tice and moral imperatives, implicit in concepts of equality. The latter must gain in force through an almost infinite number of individual and group actions— often over many generations-before they enjoy wide acceptance as legal imperatives.

The Congress and all of the people whom it represents need a new sense of realism about the proper balance at this stage in our Nation's history between governmental enforcement in redressing discrimination in the schools, and governmental actions in the field of education aimed at overcoming the disadvantages in skills and achievement which tend to reinforce and perpetuate popular prejudicees against minority and social groups.

During 1973 and into this year, Mr. Chairman, we have witnessed several developments which indicate clearly the dangers and limitations of past judicial tendencies toward racial balancing remedies.

The current energy shortages combined with winter daylight saving time underscore the heavy cost and hazards to health and safety involved in large-scale pupil transportation schemes.

Increased interest in moving from suburbs to cities raises the prospect of having to adjust frequently pupil transportation plans which are based on static assumptions of urban-suburban living patterns.

Legal interventions by local minority citizens contrary to the positions advanced by national civil rights groups, as in Atlanta, Ga., suggest that minority groups will show increasing concern with solid improvements in the quality of education as opposed to the mere appearance of change through pupil transfers and unnecessary redistricting.

Finally, Mr. Chairman, in my home city of Omaha many citizens have been engaged for months in constructive efforts to resolve alleged school discrimination issues. There is a widespread consensus that improvements are necessary regardless of the legalities involved. At the same time, Mr. Chairman, past patterns of judicial decisions and the absence of any criteria to guide judicial remedies have intimidated my constituents' efforts. Their work has proceeded in the face of great uncertainties as to what the courts would accept in the way of a locally prepared plan or specify in the way of a judicial remedy. With clear legislative criteria in hand my constituents would be able to spend far less time speculating about the legal hazards and uncertainties and much more time in addressing substantive questions of improved educational quality. I believe that this is exactly the situation frustrating local elected officials and interested citizens in all metropolitan areas of our Nation. The sooner Congress succeeds in providing clear criteria for judicial action, the sooner we can expect sound progress in improving educational opportunities.

Senator ERVIN. Senator Brock is our first witness. I understand he has come in.

Senator, we will be glad to hear from you at this time. I know you have been a staunch opponent of forced busing of schoolchildren merely for creating a racial balance for a long time and have done some fighting on the floor of the Senate in this cause. We are delighted to have you with us.

TESTIMONY OF HON. BILL BROCK, A U.S. SENATOR FROM THE STATE OF TENNESSEE

Senator BROCK. I have, Mr. Chairman.

May I first thank you for your decision to hold these hearings on what I consider to be a major issue and a major problem facing this

Nation today. I don't know whether I need to repeat the litany of abuses that have occurred in your State and mine and in the State of the distinguished Senator from Florida and others, abuses of constitutional rights, in my opinion, of all of our children, black and white alike.

As you know, I have introduced Senate Joint Resolution 14, a constitutional amendment to forbid the assignment of children to a particular school on the basis of race, color, or creed. However, it has become painfully obvious that my amendment faces serious obstacles. At best its passage will require a lengthy period of time, during which the abuse will continue should no other action be forthcoming.

It is the need for more immediate redress of this grievance that causes my appearance before you today. This subcommittee has before it four proposals, each of which attempts to deal with the complex problem of achieving equality of opportunity for all children without the imposition of court-ordered busing.

I am not sure I am competent to select one from among the four that would have the greatest immediate relief effect. Rather I find in each some points of merit that I think must be incorporated in our ultimate process to reestablish the constitutional safeguards so necessary for the protection of our children. For example, as in the case of Senator Allen's bill I think it is important that our ultimate measure retain and enhance the neighborhood school concept. Too, it is important that any bill incorporate a provision maximizing personal freedom for the students, allowing him to transfer to a school in which he is a minority should he see personal justification for such a move. Other proposals would place the question of the equality of opportunity before those who are elected to public office rather then the judiciary. There is no question but what this would make our approach more responsive to the American people. However, I find it difficult to justify a situation which would not have some judicial review and I am not sure that is achievable. Certainly children must have the protection of access to the courts if they are damaged or discriminated against by any political action.

