354 (1951), the Court struck down an overbroad milk inspection ordinance, since "reasonable alternatives", having a lesser impact on interstate commerce, were available.

Under these standards, the proposed bills could not possibly survive constitutional scrutiny. There is little room for doubt that they fall fatally short of "the exacting standard of precision we require of statutes affecting constitutional rights". Dunn v. Blumstein, 405 U.S. 330, 360 (1972). While purporting to be aimed at "excessive" or "harmful" levels of busing or at "overly disruptive"

4 This overbreadth analysis applies to S. 179, S. 619 and S. 1737, but not to S. 287 or S. 2555.

methods of desegregation, they make no serious effort to deal with such limited evils. Instead, their blunderbuss approach serves their real-as opposed to stated-purpose, which is the barring, in most cases, of all meaningful desegregation, even to the extent of effectively barring an individual's voluntary majority-to-minority transfer. As such, they stand on no better constitutional footing than the "massive resistance" legislation passed by some States in bygone years.

D. PROVIDING AN AUTOMATIC STAY OF COURT ORDERS PENDING EXHAUSTION OF ALL APPEALS VIOLATES THE CONSTITUTION

Section 2(c) of S. 179 would postpone the effectiveness of any Federal court order which has the effect of requiring student transportation for the purpose of desegregation. This provision would apply whether the grounds for the appeal were frivolous or meritorious, and would apply equally to cases in which the transportation involved is on a minor level and to cases in which much greater levels of transportation would result. It would apply equally to cases in which no other form of relief would be effective, and to cases where alternative forms of relief, not resulting in transportation, are available. Its one constant feature is that it could delay the implementation of a desegregation order for a year

or more.

Such a broad measure obviously has the same problems of unconstitutional overbreadth that are discussed above. It also violates the Supreme Court's express command that there be no further delay in the dismantling of dual school systems. As early as 1964, the Supreme Court announced that the period in which the right to a desegregated education could be suspended had come to an end:

"The time for mere 'deliberate speed' has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia.”

Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 234 (1964). The Court reiterated this point the next year. In Bradley v. School Board of the City of Richmond, 382 U.S. 103, 105 (1965), it stated, "Delays in desegregating school systems are no longer tolerable." Three years later, the Supreme Court again held that these rights could no longer be suspended: "The burden on a school board today is to come forward with a plan that promises to work, and promises realistically to work now." Green v. County School Board of New Kent County, 391 U.S. 430, 439 (1968).

In October, 1969, the Supreme Court again held that the constitutional right to an integrated education could no longer be delayed, but had to be enforced fully and immediately:

"The question presented is one of paramount importance, involving as it does the denial of fundamental rights to many thousands of school children who are presently attending Mississippi schools under segregated conditions contrary to the applicable decisions of this Court. Against this background the Court of Appeals should have denied all motions for additional time because continued operation of segregated schools under a standard of allowing "all deliberate speed" for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools."

Alexander v. Holmes County Board of Education, 396 U.S. 19, 20 (1969). A month and three days later, the Fifth Circuit Court of Appeals authorized a onesemester delay in the full integration of the student body in a number of school districts, although it ordered the complete and immediate integration of faculty, staff, etc. Singleton v. Jackson Municipal Separate School District, 419 F. 2d 1211 (1969). Under the name of Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970), the Supreme Court reversed the Singleton decision six weeks after it was entered. Justices Harlan and White, in a concurring opinion, stated that they understood Alexander to require that, upon a prima facie showing of continued segregation, ". . . plaintiffs may apply for immediate relief that will at once extirpate any lingering vestiges of a constitutionally prohibited dual school system.

"Alexander makes clear that any order so approved should thereafter be implemented in the minimum time necessary for accomplishing whatever physical steps are required to permit transfers of students and personnel or other changes that may be necessary to effectuate the required relief."

396 U.S. at 292, 293. Referring to two other cases, Justices Harlan and White continued: this would lead to the conclusion that in no event should the time from the finding of noncompliance with the requirements of the Green case to the time of the actual operative effect of the relief, including the time for judicial approval and review, exceed a period of approximately eight weeks. This, I think, is indeed the "maximum" timetable established by the Court today for cases of this kind."

396 U.S. at 2933. Justices Black, Douglas, Brennan and Marshall expressly disagreed with the conclusion of Justices Harlan and White that an eight weeks' delay in full integration would be permissible: ". . . those views retreat from our holding in Alexander v. Holmes County Board of Education, 396 U.S., at 20, 90 S.Ct., at 29, that 'the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.'" A blanket authorization of further delay, unrelated to any question of need for such delay, is in clear conflict with the last ten years of the Court's controlling constitutional decisions.

E. REQUIRING PROOF OF ACTUAL DISCRIMINATORY MOTIVATION FOR VARIOUS ACTS BEFORE THEIR RACIALLY DISPARATE EFFECTS CAN BE REMEDIED IS UNCONSTITUTIONAL RECAUSE IT IS FUNCTIONALLY THE SAME AS IMMUNIZING SUCH ACTS FROM JUDICIAL REVIEW

Section 101 of S. 619 provides that a neighborhood school policy "is not a denial of equal protection of the laws unless such assignment is made for the purpose of segregating students on the basis of race, color, sex, or national origin." Section 204 of S. 619 provides that school district boundaries "shall not be ignored or altered except where it is established that the lines were drawn for the purpose of segregating children among public schools on the basis of race, color, sex, or national origin." Section 3 of S. 2555 provides that nothing in any statute providing for an applicable educational program shall be construed as requiring any school district "which assigns students to schools on the basis of geographic attendance areas drawn on a racially nondiscriminatory basis to adopt any other method of student assignment."

