UNITED STATES OF AMERICA (iongrrssional1Rccord

d PROCEEDINGS AND DEBATES OF THE 93 CONGRESS SECOND SESSION

VOLUME 120-PART 11

MAY 9, 1974 TO MAY 16, 1974 (PAGES 13865 TO 15260)

UNITED STATES GOVERNMENT PRINTING OFPICBt WASHINGTON, 1974 May 15,1974 CONGRESSIONAL RECORD-SENATE 14849 for research and development, construc­ 5 o'clock. I do not know that Senators Mr. GURNEY. May we now have the tion of facilities, and research and pro­ are informed of that. That is point No. 1. presentation of the request? gram management, and for other pur­ Point No. 2 is the issue of time which is Mr. ROBERT C. BYRD. Mr. President. poses; asked a conference with the Sen­ involved. I would like also to propound a I ask unanimous consent that at 3 p.m. ate on the disagreeing votes of the two parliamentary inquiry: Is the Bayh today, the distinguished Senator from Houses thereon,and that Mr. TEAGUE, Mr. amendment amendable? Indiana (Mr. BAYH) be recognized to call HECHLER of West Virginia, Mr. FUQuA, The PRESIDING OFFICER. It is not up his amendment. Mr. SYlI.IINGTON, Mr. MOSHER, Mr. BELL, amendable because that would be an . Mr. JAVITS. Mr. President, I reserve and Mr. WYDLER were appointed man­ amendment in the second degree. the right to object, and I suggest that agers on the part of the House at the Mr. JAVITS. So that the Bayh amend­ it be 3:15, as we have a speaker who conference. ment is final as it is now. I have no desire will speak from 1:15 to 3, whom we have to interfere with any operations of my committed. We should have a few min­ colleagues, but how do we figure this out? utes thereafter to make some comment EDUCATION AMENDMENTS OF 1974 The vote was 'supposed to begin at 5 on what he says. This is all on perfectly o'clock and now we have a vote on the proper time. I have a reason for suggest­ . The Senate continued with the con­ Bayh amendment at 3:45. ing it. I have stated my reason. Senator sideration of the bilI (S. 1539) to amend Mr. ROBERT C. BYRD. The Senator BROOKE is committed to speak at 1: 15, and extend certain acts, relating to ele­ from New York is not correct, and I say and we have agreed to give him until 3. mentary and secondary education pro­ that most respectfully-when he says Mr. PELL. I must add that we also grams, and for other purposes. that votes were to start at 5 o'clock. have 10 minutes for the Senator from Mr. ROBERT C. BYRD. Mr. PresideIlt, Mr. JAVITS. I am willing to be cor­ Minnesota. I ask unanimous consent-and this has rected. Mr. ROBERT C.BYRD. It is much been discussed with the distinguished as­ Mr. ROBERT C. BYRD. I say it most ado about nothing, really. I knew about sistant Republican leader-and I would respectfully. Mr. BROOKE'S desire to speak. like to have the attention of the Senator The agreement was that Mr. Bayh Mr. BAYH. Mr. President, will the Sen­ from Florida (Mr. GURNEy)-that at 3 would be permitted to call up an amend­ ator yield? p.m. today, the Senator from Indiana ment to the Gurney amendment during Mr. ROBERT C. BYRD. I yield. (Mr. BAYH) be recognized to call up his the day. Mr. ERVIN was to call up an Mr. BAYH. I have no objection to amendment to the Gurney amendment, amendment not later than 3 o'clock. It amending the unanimous-consent re­ and that a vote occur thereon at 3:45 was stated very clearly in the RECORD quest to make it 3: 15. p.m. today. The order has already been yesterday that if Mr. BAYH were to get Mr. JAVITS. Make it 3 o'clock. entered to allow Senator BAYH to call recognition today, before 11 :30, or Mr. Mr. BAYH. The Senator from Indiana up his amendment, but no partict:lar ERVIN were to get recognition before has been on the RECORD since we started time was set. 11 :30 today, they could call up their discussing this matter, and I do not see Mr. JAVITS. Mr. President, reserving amendments and have them voted on. why it should come as a surprise to any­ the right to object, we have quite a lineup Mr. JAVITS. As a matter of fact, how body. here. I do not know whether this will fit do we cope with the fact that, with a Mr. GRIFFIN. Mr. President, reserving in or not. I was not one of those con­ fixed time to vote, we are cutting the 6 the right to object, do I correctly under­ sulted about this unanimous-consent re­ hours, and whose time is it going to come stand that the Bayh amendment will be quest, so I am not popping this out of the from? Is it catch as catch can? called up at 3: 15 and voted on at 3: 45? blue, so to speak, but we have 6 hours of Mr. ROBERT C. BYRD. The more the Is that correct? debate on the Gurney amendment and, Senator and I talk, it is going to come Mr. BAYH. That is what has been said as I understand it, that 6 hours will not from Senator GURNEY'S time. Under the in the unanimous-consent request. have expired at 3 o'clock. Is that correct? order we agreed to last week, Mr. BAYH Mr. GRIFFIN. I am sorry to keep ask­ The PRESIDING OFFICER. That is has a right today to call up an amend­ ing all over again. correct. ment, and he has a right to 30 minutes I have just learned that a number of Mr. JAVITS. Now we bring in this on his amendment. I am trying to set a Senators on both sides of the aisle who amendment. I was also informed of a specific time. are members of the IPU group, with the unanimous-consent request to be pro­ Mr. JAVITS. May we deal with the Mexican Parliamentarians, will be at the posed by the Senator from North Caro­ other problem? Whose time is going to White House at 3 p.m. lina (Mr. ERVIN) at 4 o'clock for consid­ be shortened by the fact that we are go­ Mr. AIKEN. I understand that it will eration of an amendment to be voted on ing through all this time? be at 3 p.m. after the Gurney amendment. We have a Mr. ROBERT C. BYRD. Obviously, if Mr. GRIFFIN. And they probablY will fixed time for a vote at 5 o'clock. It sim­ there is not 6 hours in the overall for not be back until 4. I do not know how ply aborts the time that everyone is de­ Senator GURNEY and the opponents of his many are involved and what it would pending on. Under those circumstances, amendment, it is going to come out of mean in terms of the outcome of the vote I would greatly appreciate it if the dis­ their time. That was understood to start on the Senator's amendment, but I tinguished Senator from West Virginia with. thought I should mention that. would explain to us how it will all be Mr. JAVITS. I am agreeable to that, if Mr. BAYH. I want to be amenable. I fitted in together, before we bring this it is evenly divided. Let us have an un­ just want to have 30 minutes to present new item in. derstanding that it is not the alacrity this amendment and whatever time it Mr. ROBERT C. BYRD. Under the with which someone will jump up and takes to vote on it. agreement, Senator BAYH was to be rec­ use his time. Mr. GRIFFIN. I assume that the group ognized to call up an amendment. If he Mr. ROBERT C. BYRD. Frankly, I do includes the majority leader. gets recognition, he is entitled to 30 not see any problem in the matter, Mr. Mr. ROBERT C. BYRD. It does; but I minutes on his amendment. All I am President. was asked by the leader not to delay the asking for is 45 minutes on his amend­ The PRESIDING OFFICER. Is there vote on that account. ment and a set time to call it up. If the objection? Mr. GURNEY. Mr. President, resel'V­ Senator wishes to object to his having Mr. GURNEY. Mr. President, reserving ing the right to object, if that is the case, 45 minutes, all right- the right to object, what are we talking why do we not put off all voting until Mr. JAVITS. No, no. about now, if I may ask the uistinguished about 5 o'clock, when we will have three Mr. ROBERT C. BYRD. I would be assistant majority leader? votes-on Senator BAYH'S amendment, glad to change the request and make it Mr. ROBERT C. BYRD. I will restate on my amendment, and on Senator 3:15 that Senator BAYH would be recog­ my l'equest. ERVIN'S amendment-and everybody will nized to call up his amendment. Mr. JAVITS. Make it 3:15. be here? Mr. JAVITS. I do not think the Sen­ Mr. ROBERT C. BYRD. I think the Mr. ROBERT C. BYRD. Just catch as ator from West Virginia gets my point. Senator from Florida has a right to ob­ catch can. As I understand it, we begin to vote at ject, if he Wishes. It is his amendment. Mr. BAYH. May I make a unanimous­ 5 o'clock and now we are asked to vote The Senator from New York, of course, consent l'equest? on the Bayh amendment sooner. than has a right to object, too. The PRESIDING OFFICER. Does the 14850 CONGRESSIONAL .RECORD - SENATE -May 15, 1974 Senator from West Virginia withdraw Mr. BROCK. Mr. President, will the I think it is vital to remember that this his request? Senator yield? is the real issue of the amendment be­ Mr. ROBERT C. BYRD. Mr. President, Mr. ROBERT C. BYRD. I yield. fore us. I ask unanimous consent that at 3 p.m. Mr. BROCK. The unanimous-consent Actually, when busing was first pro­ today, the distinguished Senator from request was based upon the premise that posed several years ago, it sounded like Indiana (Mr. BAYH) be recognized to call the Ervin amendment was to the Gurney an excellent idea. But it does not work up his amendment and that the vote amendment. and has not worked. Busing arouses the occur on that amendment at 5 p.m. to­ Mr. ROBERT C. BYRD. The agree­ passions of both parents and students. day. just prior to the vote on the Gurney ment was; yes; but the pending request It generates hostility and resentment in amendment. is not. the community and defiance among The PRESIDING OFFICER. Is there Mr. BROCK. Let me understand the school officials. Thus, it stands in the objection. The Chair hears none. and it is pending request. Is the Senator asking way of education-it does not improve so ordered. for debate on the Ervin amendment to it. I oppose busing because I am con­ Mr. ROBERT C. BYRD. Now, Mr. transpire immediately after the vote on Vinced, based on our experiences to date, President, there is the matter of the the Gurney amendment? that it actually impedes progress toward Ervin amendment. Mr. ROBERT C. BYRD. No. equal educational opportunity for every­ I understand that Mr. ERVIN, about 4 Mr. BROCK. I think that is what one. In practice, busing has never ful­ p.m. today, would like to discuss his should be done. filled its promise-it is a remedy which amendment, which is not an amendment Mr. ROBERT C. BYRD. It probably has not worked, and to perpetuate the to the amendment by Mr. GURNEY. Mr. should be done. I am merely stating what remedy I am afraid will tear apart the ERVIN was hoping that an hour could be the Senator from North Carolina wanted public school system in this country. utilized for the discussion of that amend­ or hoped would be done. For those reasons, and those reasons ment. I do not know what the amend­ Mr. BROCK. I suggest to the Senator alone, I Will vote for the Gurney amend­ ment provides. He is also hoping tha~ im­ that I cannot support a unanimous-con­ ment. mediately following the vote on the sent request that would lead to that The most deplorable aspect of the de­ amendment by Mr. GURNEY, a vote would result. I would support a request to have bate on this matter is that it is and will occur on the amendment by Mr. ERVIN. the Senator from North Carolina recog­ be used as a political issue. Mr. JAVITS. As I understand it, Sen­ nized, immediately following the vote on Unfortunately there are those who will ator ERVIN wants a vote on his amend­ the Gurney amendment, for such time use the busing issue to suit themselves. ment as if it were an original thing and that the Senator thinks is necessary for And we can be pretty sure that through­ not an amendment. the amendment, and then to vote im­ out they will point to their concern for Mr. ROBERT C. BYRD. The Senator mediately at the conclusion of that time. the children in justification of such op­ is correct. Mr. ROBERT C. BYRD. Mr. President, portunism. Mr. GRIFFIN. Mr. President, reserving I withdraw the request. We must remember that the objective the right to object, it does seem a little Under the agreement previously en­ is quality education for all. Furthermore, odd, I must observe, that we would be tered, the Senator from North Carolina it is no longer even arguable that the spending the last hour of the debate on presently is to be recognized at some poor and the blacks and the Chicanos the Gurney amendment discussing a dif­ point before 3 o'clock. suffer most from substandard educa­ ferent amendment which was not an The PRESIDING OFFICER. That is tion-and that very lack serves to per­ amendment to the Gurney amendment. correct. petuate their status in our Nation. Obviously, when there was the under­ Mr. ROBERT C. BYRD. I withdraw I believe we must now put every means standing or the expectation that Senator the request. Hopefully, something may at our disposal to the task we should ERVIN was going to amend the Gurney be worked out which will be agreeable to have been at all along: Providing enough amendment, the discussion on the Ervin all sides in that connection. school plants, enough good and dedicated amendment would make sense. But I do UNANIMOUS-CONSENT AGREEMENT teachers, and responsive curriculums to not understand it now. Mr. ROBERT C. BYRD subsequently serve all our children. I wonder whether there could be a said: Mr. President, I have cleared the For that reason, Mr. President, I am half hour on the Ervin amendment-it following request with Mr. ERVIN, and I drafting separate legislation which will may be that he want-s to make some have discussed it-may I say to Sena­ embody those three elements. points in the discussion prior to the vote tors-with the distinguished Senator I will propose, first, that we make on the Gurney amendment-and then from Florida (Mr. GURNEY) and the dis­ available funds enough to replace or up­ there could be another half hour after tinguished Senator from Tennessee (Mr. grade every inferior school in this Na­ the vote-if he wants an hour-after the BROCK) . tion's poverty areas to a level equal to 01' vote on the Gurney amendment, if he I ask unanimous consent that the superior to the very best we now have wants another half-hour on his amend­ amendment by Mr. ERVIN be called up in our affluent suburbs. This is an exten­ ment. today at 4 o'clock p.m., that it be under sion of the excellent amendment added Mr. ROBERT C. BYRD. The Senator a 30-minute time limitation, and that it to .the bill by the distinguished Senator from Florida may be aware of what then be set aside, but that immediately from Minnesota (Mr. HUMPHREY). How Senator ERVIN'S amendment contains, following the vote on the amendment by much will it cost? I frankly do not know and he may be perfectly agreeable to this Mr. GURNEY, a vote occur on the amend­ yet and I will urgently welcome the sup­ arrangement. I do not know. ment by Mr. ERVIN. port and assistance of my colleagues­ Mr. GURNEY. We did discuss it. I The PRESIDING OFFICER (Mr. especially those on the Education Com­ must say to the distinguished acting ma­ CLARK) . Is there objection to the request mittee-in finding out. jority leader that when we discussed it of the Senator from West Virginia? The Second, I will propose special programs very early in the day, we did not know Chair hears none, and it is so ordered. to attract and keep superior teachers in we were going to run out of time on Mr. HASKELL. Mr. President, some­ our inner city schools. This is an abso­ my amendment, and obviously we now time today we will vote on the Gurney lute necessity. As we know, qualified, ex­ are. amendment, No. 1144, to the Education perienced teachers with seniority-gen­ As a matter of fact, as I see these time Amendments of 1974, S. 1539. The con­ erally speaking, can select their assign­ alTangements, I do not think there is troversy surrounding this amendment­ ments within our school systems. Too going to be any way for either the man­ and its counterpart, the Esch amend­ often they opt for the new schools away agers of the bill or me to sum up the ment-has been churning for weeks. As from the core city. That leaves the young arguments, and I think it is rather im­ to the constitutionality or lack thereof, or inexperienced teacher to confront the POl·tant. If we could reserve, say, 20 see 40 University of Cincinnati Law Re­ real educational challenge of teaching minutes prior to the vote on the amend­ view 199 at page 259 by Archibald Cox. disadvantaged students in substandard ment, I think that would be a better way I suppose anyone who knows the 93d schools. to arrange it. Congress is still in session also knows the I think special salary incentives will Mr. ROBERT C. BYRD. Mr. ERVIN is Esch-Gurney amendments would forbid serve to attract our best teachers to the not in the Chamber, Mr. President, but the court-ordereq busing of schoolchil­ schools in which they are most badly I feel that that would be perfectly agree­ dren beyond the school next closest to needed. able with the Senator. their homes. The third element of my proposal will May 15, 1974 CONGRESSIONAL RECORD - SENATE 14851 be to provide funding and technical as­ thank the distinguished floor manager reqmrmg the assignment of students sistance for local schools in developing for yielding to me this time to talk about beyond either the school nearest their programs and curriculums which reflect this critical issue. I commend him again homes, or the next nearest school. This the needs and goals of the students they for his excellent leadership on this cru­ provision is clearly void, since it flies in serve. This is an urgent need. There is cial education measure. the face of Supreme Court decisions that no refuting the evidence we have seen Mr. President, may we have order? are based upon the Constitution, and it that in too many of our schools the sub­ The PRESIDING OFFICER. The Sen­ seeks, in effect, to amend the Constitu­ jects and teaching methods are so for­ ate will be in order. Senators will please tion by statute, something that cannot be eign to the students that they are mean­ be seated. done and something we know cannot be ingless. The Senator may proceed. done. One wonders why it is being How do we force heretofore unrespon­ Mr. MONDALE. Mr. President. the de­ attempted. sive school districts to take advantage of bate today is not a new one. Almost In addition, the amendment could such affirmative action programs for every year since adoption of the Civil work great hardship if enforced. In some their substandard schools? I will propose, Rights Act in 1964, we have faced instances it would permit the transporta­ Mr. President, that·any school district amendments designed to interfere with tion of children over long distances. In which has a substantialdisparity in edu­ independent judicial and administrative others, it would bar even a short walk to cational quality between its schools but enforcement of the equal protection an integrated schooL It would confine fails to apply for Federal aid to upgrade clause of our Constitution as it affects desegregation to those families living the inferior ones will be denied all Fed­ public education. on the fringe of segregated housing areas, eral education funds until such appli­ Time and again the Senate has been fostering "white flight" and encouraging cation is made. asked to join in vain efforts to overturn the spread of residential segregation. I submit, Mr. President, that such a judicial decisions, through legislation And in many cases this rigid rule would program is a remedy, far superior to bus­ which we know to be unconstitutional. actually increase the hardship to chil­ ing, to accomplish the purpose of qual­ And time and again the Senate has re­ dren and their families. As Chief Jus­ ity education for all. fused to do so. tice Burger remarked for the Court in The PRESIDING OFFICER. Who No fact of American life is more un­ Swann: yields time? pleasant than the fact of discrimina­ Maps do not tell the whole story since non­ Mr. BAYH. Mr. President, I ask unani­ tion against schoolchildren based on contiguous school zones may be closer to mous consent that Mr. William Heck­ each other in terms of the critical travel race and ethnic origin. And no process time, because of traffic patterns and good man, of my staff, be permitted the privi­ has been more difficult and painful than highways, than schools geographically closer lege of the floor during the discussion of our national effort to end this discrimi­ together. Conditions in different localities this bill. nation, over the past 20 years. We have will vary so widely that no rigid rules c'an The PRESIDING OFFICER. Without found the road harder than we perhaps be laid down to govern all situations. objection, it is so ordered. expected. the national leadership weaker, Second, the amendment would permit Mr. PELL. Mr. President, I yield 10 the practical barriers greater. the opening of every court order and minutes to the Senator from Minnesota. These problems are real. But the solu­ The PRESIDING OFFICER. The Sen­ tions proposed by the pending amend­ administrative plan entered into since ator from Minnesota is recognized. 