October 14, 1981 EXTENSIONS OF REMARKS 24031 EXTENSIONS OF REMARKS CRS INTERPRETS HOUSE JOINT origin, i.e. that which is brought about by former discriminatory practices "root and RESOLUTION 56 the intentional actions of school officials branch," 3 and adopt remedial plans that and traditionally condemned by the Equal "promise realistically to work, and promise HON. DON EDWARDS Protection Clause, or defacto and resulting realistically to work now." 4 without the complicity of State or local offi­ In Swann against Board of Education 5 OF CALIFORNIA cials. In addition, the amendment contains the Court defined the scope of judicial au­ IN THE HOUSE OF REPRESENTATIVES no explicit mention of court ordered trans­ thority to enforce school district compliance portation or busing, but speaks simply in Wednesday, October 14, 1981 terms of the "assign[mentl to, or with this constitutional obligation and set exclu[sionl from, any school" for prohibited forth "with more particularity" the ele­ • ·Mr. EDWARDS of California. Mr. ments of an acceptable school desegregation Speaker, the proposed amendment to purposes. Accordingly, while it would seem to clearly preclude the former, it may also plan. In eliminating illegally segregated the Constitution introduced by Mr. extend beyond judicially ordered busing and school systems, the Court emphasized, the MoTTL <H.J. Res. 56) has been promot­ restrict the court's authority to enforce neighborhood school or any other student ed as an antibusing amendment. How­ other more or less traditional "race con­ assignment policy "is not acceptable simply ever, in hearings before the Subcom­ scious" remedies in school desegregation because it appears to be neutral." Rather, in mittee on Civil and Constitutional cases. These may include the rezoning of a system with a prior history of de jure seg­ Rights on the status of school desegre­ school attendance boundaries, new school regation, a constitutionally adequate gation, we are learning that this pro­ construction and the closing of obsolete fa­ remedy may require a "frank-and some­ posal would do far more than bar the cilities, school consolidations, and the like, time drastic-gerrymandering of school dis­ use of this one remedy. In the opinion which do not entail explicit racial classifica­ tricts and attendance zones," resulting in tions, or necessarily increase transportation zones "neither compact nor contiguous, of several witnesses, it would nullify burdens, but do have as their ultimate ob­ the 14th amendment so far as that indeed they may be at opposite ends of the jective the reassignment of students to ame­ city." Accordingly, the lower courts may re­ amendment forbids intentional segre­ liorate racial concentrations in the public quire school officials to implement plans in­ gation of our Nation's public schools. schools. However, because it is framed as a volving " ... gerrymandering of school dis­ The extent to which this proposal limitation upon the powers of the "United tricts . [and] 'pairing', 'clustering', or goes beyond busing is made clear by States" courts, the amendment would not 'grouping' of schools with attendance as­ an analysis prepared by the Congres­ preclude resort by the State courts or edu­ cational officials to desegregation measures signments made deliberately to accomplish sional Research Service of the Library which employ racially based student assign­ the transfer of Negro students out of for­ of Congress. As noted below, a Federal ment techniques. merly Negro schools and transfer of White court, faced with a deliberately segre­ It should also be observed that the reason students to formerly all-Negro schools." 5 gated school system, would be preclud­ for inclusion of the term "religion" as a pro­ The Swann Court also affirmed the limit­ ed from alleviating this segregation by hibited student assignment criterion along ed use of mathematical ratios of white stu­ ordering any remedy that seeks direct­ with those of race or national origin is not dents to black students as a basis for the re­ ly or indirectly to reassign pupils. entirely clear. Whether the sponsores of the medial assignment of students to the Such race-conscious remedies include proposal are aware of any actual problems schools. "Awareness of the racial composi­ many techniques that opponents of in this area, or simply wish to prevent their tion of the whole school system is likely to busing have suggested as alternatives emergence at some time in the future, is be a useful starting point in shaping a beyond present ascertainment. Nonetheless, remedy to correct past constitutional viola­ to busing: Redrawing of attendance since the amendment is not expressly limit­ 7 zones, clustering of schools, magnet tion." ed to public school students, and would thus In a companion to Swann, the Court in schools. Without these options, the include those attending private institutions 8 future of achieving school desegrega­ as well, its adoption could have an effect on McDaniel against Barresi Stressed the