Mr. Chairman, while I cannot come up with a perfect answer to this problem I feel strongly that it is our constitutional responsibility to act. The courts have almost pled with the Congress to establish standards for guaranteeing equal access to educational opportunity for all children, black and white alike; that plea must not be ignored. Busing is wrong. There is no distinction between busing to achieve racial segregation and busing to achieve racial balance. In either instance, we find ourselves far afield from a colorblind application of law. There are ways to safeguard the constitutional rights of our children, to guarantee them equality of opportunity, equality of educational support that must be, and I think it is, the responsibility of the Congress to achieve these goals.

If we can provide our children with good schools in their own neighborhoods where they can learn understanding and brotherhood, rather than hatred bred by coercion, if we can devise a plan which will engender public support rather than jeopardize it, if we can recognize that each child in this country deserves the same treatment and the same opportunity without regard to his race then we will have met that responsibility.

It is now time for the Senate to act, to meet its constitutional mandate.

That concludes my very brief statement, Mr. Chairman. I will be glad to respond to any questions of the committee.

Senator ERVIN. Well, I have always had a great reluctance to alter the jurisdiction of courts. Nevertheless, the Founding Fathers in article 3 gave Congress this means to put an end to judicial tyranny. Senator BROCK. Yes sir; they did.

Senator ERVIN. It sometimes becomes necessary to curtail the jurisdiction of courts where courts manifest a disregard for the plain provisions of the Constitution. Certainly in the McCardle case and in many other cases the Supreme Court itself has sustained the power of the Congress to define the power of the courts.

Now, several years ago Congress passed the Civil Rights Act of 1964, a law defining what is a violation of the Constitution in harmony with the Brown case. Congress determined, in effect, that no school board should take into consideration the matter of race in making assignments of children to public schools. It also expressly determined that desegregation did not include the assignment of children to public schools to overcome racial imbalance.

Senator BROCK. That is right.

Senator ERVIN. Furthermore, Congress declared in another provision that no officer or court of the United States should in any order require transportation of children to overcome racial imbalance or to achieve racial balance. This was a plain declaration by Congress that busing was outlawed for those purposes.

Now, this act was brought into question before the Supreme Court in the Swann case, involving the Charlotte-Mecklenburg School Board in North Carolina. I am very familiar with this case because I filed an amicus curiae brief in that case in the interests of the teachers' association. In that case the Supreme Court came to one of the strangest conclusions that any court anywhere has ever come to. The Chief Justice who wrote the opinion stated directly or by inference 23 times, as I recall it, that the Federal Government had nothing to do with the assignment of children to schools unless there had been racial discrimination by school boards in assignment of students. Having stated that conclusion, the Supreme Court said that when Congress adopted the provision of the Civil Rights Act prohibiting busing that Congress was attempting to regulate, not something it had the power under the Constitution to regulate, but something it had no power under the Constitution to regulate, namely de facto segregation. This statement is an insult to the intelligence of the Congress. The Court's determination that Congress would attempt to legislate in respect to a matter over which it had no power to regulate rather than in respect to a matter over which it did have power to regulate is one of the most remarkable opinions since Dred Scott. The decision of the Court was that it was necessary to bus thousands of children out of northwest Charlotte in order to change the racial complexion of the schools.

In effect, that was a finding of fact that the segregation was largely the result of de facto, residential segregation. The district court judge said that the ultimate objective was to assign children to schools in racial proportions according to their proportion of the whole body politic in Mecklenburg County. The Supreme Court said that if the

judge had ordered a quota system it would have been unconstitutional. Nevertheless, after saying that, the Supreme Court made the statement that to assign children to schools on the basis of the racial proportion of the area affected was a good starting point.

I have stated in my brief, and I think it is absolutely correct, that the decision in the Swann case is contrary to literally hundreds and hundreds of decisions construing the equal protection clause of the 14th amendment to the Constitution. They held in the Brown case, as you know, that it is unconstitutional under the equal protection clause to deny children the right to attend a particular school on account of race. The Supreme Court came full circle by the time it decided the Swann case and held that the Constitution required the assignment of children to schools on the basis of race.