1954-over 1,500 in all. Even where no ments are not. They are both ill-consid­ transportation is involved under a long­ Mr. MONDALE. I thank the Senator ered and beyond the legislative power of settled desegregation plan, cases could from Rhode Island. the Congress. be reopened by a single parent where Mr. DOLE. Mr. President, will the Sen­ The power of the Congress to enforce ator yield for a unanimous-consent re- the equal protection clause of the 14th courts in the past did not follow, in quest? . amendment through appropriate legis­ order, a hierarchy of remedies imposed Mr. MONDALE. I yield. lation plainly does not, as some have in the pending bill. And the Attorney Mr. DOLE. Mr. President, I ask unan­ argued, include the power to erode its General is instructed to assist school imous consent that Ken Benjamin, of guarantees. As the Supreme Court said system in making full use of the "re­ my staff, be accorded the privilege of the opener" provision. in Katzenbach against Morgan: This is an invitation to massive re­ fioor during the debate on my amend­ Section 5 does not grant congress power ment. to exercise discretion in the other direction litigation, an unpardonable effort to re­ The PRESIDING OFFICER. Without and to enact statutes so as In effect to dilute open old wounds which have begun to objection, it is so ordered. equal protection and due process decisions heal. Mr. CRANSTON. Mr. President, will of this Court. We emphasize that Congress' While the amendment proposed by power under section 5 is limited to adopting the Senator from Florida is complex, the the Senator yield for a unanimous-con­ measures to enforce the guarantees of the sent request? amendment of the Senator from North amendment: Section 5 grants Congress no Carolina is simple. Mr. MONDALE. I yield. power to restrict, abrogate, or dilute these Mr. Part C of amendment No. 1144 is been "busing to achieve racial balance." those denied an equal education. clearly unconstitutional, but constitu­ This phrase has consistently and deli­ This section ignores the fact that the tionality was obviously not a criterion berately been used to instill unfounded racial character of neighborhoods has for those who drafted this measure. fears in millions of Americans who en­ not been accidentiaI. All levels of gov­ Section 911 would delay civil action vision massive busing across school dis­ ernment have been involved, partly by against an educational agency until such trict, municipal, county and even state design, mostly by default, in residential time as the Attorney General served no­ lines. No such busing is now required by segregation. School assignments based tice to the agency of the conditions which Federal courts and agencies. It is un­ solely on a student's residence is often constitute a violation of the act and he likely any such busing shall ever be fed­ discriminatory and is not a neutral de­ is satisfied that the agency has not taken erally mandated. vice for complying with the 14th amend­ adequate remedies within a reasonable Those who raise once again the specter ment. Neighborhoods may be a conven­ time. The effect of this section is to slow of "busing to achieve racial balance" ient basis for pupil assignment, but they the desegregation process. It is but an­ have had full opportunity to deal with are not of such supremacy as to override other obstacle to integration this bill this nonproblem. Congress passed and constitutional rights. As Chief Justice seeks to erect. the President signed into law a mora­ Burger noted in Swann: The next section, 912, follows this de­ torium on any such busing ordered by a Desegregation plans cannot be limited to fiant pattern. It would provide that the U.S. district court. the walk-In school. prevailing party in any action under the The provisions of section 803, Public Section 906 would mandate such in­ act may, at the court's discretion, re­ Law 92-318, are clear: adequate remedies and prevent the cover a reasonable attorneys' fee as part Notwithstanding any other law or provi­ courts from developing alternate deseg­ of the cost. sion of law, In the case of any order on the regation plans sufficient to remedy a There is no doubt of the consequences part of any United States district court which constitutional violation. Section 806 is of ,such a provision. It strikes at the requires the transfer or transportation of any but one of many provisions of the pend­ very foundation of American justice by student or students from any school attend­ intimidating and deterring the poor from ance area prescribed by competent state or ing amendment which seeks to block local authority for the purpose of achieving adequate remedies to violations of the' asserting the constitutional rights of a balance among students with respect to Constitution. their children. race, sex, religion, or socio-economic status, ENFORCEMENT In 1972, in its critique of H.R. 13915, the effectiveness of such order shall be post­ Part C of this amendment wouId al­ the Association of the Bar of the City poned until all appeals in connection with low the gradual restoration of segrega­ of New York's Committees on Federal such order have been exhausted or, in the tion in our Nation's schools and pro­ Legislation and Civil Rights stated the event no appeals are taken, until the time case against such a provision as follows: for such appeals has expired. This section vide impunity to the resegregation proc­ shall expire at midnight on January I, 1974. ess. How frightening to contemplate the To permit the recovery of attorneys' fees undoing of all that we have strived for against civil rights plaintiffs is to reject the But busing to achieve racial balance in the past 2 decades. But the authors rationale of Title II of the 1964 Civil Rights is but a bogus issue raised to divert at­ of this legislation seem indifferent to Act as interpreted byNewman v. Piggie Park tention from the real intent of propo­ the consequences and constitutionality of Enterprises, Inc. where the court stated that nents of this legislation. Justice Powell's a plaintiff under Title II of that act obtains part C. Under part C, once a court has an injunction not for himself alone but ruling in the Augusta case in 1972 under­ approved an implemented desegregation also as a "private attorney general." In fact scored the distinction between the goal plan, an individual is prohibited from the 1964 Civil Rights Act and the 1968 Fair of racial balance and the imperative seeking his constitutional rights to equal Housing Act provides that attorneys' fees of desegregation. As to section 803 of protection, should the schools within the are recoverable by plaintiffs under certain Public Law 92-318, Justice Powell ruled: system become segregated again because circumstances in accord with the public It does not purport to block all desegre­ of shifts in population. Such resegrega­ interest nature of such litigation. gation orders which require the transporta­ tion could well stem from official act or The prospect that a plaintiff may lose II tion of students. civil rights action and therefore be reqUired neglect and clearly violate the equal pro­ to pay SUbstantial attorneys' fees would have Powell also wrote: tection clause of the 14th amendment an "in terrorem" effect on attempts to vin­ If Congress had desired to stay all such which, since Brown I, has prohib~ted the dicate civil rights. The problem is high­ orders, it could have used clear and explicit maintenance of racially segregated lighted by other provisions of EEOA which language appropriate to that result. schools. make It likely that decrees heretofore ob­ tained by civil rights plaintiffs w1ll be re­ It is obvious that the so-called anti­ Such segregation is as much a con­ stitutional violation if it results from a opened. busing forces are caught in a semantic process of resegregation after a court­ Moreover, to allow a court to charge at­ trap they themselves have set. To excite torneys' fees to an unsuccessful plaintiff the public, they spoke of "forced busing approved desegregation plan is imple­ Is quite contrary to the spirit of American to achieve racial balance." And so Con­ mented, as it is prior to the implementa­ justice which has not allowed the taxation gress postponed such orders for 18 tion of the plan. of costs so high as to discourage plaintiffs months. However, since busing for I'acial This provision is a patent infringe­ from commencing litigation to obtain what ment on the rights of citizens for equal they deem to be their rights. balance was not the problem, those who protection. Congress does not have the oppose busing for its present constitu­ Section 912 is clearly "contrary to the tional purposes were obviously displeased power to pass a law limiting or narrow­ spirits of American justice." This with the solution. Caught in their own ing the guarantees held to be embodied in the equal protection clause. In 1966, amendment is, too, as we have seen in trap, they fought more relentlessly than the policy findings, definitions of unlaw­ I, or most people, expected; and H.R. the Supreme Court addressed itself spe­ cifically to this point in Katzenbach ful practices and enforcement provisions. 13915 was the product of their zeal. So, REMEDIES too, are the Esch and pending amend­ against Morgan, when it stated: ments. Section 5 (of the 14th Amendment) does However, it is in the amendment's Section 906 of amendment No. 1144, not grant Congress power to exercise discre­ proscription on remedies that this meas­ tion in the other direction and to enact ure is most threatening to the rights of which provides that the assignment of statutes so as in effect to dilute equal pro­ students to "neighborhood" schools fuI­ Americans. tection and due process decisions of this Section 913 mandates that in formu­ fills a school system's constitutional obli­ court. We emphasize that Congress' power lating a remedy: gation, seeks to establish the previously under Section 5 is limited to adopting meas­ stated but mythical national policy of ures to enforce the guarantees of the Amend­ A court, department, or agency of the the neighborhood school as the basis of ment: Section 5 grants Congress no power Ul11ted States shall seek or impose only such our educational system. Again the proof to restrict, abrogate, or dilute these guaran­ remedies as are essential to correct par­ of intent or purpose is required if such tees. ticular denials of equal educational oppor­ neighborhood school assignments result Section 5, moreover, cannot be used as tunity or equal protection of the laws. in segregation. In effect, this section a basis for regulating the jurisdiction of It is unclear what is intended by sec­ would say to segregated youngsters that the Federal courts. It concerns only ques- tion 913. The House Education and La- lJlay 15, 1974 CONGRESSIONAL RECORD - SENATE 14857 bor Committee's report on a similar sec­ eration building capacities and natural ner city. Our cities would become more tion in H.R. 13915 stated only that- physical barriers. Yet, if this does not and more bastions of the very rich and This provision means that courts are not work, the bill would allow the courts to the very poor. This is an expression of to use law suits against school districts as ignore physical barriers such as railroad the worst social policy imaginable. It also occasions for Imposing free-wheeling re­ tracks, a river or busy highway. The seeks to deny the jUdiciary the flexibility quirements on these school districts. Rather, great concern for safety in respect to which the Supreme Court has continu­ they must restrict themselves to the par­ busing earlier expressed in part A is ob­ ally recognized they must have to devise tIcular facts and circumstances of the cases. viously not paralleled in section 914's remedies likely to succeed in local So we are confronted with a section consideration of alternate remedies. The situations. of