im­ tion is indeed hopeless. Federal judicial authority with regard to portance of race related student assignment sectarian schools whose admission criteria techniques in formulating effective reme­ LEGAL ANALYSIS OF HOUSE JOINT RESOLUTION dies for unlawful segregation. In sustaining 56 PROPOSING AN AMENDMENT TO THE U.S. not infrequently include religious back­ ground. a school desegregation plan against allega­ CONSTITUTION REGARDING THE ASSIGNMENT tions that it involved unconstitutional racial OF STUDENTS TO THE PUBLIC SCHOOLS With these considerations in mind, it is necessary in order to more fully evaluate student assignments and busing, the Court On January 5, 1981, Representative Mottl the implication of H.J. Res. 56 to briefly reiterated the remedial standards set forth introduced H.J. Res. 56 which was referred survey the course of Supreme Court deci­ in Green and Swann and found that "[i]n to the Committee on the Judiciary. That sions in school desegregation cases. In this remedial process, steps will almost in­ resolution proposes an amendment to the Brown against Board of Education, 1 the variably require that students be assigned Constitution, to become effective if ratified Court ruled that the Equal Protection 'differently because of their race.' [citation by three-fourths of the State legislatures Clause of the Fourteenth Amendment for­ omitted]. Any other approach would freeze within seven years of passage, which pro­ bade State policies mandating the separa­ vides as follows: "No court of the United the status quo that is the target of all deseg­ tion of students in the public schools on the regation processes." 9 States shall require that any person be as­ basis of race. In striking down State statutes signed to or excluded from, any school on The rulings in Brown, Green, and Swann which required or permitted, by local involved jurisdictions, primarily in the the basis of race, religion, or national option, separated schools for black and origin." white children, the Court declared that the South, that had at one time enforced segre­ Although not expressed in so many words, gation by statute. In Keyes against School "separate but equal" doctrine of Plessy 10 the apparent intent and probable effect of against Ferguson 2 has no place in public District No. 1, Denver, Colo., however, the the constitutional amendment proposed by education. H.J. Res. 56 would be to limit the remedial But the evolution of the Brown doctrine alternatives available to the Federal courts goes further than simply calling for the in school desegregation cases. That is, it repeal of regulations that embody invidious 3 Green v. County Board of Education, 391 U.S. would seem to prohibit the Federal courts 430 (1968). racial criteria. Subsequent decisions made •Alexander v. Holmes County Board, 396 U.S. 19 from enforcing any desegregation plan or clear that State and local authorities who order requiring the transfer or assignment 0969). have committed unlawful practices have an s402 U.S. 1 Cl971l. of students to the schools "on the basis of "affirmative duty" to abolish the effects of s402 U.S. at 27. race, religion, or national origin." For pur­ 1 402 U.S. at 25. poses of the proposed amendment, it is in­ 8 402 U.S. 38 <1971>. · different whether such a plan is directed to I 347 U.S. 483 0954). 9 402 U.S. at 41. the elimination of segregation de jure in 2 163 U.S. 537 0895). 10413 U.S. 189 0973). e This "bullet" symbol identifies statements or insertions which are not spoken by the Member on the floor. 24032 EXTENSIONS OF REMARKS October 14, 1981 Court held that the same affirmative consti­ TO HONOR THE FOUNDING OF its official charter, and to state my tutional obligation pertains to Northern CONGREGATION EMANU EL belief that its members will, in the school districts, without a prior history of years to come, continue to give them­ statutory dual schools, where segregation is HON. JERRY LEWIS selves to all manner of good works, found to be the product of deliberate ac­ which will serve not only as an exam­ tions by school officials. Most recently, the OF CALIFORNIA IN THE HOUSE OF REPRESENTATIVES ple of the faith of Israel, but also as a Supreme Court affirmed this mandate in force of good in our midst.e upholding the appropriateness of system­ Wednesday, October 14, 1981 wide student reassignment and busing plans in the Dayton and Columbus cases which •Mr. LEWIS. Mr. Speaker, 90 years ago a small band of Jewish citizens IMPROVING INTELLIGENCE were found to have been purposely segregat­ ANALYSIS ed in the past. 1 1 gathered together in the city of San In short, the Supreme Court has consist­ Bernardino, Calif., to establish their ently stressed the need for race and ethnic first official house of worship as a HON. LEE H. HAMILTON conscious remedies to desegregate schools living symbol of the power of the free OF INDIANA and has even stated that "it is unlikely that human spirit to reach out and find IN THE HOUSE OF REPRESENTATIVES a truly effective remedy could be deviced God.