These proposals capitalize upon the difficulty of proving an actual racially discriminatory motivation for a given act. The impossibility of proving an actual intent to discriminate, it must be remembered, is what led Congress to enact § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1937c, requiring covered States and subdivisions to submit changes in voting qualifications, practices and laws to the Attorney General for approval before being placed in effect. See South Carolina v. Katzenbach, 383 U.S. 301, 328, 335 (1966). Court after court has recognized the difficulty of proving that an employer had a specific racially discriminatory motivation when it instituted an educational requirement, testing system, seniority system or other practice that seriously disadvantaged blacks or females, and have held that proof of such a specific intent to discriminate is not essential to establish a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. It is sufficient to establish that a given practice substantially disadvantages minorities, and that it is not required by business necessity. E.g., Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). "Courts have often observed that proof of racial discrimination in employment is seldom direct." Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1382 (4th Cir., 1972), cert. den., 409 U.S. 982 (1972).

Here, the seeming intent of these provisions is to divide into two classifications all cases in which such State or school district practices have a strongly segregative effect. Relief would be restricted to those few cases in which specific illegal intent can be shown or inferred. In the vast majority of such cases where there will be, for example, no school board minutes discussing the racial reasons for adopting a particular set of attendance zone boundaries, relief would be denied. Even if it could be shown that the particular decisions in question are clumsier and costlier than alternative arrangements which are sounder educationally and have a substantially lesser segregative impact, relief would be denied. Because of the difficulties of proof, the effect of these provisions would be to immunize from judicial redress the majority of even those practices adopted for the purpose of discrimination.

Since these provisions would affect the enjoyment of fundamental rights, it is clear that such a classification would violate the Constitution unless it served a "compelling" governmental interest. E.g., Bates v. City of Little Rock, 361 U.S. 516, 524 (1960). Where the segregative impact is the same in both situations, and where the specific practice in question cannot be shown to serve some educational necessity that would not be served by a less segregative practice, a classification based upon the presence or absence of a showing of specific discriminatory intent would flunk the "reasonable relationship" test, let alone the "compelling interest" test. Accordingly, these proposals violate the Constitution.

F. PROVISIONS WHICH DIRECTLY OR INDIRECTLY MAKE THE AVAILABILITY OF ESSENTIAL TYPES OF RELIEF TURN UPON THE VOLUNTARY ACTS OF A SCHOOL DISTRICT VIOLATE THE CONSTITUTION BY CONDITIONING FUNDAMENTAL RIGHTS ON PURELY ARBITRARY DECISIONS OF LOCAL OFFICIALS

Section 205 of S. 619 provides that a school district may propose, adopt, require or implement a school desegregation plan incorporating forms of relief which S. 619 forbids a Federal court to order, and further provides that a Federal court may approve such relief if "voluntarily proposed" by the school district. Section 4 of S. 2555 allows the assignment of students or teachers pursuant to a desegregation plan only on the "express written voluntary request" of school officials." While S. 179 and S. 1737 do not in terms state an exception for such voluntary obedience to the Constitution, they limit only the actions of Federal courts and agencies. As a practical matter, they too allow school districts to obey the Constitution voluntarily.

For the purposes of constitutional analysis, each of these bills stands on the same footing. Each thus runs afoul of perhaps the two most frequently enforced constitutional principles: that legislative classifications affecting fundamental rights serve some compelling interest, Bates v. City of Little Rock, 361 U.S. 516, 524 (1960), and that the enjoyment of constitutional rights cannot be made to turn upon arbitrary decisions.

These proposals seek to divide all black school children into two classes: those attending school in school districts which wish to obey the Constitution, and those attending school in districts that prefer to continue each of the remaining vestiges of discrimination, the elimination of which would require some relief proscribed to a Federal court. The consequence of what district a black child attends is severe: in the first, he will obtain full and immediate enjoyment of his constitutional rights; in the second, his rights will be suspended for a year or, perhaps, be lost altogether.

The only difference that accounts for such a total disparity in the enjoyment of a constitutional right is the choice of the school board. None of these bills establishes any standards for a school board to follow in deciding how to exercise its choice: a decision based upon whim or caprice, or based upon the sentiment that black children are inherently inferior, is fully acceptable under each of these bills. The children in both types of school systems are equally entitled to redress, and any legislative scheme that conditions the enjoyment of constitutional rights on so unprincipled a pivot must fall. The language of the Court in Yick Wo v. Hopkins, 118 U.S. 356, 366-67 (1886) is telling. The ordinances in question, said the Court, seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of

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5 Cf. Dunn v. Blumstein, supra, 405 U.S. at 343: "In pursuing [an important state] interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with 'precision'. . and must be tailored' to serve their legitimate objectives.

And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all it must choose 'less drastic means.'" (Citations omitted.)

6 A prohibition of a school district's voluntary actions to desegregate would have been even more glaringly unconstitutional. See North Carolina State Board of Education v. Swann, supra, 402 U.S. at 45: "However, if a state-imposed limitation on a school authority's discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall: state poliev must give way when it operates to hinder vindication of federal constitutional guarantees." 7This is especially true where, as here, the legislation gives local school districts the option to maintain their classification of students based on race. A long line of Supreme Court decisions have held such classifications to be inherently "constitutionally suspect". and subject to the "most rigid scrutiny". E.g., McLaughlin v. Florida, 379 U.S. 184, 192 (1964) Bolling v. Sharpe, 347 U.S. 497 (1954); Korematsu v. United States, 323 U.S. 214, 216 (1944); Anderson v. Martin, 375 U.S. 399 (1964); Watson v. City of Memphis, 373 U.S. 526 (1963).