vast implication with only the slight­ third priority remedy set forth in sub­ Clearly an inflexible national standard est hint of legislative intent. We can section (c) is contrary to a series of Su­ with such far-reaching implications de­ only speculate as to its full intent. preme Court decisions since 1968 that serves the most careful scrutiny. I doubt The limitation of remedies to particu­ have ruled that "freedom of choice" or anyone in Congress or the executive lar denials of rights could be intended "open enrollment" plans are rarely an branch really knows how this would af­ to restrict the courts from ordering effective remedy. Section 914(c) would fect our various cities, and its different school district-wide desegregation plans. undermine any impact a desegregation effects on large, medium, and small The Justice Department has contended plan might have by permitting white cities. I doubt if anyone really knows the that district courts must limit their or­ students to transfer from integrated effect that this would have upon the peo­ ders to remedies applying only to "pock­ schools. Any white student who could ple who live in these areas. And I won­ ets" or "incidentals" of discrimination show that students of his "national der if many of them even care. within a school system. -Judge Wisdom origin" were not in a majority in the How can we conceivably consider act­ of the Fifth Circuit Court of Appeals in school he wished to attend could presum­ ing in such a vacuum of information? United States against Texas Education ably effect a transfer. Subsection (b) of section 915 is merely Agency responded to this argument: I cannot imagine a more potentially an unnecessary affirmation of Swann What the Department now refers to as divisive scheme than to suggest that all and current law-section 802(a), Public proof only of piecemeal or pocket discrim­ schools keep track of the national origin Law 92-318. Again t.he authors of this ination has always been Its tried and true of all its students. It would only call at­ amendment have sought to suggest prob­ method of proving school segregation. The lems that do not exist in order to advance discriminatory acts of the school authori­ tention to differences and create group ties Infect the entire school system; they are tensions where none had previously their measure. particularly obvious In the so-called "pock­ existed. While white students would find Section 915 (c), in permitting resegre­ ets" ... The concept of "Incidents" of dis­ transfers easy, a black student would be gation without remedy once a court de­ crm!nation Is an Inscrutable new concept required to assume the full burden of termines a school system has eliminated totally at odds with the teaching of Brown change as an outsider coming into a its previous dual system, is similar to a and its progeny-and with all previous cases school that must have a minority of his provision added on the floor of the House in which the Department of Justice has ap­ to H.R. 13915 in 1972. peared. race. Each year since 1966 the Senate has In conjunction with section 915(a), The effect of section 913 would be to rejected proposals that would seek to limiting transportation to the next clos­ allow the judicial treatment of symptoms make freedom of choice fulflll constitu­ est school, section 915(c) would assure without responding to the disease itself. tional desegregation requirements. We and promote further segregation of . It could also be that this section is are now confronted with a mea.sure neighborhoods and the resulting resegre­ intended to preclude the use of class which places such plans third in line of gatlon of neighborhood schools. Since action suits in school desegregation priority, anp seeks to limit true freedom students could be bused only to the next cases. But the intent is not now clear. of choice to white stUdents only. We were closest school and since subsequent court In the 1972 House debate on H.R. so threatened on October 10, 1972. We orders requiring transportation to adjust 13915, Representative WIGGINS asked are again so threatened today, May 15, for shifts in residential populations Representative QUIE whether or not the 1974. would be prohibited, families living in use of the word "particular" was intended Section 914 sets forth remedies that school attendance zones next closest to to foreclose class actions. are inequitable and inadequate to fulfill black neighborhoods would need move Representative QUIE answered: constitutional responsibilities. only one attendance zone further to avoid I could not tell the gentleman, but I doubt Section 915 denies a remedy that is in desegregation completely. that would be the case. The question never many instances the only one available­ Thus, section 915(c) would fortify the came up, so I have not checked It with transportation. Simply stated, section next closest school concept by foreclos­ counsel at all, but I doubt that it would. 915 insures that should all the other pro­ ing future options to the courts to re­ If Representative QUIE'S doubts are not visions of this measure fail to impede de­ medy the residential shifts caused by ap­ amrmed, section 913 of the pending segregation attempts, this provision will plication of the next closest school con­ amendment could limit courts to pro­ succeed. cept. viding remedies only to individual plain­ By forbidding Federal courts and In proposing this provision, which be­ tiffs, thus making it impossible to de­ agencies from ordering any school sys­ came section 403(c) of H.R. 13915, Rep­ segregate entire school systems without tem to implement a desegregation plan resentative FASCELL contended that­ costly multiple suits. requiring transportation of students be­ This makes the language or the Mecklen­ This section could also be intended to yond the school next closest to their burg case apply to an act of a department eliminate the use of statistics to prove place of residence, this provision would or agency as well as that of a court. a pattern of discrimination in a school precludedesegregation even in the inner I disagree with Mr. FAscELL's inter­ desegregation case. Such evidence is in city; impose the entire burden of deseg­ pretation of Swann against Charlotte­ many instances the most objective and regation on those white families who live Mecklenburg, as already imposing limi­ compelling way to prove discrimination. adjacent to the inner cities; and lead to tations contained in section 915(c) on However this limitation is interpreted chaos. It would free the more alIluent the courts. now, it is obvious that its lack of clarity from the desegregation process while In the closing paragraphs of the would lead to extensive litigation in the lower-middle income families, black and Swann decision, Chief Justice Burger future. white, found their children bused to in­ stated: In light of the other provisions of this ner-city schools. This is the most blatant At some point, these school authorities and measure, I must interpret section 913 as example of class legislation I have seen. others llke them ShOtlld have achieved full intending to narrow the application of Consider the consequences of the knowl­ compliance with this Court's decisIon In remedy, the use of class actions and the edge that a family must live only a cer­ Brown I. The systems wUl then be unltarv submission of statistical evidence. tain distance in relation to two schools in the sense reqUired by our decisions III Section 914 of the pending amend­ to insure its children were not part of Green and Alexander. ment sets forth a priority. of remedies the desegregation process. This provision It does not follow that the communi­ whereby the Federal co~.wouldbe re­ would lead to neighborhood instability, ties served by such systems will remain quired first to attempt to a8sIgn stl.1cients real estate panics, and the flight of the demographically stable, for in a growing, to the nearest school, taking!nt~~llSicl"" middle class from the fringes of the in- mobile society, few will do so. Neither 14858 CONGRESSIONAL RECORD-SENATE May 15, 1974 school authorities nor district courts are process. It is inappropriate for Congress Such measures invite chaos across the constitutionally required to make year­ to attempt to legislatively dictate a result country. Because the remedies and pri­ by-year adjustments of the racial com­ in pending litigation or attempt to im­ orities of these measures thwart deseg­ position of student bodies once the pose its view of constitutional require­ regation plans and violate the consti­ affirmative duty to desegregate has been ments on the courts. tutional rights of our citizens, sepa­ accomplished and racial discrimination Yet, this is the basic intent of this ratists, black, and white, will return to through official action is eliminated from measure-to intrude into the judicial the forefront as the chance is offered to the system. This does not mean that processes and dictate constitutional re­ undo the hard work and good will of rea­ Federal courts are without power to deal quirements that would thwart constitu­ sonable men and women. Those who have with future problems; but in the absence tional rights, and thus deter the consti­ worked hard to make integrated schools a of a showing that either the school au­ tutionally mandated desegregation of our workable reality would be shunted aside thorities or some other agency of the Nation's public schools. by separatists, with the aid of Congress. State has deliberately attempted to fix If this effort to impede school desegre­ In arguing that a reopener provision or alter demographic patterns to affect gation was not sufficiently sinister itself, is unconstitutional, the Association of the racial composition of the schools, consider section 918 of the amendment the Bar of the city of New York in 1972 further intervention by a district court before us. This section would seek to stated: should not be necessary. undo every existing court-ordered or title It is cynical in the extreme, therefore, to This dictum assumes that neither the VI desegregation effort now underway. permit new round" of litigation where suc­ Federal Government nor the State have It would allow thousands of desegregated cessful adjustment to constitutional order contributed in any way to the shifts in or desegregating school systems, with the exists. demographic patterns that may resegre­ assistance of the Attorney General, to That is not an understatement, nor is gate schools. It must also be read in the return to the courts and Federal agencies the association's assertion that a re­ context of the Swann decision as a cau­ to have their plans modified in accord­ opener provisior.. is unconstitutional. tion to courts to exercise commonsense ance with this amendment. And the pro­ If this section intends to create a right in the administration of desegregation visions of this deviously drafted measure to reopen proceedings which is greater plans. Section 