The equal protection clause is one of the simplest provisions in the Constitution. It provides that no State shall deny any person in the jurisdiction of equal protection of the laws. That is a very laudable principle. It means, in effect, that no State shall have one law for one person and another law for another person in like circumstances, or one law for one group of people and another law for another group of people in like circumstances.

The interpretation, until the decision in the Swann case, was that a State was forbidden by the equal protection clause to treat persons similarly situated in a different manner. And yet, the Swann case required the school board to treat persons similarly situated in a different manner in violation of the words of the equal protection clause and in violation of decisions interpreting this clause. It said that the school board must divide the children and determine their assignment to schools in two groups.

The first group of children could be permitted by the school board to attend their neighborhood schools. The second group could not be permitted by the school board to attend their neighborhood schools. That is a clear violation of the equal protection clause because it treated children similarly situated in a different manner. That is a violation of the equal protection clause.

Then, the Supreme Court determined that the reason the school board cannot let the second group of children attend their neighborhood schools is because they must be transported to schools elsewhere either to decrease the number of children of their race in the neighborhood schools or to increase the number of children of their race in schools elsewhere. Oceans and oceans of judicial sophistry cannot wash out the plain fact that this is denying the children who have been attending the neighborhood schools and who are required to be bused admission to schools solely on the basis of their race. This is exactly what the Supreme Court held in the Brown case to be unconstitutional Senator BROCK. That is right.

Senator ERVIN. So I think that I justify denying courts jurisdiction where the courts are manifesting disregard for the Constitution. The Constitution is the only protection the American people have against judicial tyranny.

Senator BROCK. Senator, I resent just as much as you do the gymnastics used to rationalize the process, and I don't disagree with your premise.

One of the things that is interesting to me is the fact that the courts continue to do this even in light of the experiences which showed the

fallacy of their own ways. I know of no busing decision which hasn't resulted in greater segregation than the case before busing was approved. It has engendered white flight, and reduced support of our public school system. They cannot survive without the support of the parents and the teachers and the children. That is why I think it is important that the Congress establish standards to protect these children, black and white alike.

Senator ERVIN. Senator Gurney.

Senator GURNEY. I want to commend the Senator from Tennessee for his statement. I know he has had the same problems in his State as both the Senator from North Carolina and I have had. I am glad to see he has taken an active interest in it.

I want to congratulate him on his comments this morning as well as the very fine arguments.

Just to add one thing, I think it is very interesting that when we had segregation in schools, and everyone agrees that that was the wrong thing to do, those who tried to change segregation were roundly condemning busing because black children were being bused past schools. Now for the same reason these same people have been able to retain their reasoning by saying it is all right to bus children past their same schools in order to attain some political sentiment that is furthering education, and I must say, I can't understand their reasoning at all. Senator BROCK. Neither can I.

Senator ERVIN. Thank you very much.

The next witness is Senator William L. Scott of Virginia. The State of Virginia has also had problems with respect to this matter. The Federal district court judge required the consolidation of the school districts of Richmond and two adjoining counties even though these jurisdictions were established long before anybody ever heard of the equal protection clause and before this country was unhappily set asunder by the Civil War. These county lines and city lines were drawn many years ago without regard to residential separation of the races. Fortunately, the circuit court of appeals reversed the district court and the Supreme Court did not overrule the circuit court.

TESTIMONY OF HON. WILLIAM L. SCOTT, A U.S. SENATOR FROM THE COMMONWEALTH OF VIRGINIA

Senator SCOTT. After listening to the comments of the chairman, my remarks may be superfluous, but let me commend you for holding these hearings. In my opinion, the busing of children to attain a racial balance continues to concern people throughout the country, and the energy crisis has added a new ingredient.

In a poll I took within my former congressional district of Virginia a few years ago we asked the question: "Do you favor busing of schoolchildren to obtain racial balance under any circumstances?" This was sent to every home in the district, the largest district in Virginia, in March of 1972, and of the more than 50,000 families who responded, only 7 percent favored busing, 91 percent indicated their opposition, and 2 percent expressed no opinion. The results of all polls in recent years indicate that the people from all parts of the country are overwhelmingly opposed to racial busing. A Lou Harris poll conducted nationwide in 1972 disclosed that 73 percent of the parents polled op