915(c) is more than a cau­ would allow the return to segregation, than the traditional equity doctrine to tion; it is an invitation for covert ac­ and that is what the authors of this review in the light of changeC circum­ tions to subvert desegregation orders by amendment want. stances, and I assume it is or the section official acts, which would result in re­ This would be in cases where district would be unnecessary, then it singles out segregation. A statutory prohibition of courts have already approved plans­ on the basis of race a class of Federal subsequent action against the effect of sometimes modified them, to be sure-by court decrees for sp~cial treatment since such an act could well encourage the act. which the process of desegregating school it applies only to desegregation cases. In my remarks of October 10, 1972, I was systems is proceeding in accordance with Therefore, I contend that placing pleased to yield on a similar point to the law. What section 918 would say to the such a burden on minority group liti­ distinguished Senator from Michigan courts and schools is, "Let us open this gants violates the doctrine of Hunter (Mr. HART), who stated: all up now. You can stop desegregating, against Erickson. In that 1969 decision, Mr. President, I am grateful that the Sen­ gO back to the courts, modify your plans, the Supreme Court held unconstiutional ator has developed the points he has. TIle and, in fact, return to the segregated a provision added to the charter of the Senator was commenting a moment ago on point you were at before you either vol­ city of Akron, Ohio, which required any section 403. I am not sure we understand untarily proceeded to desegregate or you ordinance regulating the sale or lease of fully the affront, really, that appears to be were ordered to do so under law." contained in the kinds of orders that this property on the basis of race to win the bill would issue to the federal courts. This would put us back decades; and approval of a majority of voters in a this would totally disrupt areas where Am I correct in understanding the Senator general election before it could take ef­ from Massachusetts to make the point that many, many times the people have found fect. The Court held that the charter no matter how gross a denial of equal pro­ that the desegregation of the public could not place "special burdens on tection of the laws a court may find a school schools is not the traumatic experience racial minorities within the governmen­ district to have engaged in violation of the many have attempted to make it in pro­ tal process." 14th Amendment, we are saying in sec­ posing this amendment. Section 918 could place special burdens tion 403 (of H.R. 13915) that the court can­ Millions of Americans have found that on racial minorities. This section makes not exercise either its commonsense nor give their fears have been allayed; and they it more difficult for minority children any re11ef to a constitutional violation? are working very well together-blacks to enjoy their right to equal educational I replied: and whites-to bring about the desegre­ opportunity since it forces them to relit­ Precisely. That is exactly the point I am gation of their public school systems. igate cases they had presumably already stressing. But this measure, particularly this see­ won. Thus, I contend this section is most Mr. President, without losing my rights tion, would encourage them to return to probably unconstitutional under the to the floor, I yield to the Senator from the segregation which they had before. principle of Hunter against Erickson. Florida (Mr. GURNEY) for the purpose of To me this is an unconscionable proposi­ Yet, I take little comfort in the pre­ a unanimous-consent request. tion for anyone to have set before Con­ sumed unconstitutionality of this re­ The PRESIDING OFFICER. Without gress. opener. That the House of Represent­ objection, it is so ordered. This "reopener" clause is frightening atives could pass and the Senate could Mr. GURNEY. I thank the Senator. in its potential. The wording is so broad even consider such a provision frightens Mr. President, I ask unanimous con­ that it would allow the reopening of all me. How can Congress proceed so cal­ sent that a staff member on the Judi­ past desegregation cases going all the lously with respect to the rights of mil­ ciary Committee, at the request of the way back-over 20 years of progress to lions of Americans? I would like to Senator from Nebraska (Mr. HRUSKA), the Brown case. believe that it has done so unknowingly. Mr. J. C. Argetsinger, be permitted floor In 1972 in testifying before the House On October 10, 1972, I could give the privileges during the debate on this Committee of the Judiciary, Attorney benefit of the doubt to the authors and amendment. . General Richard Kleindienst was asked supporters of such a provision. Today, I The PRESIDING OFFICER. Without whether the right to reopen cases under cannot. Section 918 only stands out amid objection, it is so ordered. section 406 of H.R. 13915 would apply the cynical provisions of this measure Mr. BROOKE. Mr. President, that is only to cases involving busing or to all because, as the Association of the Bar of exactly what section 915 of amendment desegregation cases. He answered: New York said, such a reopener provision No. 1144 would do. And it is inconceivable All desegregation cases. even where busing is "cynical in the extreme." Under ordi­ to me that the proponents of this meas­ might not even be an issue involved in it. nary circumstances almost every provi­ You are going to have an opportunity for a sion of this measure would similarlY be ure really want to do this. school agency to come into a federal district Another prohibition contained in see­ labeled. judge and say. this order was entered into 12 Section 919 of amendment No. 1144 tion 916, would not allow for the ignor­ years ago, congress has laid down a new na­ ing or alteration of school district lines tional standard and we want to re-examine would allow the transportation portions unless there is proof of discriminatory this and apply the remedies and priorities set of court orders to be terminated upon a purpose. This section represents an un­ forth in the national standards, and obtain a finding that the school system is not ex­ necessary intrusion into the judicial new order in this particular case. cluding any person from any school on May 15, 1974 CONGRESSIONAL RECORD-SENATE 14859 account of race. In other words, busing Pucinski will endme: The intent of gress would be aiding racial discrimina­ would remedy the illegal situation, but that measure and the pending amend­ tion and therefore in violation of the due the moment this had occurred it would ment is clear; to deny remedies to viola­ process clause of the 5th amendment. be possible for the school system to re­ tions of the 14th amendment. And this is Viewed in terms of article III of the turn to the situation prior to the busing unconstitutional. Constitution, it Is clear that Congress order. Then only if it could be shown Twenty years ago, Brovm I established lacks the authority to prevent Federal that the system is "effectively excluding that State-imposed segregation by race courts from effectuating a constitutional any person from. any school because of in public schools denies equal protection mandate. While article III authorizes the race, color, or national origin could the of the laws under the 14th amendment. Congress to regulate the jurisdiction of court reissue a busing order. Here again, To correct such violations, the 14th Federal courts, the Supreme Court has the burden is on the plaintiffs, who could amendment commands that the discrim­ held in MarburY against Madison, away conceivably be going back and forth to inating authority take whatever steps back in 1803, and Martin against Hunt­ court. Section 919 would be a revolving are necessary to convert to a racially er's Lessee, in 1816, that the principle of door which would result in periodic util­ nondiscriminatory school system. And in separation of powers precludes Congres..<; ization and determination of busing or­ Swann, the Supreme Court held that if from limiting the authority of the courts ders. And the educational process would school authorities fail in fulfilling their in interpreting the Constitution and ef­ suffer in the confusion. affirmative constitutional obligations, fecting constitutional rights. In the guise Section 920 would· terminate entirely "jUdicial authority may be invoked" and of a jmisdictional statute, Congress can­ court desegregation orders once a school that the Court's power in fashioning not deprive a party either of a right system has been found to have a unitary effective remedies is broad, for "breadth created by the Constitution or of any system. It contains no time limits and and fiexibility are inherent in eqUitable remedy the courts deem essential to en­ would permit the lifting of an order the remedies." force that rIght. moment a school system can claim to be Busing is but one of many remedies Nor can Congress enact legislation unitary. This provision is contrary to the available to school. authorities and the which prescribes a particular result in a practice in other areas where illegal con­ courts. But in some instances busing is case. In United States against Klein, in duct sought to be remedied has ceased. the only effective remedy for the speedy 1872, the Supreme Court held that the In such areas· as antitrust, trade regula­ desegregation plans mandated by the statutory limitation on the Federal tion, and voting rights, courts exercise Supreme Comt in the Green case. courts' jurisdiction, enacted by a Con­ jurisdiction after the illegal conduct that With 20 million American children gress anxious to correct what it con­ prompted the litigation has been riding yellow schoolbuses each day, it is sidered an erroneous line of cases, was remedied. impossible to contradict the Supreme unconstitutional: Section 920 also would apply whether Court's recognition in Swann of busing "We are directed," said the Court, "to dis­ the schools involved were in the past seg­ as an "integral part of the public educa­ miss the appeal, if we find that the jUdg­ regated de jure or de facto. Together, tion system for years" and as a "normal ment must be affirmed.... Can we do so sections 919 and 920 would nullify sec­ and accepted tool of educational policy." without allowing one party to the contro­ In Swann, the Supreme Court found "no versy (the Congress) to decide it in its own tion 904, which defines as a denial of favor? Can we do so without allowing that equal educational opportunity the failure basis for holding that the local school tIle legislature may prescribe rules of deci­ of an educatiohal agency which formerlY authorities may not be required to em­ sion to the JUdicial Department of govern­ practiced deliberate segregation-de ploy bus transportation as one tool of ment in cases pending before it? We think jure-to take affirmative steps to remove desegregation." It added: not ... we must think that Congress haa the vestiges of a dual school system. Sec­ Desegregation plans cannot be limited to inadvertentiy passed the limit which sep­ tions 919 and 920 would require nothing the waik-in school, arates the legislative from the jUdiciai power." more of a de jure school system than a The Esch amendment and amendment de facto system. This is inconsistent with No. 1144 would overrule the principles of The Klein case was decided 4 years section 904. Swann, North Carolina State Board of after Ex parte McCardle, which upheld CONSTITUTIONALITY Education against Swann and Brown II, an act of Congress depriving the Su­ Consistency and constitutionality were by prohibiting the use of busing in any preme Court of appellate jW'isdiction obviously not criteria in drafting the meaningful manner as a remedial tool for over lower Federal court decision in ha­ Esch amendment and amendment No. overcoming a constitutional violation. beas corpus cases. But the Comt in this 1144. Reviewing these measures carefully, In North Carolina State Board of Ed­ case was not sanctioning unrestricted I find, as many legal scholars have done, ucation against Swann, the Supreme congressional power to deprive It of that these amendments are clearly un­ Court declared that no State may frus­ jurisdiction. Despite the act, which it constitutional and invite a severe con­ trate the constitutional mandate of the sustained, the Court still has original stitutional confrontation. I have dis­ 14th amendment. In declaring North habeas corpus jurisdiction as well as cussed, provision by provision, the con­ Carolina's antibusing law to be uncon­ power to review lower court habeas stitutional questions involved. They are stitutional, the Court held: corpus decisions by writ of certiorari. varied and many. In 1972 in the House If a state-imposed limitation on a school Prof. Alexander Bickel has described debate on H.R. 13915, there was a brief authority's discretion operates to inhibit or the McCardle case as "aberrational" but interesting comment that reinforces obstruct the operation of a unitary school and reads it "as a fairly narrow holding." my contention that these identical meas­ system and impede the disestablishing of a I agree with his interpretation. ures seek to subvert the Constitution. dual school system, it must fall; state policy Section 5 of the 14th amendment au­ must give when it operates to hinder vindica­ thorizes Congress to enforce that amend­ Representative Mikva offered an tion of Federal constitutional guarantees. ment by "appropriate legislation," yet it amendment to the bill, which stated: I coritend that Congress has a no less ,prOVides no basIs for sustaining this The limitations on student transporta­ measure. tion contained in this section shall not in­ stringent constitutional duty in this re­ clude any court. department, or agency of gard than any State agency. Yet the Esch Section 5 does not authorize Congress the United States from ordering an adequate amendment and amendment No. 1144 to limit the scope of protection guaran­ remedy for denial of equal protection of the contain the same segregatory mechanism teed by the 14th amendment. Congress laws. prohibited for school authorities, State may not thwart the pw'pose of this legislatures and Governors. These amendment, which was designed to ex­ Representative Pucinski argued: amendments are clearly designed to "im­ pand and extend constitutional protec­ This amendment totally negates every­ pede disestablishment of a dual school tion to those who had previously been thing we have been doing here all evening. system." denied such rights. Mr. President, is that what the House For the Senate to adopt such an In Katzenbach against Morgan, the of Representatives really intended to do? amendment would be to deny equal pro­ Supreme Comt addressed this point Is that what they want for this country? tection where a constitutional violation clearly: This amendment, to be sure, was voted has been found and where busing has Section five does not grant Congress power upon. And what do you think b.appened? been decreed a necessary part of the to exercise discretion in the other direction It admis­ and to enact "statutes so as in effect to was defeated 223 to 154, yet the effective remedy. By stating the imple­ dilute equal protection and due process de­ sion it prompted from Represeritatlve mentation of an effective remedy, Con. cisions of this Court:' We emphasize that 14860 CONGRESSIONAL RECORD- SENATE May 15, 1974 Congress' power under Section five Is limited without regard to the safety of this' Na­ afraid to tell the people that what some to adopting measures to enforce the guaran­ tion? may desire from us, we cannot lawfully tees of the amendment; Section five guaran­ Today, we in the Senate must uphold deliver? I think they would understand. tees Congress no power to restrict, abrogate, or dilute these guarantees. our obligation to the Constitution. And I believe that the proponents of this we cannot do so by passing any measure amendment underestimate the reason­ And that is the purpose of this amend­ which would remove the only effective ableness of those they represent. I have ment, Mr. President. It would restrict, remedy for Violation of an individual always believed that it is the right and abrogate, and dilute rights under the student's constitutional rights; and vio­ responsibility of a legislator or any 14th amendment-the guarantees of the late the principle of separation of powers; leader to educate his constituency, not Constitution. and of the 5th as well as the 14th amend­ just to look at the polls. Do we really I referred to this citation earlier in my ment. want government by polls? We have al­ specific analysis of part C of amendment I call upon my colleagues, many of ways known that crowds could be No. 1144. whom are up for reelection in this elec­ whipped up into emotion by orators and But it should be continually cited in tion year to stand firm behind our Con­ that polls could be mere measures of our consideration of this amendment. stitution. In my own Commonwealth. of momentary passion. Is it a responsible Section 5 cannot be used, as the authors Massachusetts, emotions run high on the legislator who only reacts to that poll of this measure would seek to use it, question of busing, as they do across the and finds that some particular subject is either as a means of limiting the scope country. But there are some things that unpopular at a particular time in the of equal protection or as a basis for regu­ are far more important in this land than history of our Nation or of the world? lating the jurisdiction of the Federal being elected and reelected, such as up­ Changes are constantly taking place courts. Section 5 concerns only ques­ holding the Constitution of the United in this country and across the world­ tions of federalism, as I have stated be­ states and doing what is right under great, sweeping changes. Right now we fore. The history of section 5 demon­ God. are doing things we never would have strates this. Senator Howard, who re­ If I am so certain the Supreme Court thought of doing just a year ago today. ported the 14th amendment to the Sen­ would eventually strike down this legis­ What was unpopular then may be popu­ ate from the Joint Committee on Re­ lation as unconstitutional, why then do lar today. What was popular then may construction, said section 5's purpose was I not suggest we enact this measure and be unpopular today. Yet, we have yielded simply- allow the courts to proceed? Represent­ to this emotionalism of busing. We have To enable Congress, in case the states shall ative James Scheuer, in his individual created a Frankenstein. We have mis­ enact laws in conflict with the prlnclpies of views contained in the House Education led the people as to what the real issue the amendment, to correct the legislation by and Labor Committee's report on H.R. is. We have talked about busing for formal congressional enactment. 13915, provided a most compelling and racial balance, when most of those who Section 5 was not intended to give Con­ enduring answer to this question: do the talking know that that is not the gress greater power than the Federal As a member of Congress, I took an oath to real issue before Congress. We have not courts to define constitutional rights. uphold the Constitution. This oath prevents lived up to our constitutional responsi­ In its severe restrictions on remedies me from taking any action that I know will bility. to a denial of equal protection of the law, jeopardize the dellcate balance the Found­ I would rather be defeated at the polls this amendment would diminish the ing Fathers struck between the three than to compromise my principles and to branches of government. The Supreme Court undermine the Constitution of the United scope of the 14th amendment. Therefore, is the last bastion against legislative tyr­ it fails the test of section 5. anny-a tyranny we experienced during the States. I believe in our Constitution that Another unsuccessful amendment to days of Senator Joseph McCarthy. I cannot strongly. I also believe the proponents of H.R. 13915 during the 1972 House con­ take any action which will unnecessarily this amendment underestimate the rea­ sideration of the measure underscored weaken the Court by politicizing its dellbera­ sonableness of those they represent. I the severe constitutional questions that tions and subject it to further emotional and think their constituents, fully aware of bill would have raised. Representative demogogic charges and counter charges for the provisions of this measure, would op­ STOKES offered a proposed title VII to the merely exercising its clear responsibilities un­ pose it. measure, which stated: der the Constitution. The American people, black and white, Nothing in this Act Is Intended to be In­ Each of us has taken the same oath are weary of division. They long for a consistent With or violative of any provision and our obligations are clear to uphold, respite from turmoil and tension. And I of the Constitution. not tear down the Constitution when our believe they truly desire one Nation in­ citizens find its provisions temporarily diVisible, not two nations apart. The amendment was defeated by a It was my privilege to serve in the vote of 197 to 178. Like Representative uncomfortable. It is our most compelling obligation to Kerner Commission after the riots of Pucinski's admission, the rejection of 1967. We went to many of the strife-torn this amendment makes it clear that the proceed orderly. Yet this amendment would inevitablY lead to a devastating cities across the Nation, and we listened obvious unconstitutionality of the bill to the people. We came back and wrote was of little concern to its proponents in constitutional confrontation between the Supreme Court and Congress, which a report, and we pointed up what was the House, as well as a majority of the happening in this country: that we were House of Representatives. would weaken both'branches and under­ mine the confidence of Americans in our creating a nation divided, a nation with Since the provisions of the pending one side black and one side white, sepa­ amendment are identical to the provi­ ability to govern. This measure does not confront decisions of the Court which rate and unequal; that if we did not sions of H.R. 13915, Mr. President, I must change it, we would be confronted some­ conclude that it is politically inspired. I have been narrowly decided. Rather, it seeks to undo a long line of unanimous time down the road with the same situa­ do not like to use harsh language, but I tions, if not worse, that tormented our must when I see men appealing the decisions. The outcome of the confronta­ to tion would be clear as to law. The Court Nation in 1967. It was not the intention wrong instincts in millions of Americans, and the Constitution would prevail over of that Commission to throw fear into without any regard for the constitution­ the American people. It was an objective ality of what they were doing. Congress. But it would be a hollow vic­ tory as the Nation proceeded chaotically committee that called the facts as it saw In 1972 they were playing for votes on and found, Jor however brief a moment, them, reported its findings, and made its November 7, and nothing more, and it that it was directed once again on a recommendations. was clearly politics in its worst form. If it course of separatism. Once again, Mr. President, Members of were not, certainly the House of Repre­ Who knows how devastating the brief the Congress of the United States seek sentatives could not conceivably have de­ existence of such an act would be on the to drive a wedge between Americans, a nied an amendment which stated: American people? How can you contem­ wedge which could do more harm and is Nothing in this Act is intended to be in­ plate the effect of a measure that would more dangerous than any wedge we have consistent with or violative of any provision ever had before. of the Constitution. have Congress state that because it is not convenient for us to obey the law of Mr. President, because I believe in the How, in good conscience, could they the land, we shall change it, though we good will of our people, I shall do all that have voted against such a measw'e if have no authority to do so? I can-and I ask my colleagues to do they were not playing sheer politics, Do we lack the courage to make clear likewise--to educate our people as to the without regard to the Constitution and our constitutional obligation? Are we frightening provisions of these amend- J!,{ay 15, 1974- CONGRESSIONAL RECORD - SENATE 14861 ments, which would turn us away from October 10, 1972, nothing has changed. We faced essentially the same situation our earnest quest for one nation united The Federal courts have consistently up­ in 1972. toward an unconstitutional and un­ held the Swann decision. The language In the spring of 1972, the House ap­ conscionable retreat toward two nations of the Esch amendment and its Senate proved antibusing amendments to the "separltte but equal." The choice is clear. counterpart are unchanged versions of higher education bill. The Senate My faith in our people is strong and my the so-called "Equal Educational Oppor­ adopted a modification of these amend­ faith in the Senate of the United States tunity Act of 1972:' Like 1972, this is an ments that was offered by the distin­ is strong. When I made a similar asser­ even year and the entire House and one­ gUished majority leader, Senator MANS­ tion in my remarks of October 10, 1972, third of the Senate face either retire­ FIELD, and the distinguished minority I was privileged to yield to Senator HART, ment or a bid for reelection. leader, Senator SCOTT. The Scott-Mans­ who said: But there are differences. The "Equal field amendment eventually was accepted Mr. President, the Senator from :Massa­ Education Opportunity Act of 1972" by the House and has been the applica­ chusetts reminded· us of the caution voiced stood by itself and did not, like earlier ble law since that time. by the Kerner Commission, a Commission and present antidesegregation efforts, In the fall of 1972, the House ap­ which the Senator from Massachusetts threaten a major legislative measure. To­ proved a separate antibusing bill that graced with great distinction. Does not the Senator from Massachusetts day almost every school pupil in the was identical to the Esch amendments agree that the caution voiced several years United states is being held hostage to adopted by the House this year. After later by the Commission on the Causes and the political anxieties of some of their three unsuccessful attempts to obtain Prevention of Violence also has relevance leaders. The "Education Amendments of cloture, the Senate set aside the 1972 here. The Commission on Violence described 1974" are vital to the well-being of all House-approved bill and no further ac­ ours as a country which was developing into Americans as they represent an admir­ tion was taken on it. two nations,the armed and often affluent able review and revision of our Federal The heart of the Esch amendment is suburbs and the decaying savage cities. That is a harsh description and enor­ aid to education programs. a provision that would restrict court or­ mously ominous. Is not the Senator from In the 19 months that have passed dered school busing to provide transpor­ Massachusetts suggesting that it is precisely since October 10, 1972, millions of young tation to the school closest or next clos­ this division and separation which this bill, Americans, black and white, have, under est to the student's place of residence. whatever the motives of those who seek its court-ordered, title VI, or voluntary de­ This limitation would apply even if it enactment, would dig stlll deeper into and segregation plans, been learning about, prevented application of the only effec­ more fatally broaden. from, and with each other. We must not tive remedy for a clear constitutional vio­ Is this not also a caution and a reminder that should be in the minds of each of us now divert their education with anxieties, lation. It would apply even if the dis­ as we are asked in the closing moments, chaos and confusion. We can never re­ tance involved would be less than that really, of this senate to act upon a blll which turn to Plessey against Ferguson. I have involved in other busing for gifted 01' has not even had hearings? lived in this country all of my life and handicapped children or to consolidate I replied then that I thought the dis­ served in many public offices. And I have grades. It would apply even if the busing tinguished Senator from Michigan, who never seen anything both separate and posed no danger to the health or safety has been such a great leader in protect­ equal in this Nation. of the students and did not interfere ing the Constitution of the United States And if our Nation remains separated with their education. stated the pointwell. by fear, ignorance or malice, America This provision is being offered as a I went on to say that I would like to shall never be equal to its great chal­ substitute for the section of S. 1539 that believe that many of those who had lenges, dreams, and goals. restates the Scott-Mansfield amendment. voted on this, particularly in the House, Mr. President, I shall conclude my re­ The Scott-Mansfield provision writes into had done so,· as I had stated earlier, marks today not with remorse, but with statutory law the limitations on busing without full knowledge of the assault determination, hope, and prayer. laid down by the Supreme Court in its upon the Constitution of the United To be sure I am critical of those who decision in Swann against Charlotte­ States that.is contained in this particu­ each election year seek to divide a na­ Macklenburg Board of Education. These lar measure. I suggested that they had tion to conquer a few votes. I am criti­ limitations prohibit busing that would reacted to the high emotionalism in the cal of those who follow expediency endanger the health or safety of a child country, much of which had been cre­ rather than conscience. or that would impinge on the educational ated by the proponents of this particular I am sorry that they fail to realize process. type of legislation-many, I thought out people admire conscience and courage I believe the Scott-Mansfield amend­ of fear, because of the potential politi­ above all else. ment places the emphasis where it cal ramifications or results which could I am saddened because I know that should be-on the protection of the child. come from an adverse vote on that meas­ while the President and Members of It permits the use of busing in situations ure. But as Senator HART then pointed Congress pander to the anxieties of where that is the best tool to accomplish some Americans, black and white they desegregation-but only if it does not en­ out, after the Kerner Commission report wh~ on the riots of 1967, and then the Com­ play into the hands of those seek danger the child or his education. mission on Violence report, all agreed we separatism, thrive on strife, and fIourish I believe that all desegregation plans did not have any disagreement. In many on divisive rhetoric. and programs, whether or not busing is of the commissions that have ever met But my determination, hope, and inv?lved, must not place any children, and made reports, the findings have prayers are bolstered by my abiding white or black, in situations in which been relatively the same, the causes have faith in the American people, who know they would be in danger of personal harm been relatively the same. Many of the what is right, to do what is right though or harassment, or in which they would recommendations have been relatively it may. be painful for some to do so. get an inferior education. the same. The fact is that we have not We in the Senate know the law. We I oppose busing in situations where it acted upon them, we have not imple­ know it is right. We know it should re­ hurts children, or where it hurts their mented those recommendations, in the main unaltered though it may be pain­ education. It is a high quality education main. ful for some of us to say so. for all children that we are all seeking. Indeed, our sins of omission equal or But let us say and do what is right. I believe the Scott-Mansfield amendment I know we shOUld. accomplishes that objective better than exceed our sins of commission. And the I hope we can. the Esch amendment or modifications of greatest sin of commission is tempting I pray we shall. the Esch amendment. too many Senators today. Mr. CASE. Mr. President, the issues The "next closest school" limitation of Nineteen months ago I concluded my we are facing in the Senate in the next the Esch amendment alone provides ade­ remarks by saying: few days in connection with various anti­ quate reason for opposing it. However, Therefore, .1 hope and pray that calm busing amendments are not new to the the Esch amendment also contains a so­ minds w1lI prevail, courageous leadership Senate. will prevail, and that those who are con­ ca?ed reopener prOVision. This would per­ cerned about the elect10nreSUlts Will put Most of the amendments are variations nut reopening of existing desegregation this country. above their own personal p0­ of the so-called Esch amendment that pl.ans to determine whether they comply IItIcal fortunes. has been approved by the House as part WIth the priorities and limits imposed by of legislation extending the Elementary the other provisions of the Esch amend­ Mr. President, since. my remarks of and Secondary Education Act. ment. 14862 CONGRESSIONAL RECORD- SENATE May 15, 1914

Any desegregation plan developed agree with Senator BROOKE on the mat­ Third, on the crucial issue of busing, I under the orders of a Federal court or ter of its unconstitutionality and the fac­ have felt and expressed time and again a Federal administrative agency since tors which are operating in support of it. my feeling that busing of students should the Brown decision of 1954 could be re­ Mr. BROOKE. Mr. President, I deeply be held to an absolute minimum in a opened under the Esch amendment, even appreciate the remarks of the Senator manner consistent with the two princi­ if the plan involved no busing. from Michigan (Mr. HART). ples set out above. Busing of schoolchil­ From the beginning, I have been a Mr. GURNEY. Mr. President, a parlia­ dren does pose a very real hardship on strong supporter of the decision of the mentary inquiry. As I understand it, time large numbers of students and their fam­ Supreme Court in the Brown case and of on this amendment is one-half hour to ilies. There are legitimate issues in op­ the school desegregation progress that be equally divided. Is the time for the op­ position to busing: Issues regarding the has been made as a result of that deci­ position assigned to the Senator from length and safety of massive pupil trans­ sion. Clearly, the reopener provision of Florida of 15 minutes? portation, issues regarding the increased the Esch amendment would encourage The PRESIDING OFFICER. The cost of education, and issues regarding reopening of long healed wounds and time is one-half hour, 15 minutes to a the disruption of local school districts would plunge many communities into re­ side, but the time is assigned to the man­ and traditional education programs-in­ vived racial bitterness and confusion. ager of the bill and the proponent of clUding after-school activities. For each of the reasons I have men­ the amendment unless he is in favor of So I have felt that when it is possible tioned I plan to vote against the Esch the amendment. to protect the rule of law, to adhere to amendment and modifications to it and I Mr. PELL. Mr. President, I yield 10 the Constitution, to provide quality edu­ hope that the Scott-Mansfield provisions minutes to the Senator from Florida. cation, and, at the same time, to hold will be retained. The PRESIDING OFFICER. The Sen­ busing of schoolchildren to an abolute The PRESIDING OFFICER (Mr. ator from Indiana is recognized. minimum, this must be our objective. STAFFORD). Pursuant to the previous Mr. BAYH. Mr. President, I send to the Unfortunately, the amendment offered order, the Senator from Indiana (Mr. desk another amendment and ask that it by the Senator from Florida (Mr. GUR­ BAYH) is now recognized for the purpose be printed, and would advise the Senate NEY) not only does violence to the rule of calling up an amendment. at this time that if the amendment now of law, it also threatens to disrupt the The Senator from Indiana is recog­ before the Senate does not succeed in its education of millions of schoolchildren. nized to call up his amendment. p:'esent form today, and if the Gurney I oppose this amendment which seeks Several Senators addressed the Chair. amendment should fail, the Senator from to return this Nation to separate and The PRESIDING OFFICER. The Ir.diana intends to offer as an amend­ unequal societies, divided by race, and Chair would state that the Senator has ment to title VIII, section 807 and sec­ permanently subjecting millions of no time until the amendment has been tion 805, which will be identical to the Americans to second-class citizenship. called up. Does he wish to call up his amendment which is presently before Indeed, I am satisfied that many Ameri­ amendment at this time? the Senate in the form of a substitute. cans who, like me, object to unnecessary Mr. BAYH. Mr. President, I call up The PRESIDING OFFICER. The busing of schoolchildren would oppose my amendment and ask that it be stated. amendment will be received and will be this amendment for its cynical and ex­ The PRESIDING OFFICER. The printed. pedient dismissal of the vast progress amendment will be stated. Mr. BAYH. Mr. President, tOday's de­ achieved in the past two decades by pro·· The legislative clerk read as follows: bate is not new to this Chamber. The viding millions of schoolchildren with In lieu of the language proposed to be in­ statements being made here today on the quality education without regard to serted by the amendment of the Senator from fioor of the Senate could well be the their race. Florida (Mr. GURNEY), insert the following: echoes of similar debates several times Specifically, by reopening every case SEC. 901. (a) NotWithstanding any other during my more than 11 years as a Mem­ of school desegregation that has been provision of law, no court of the United ber of this body. We have been here be­ States shall order the implementation of any decided since the historic Brown against plan to remedy finding of de Jure segregation fore, we have held this debate before, and Board of Education case, which was de­ which involves the transportation of stu­ yet the question never seems to be re­ cided exactly 20 years ago this week, dents, unless the court first finds that all solved. this amendment would force the recon­ alternative remedies are inadequate. Throughout the busing debates of re­ sideration of successful integration in (b) Before implementing any plan pro­ cent years, I have held to certain con­ scores of school districts throughout the posed by a local education agency to remedy stant principles which have provided the country. The disruption this would cre­ a Judicial determination of de jure segrega­ ate within our system of education tion, the court shall find that such plan basis for my votes on specific amend­ minimizes the transportation of students. ments and individual issues. Those prin­ would be enormous, creating great hard­ SEC. 902. In the formulation of remedies ciples go beyond a single vote, but they ship for students, their parents, their under this Title the lines drawn by a State are the basis for considering virtuallY any teachers, and local school officials. subdividing its territory into separate school vote in this area. In addition, by setting an .artificial districts, shall not be ignored or altered First and foremost, we must adhere and arbitrary determination that stu­ except where it is established that the lines vigorously to the rule of law. Our Con­ dents may not be transported past the were drawn, or maintained or crossed for stitution, including court decisions which second nearest school, this amendment the purpose, and had the effect of segregat­ ing children among public schools on the interpret it, must not be compromised, is a carefully calculated attempt to over­ basis of race, color, sex, or national origin, or lest we open the door to lasting and po­ turn the decisions of our Supreme Court where it is established that, as a result of tentially disastrous erosion of our basic regarding the need to .. integrate our discriminatory actions within the school freedoms. The very strength of our de­ schools in order that all students, white districts, the lines have had the effect of mocracy proceeds from the protections of and black, have quality education. Mr. segregating children among public schools individual rights, including the right of President, I hope fervently that the Sen­ on the basis of race, color, sex, 01' national due process, as embodied in the Consti­ ate will not make itself party to this origin. tution and we must resist forcefullY any blatant and unfortunate effort to do vio­ Several Senators addressed the Chair. attempt to thwart the Constitution or to lence to the rule of law and adherence Mr. JAVITS. :Mr. President, I want to destroy the fundamental role of our to the Constitution. I am convinced the tell the Senator from Massachusetts that courts in guaranteeing 'adherence to the American people will not give their sup­ I consider it a tremendouslY powerful Constitution and the body of statutes port to such an obvious political retreat and historic address. The whole Nation which comprise our law. from decency and from the principles should be deeply grateful to him for hav­ Second, on the specific matter of pro­ on which this country is founded. ing delivered it on this day and in the viding the children of this country with It is because of my conclusion that the prevailing atmosphere in our country. the best possible education, I have long amendment offered by Senator GURNEY Mr. BROOKE. I appreciate the com­ held a firm commitment to quality edu­ is clearly unconstitutional that I am ments of the Senator from New York. cation for all Americans. The courts have offering this substitute. My amendment Mr. HART. Mr. President, I would ex­ held that quality education requires inte­ would retain, as does the modified Gur­ press to the distinguished Senator from grated education, and as one who has op­ ney amendment, the Scott-Mansfield Massachusetts my appreciation for a posed racism and segregation as strongly language contained in the committee scholarly and yet very hard-hitting and and vehemently as possible, I respect the bill. When this language was drafted honest analysis of this amendment. I Courts' ruling in this regard. and made part of the Education Act in May 15, 1974 CONGRESSIONAL RECORD - SENATE 14863 1972, there was general agreement that The second part of my amendment Avoidance of busing of school children it went about as far in limiting busing deals with what is perhaps the most sen­ in every instance where it can be avoided as was constitutionally permissible. sitive aspect of the busing problem-the without compromising the first two prin­ Scott-Mansfield places the following re­ transportation of students across lines ciples. strictions .on·· .the transportation of separating individual school districts. I It seems evident, Mr. President, that students: have categorically opposed attempts to this substitute amendment will not meet First. No provision of the act shall be ban all busing, since there are situations the blatantly racist goals of the forces interpreted to require the assignment or in which it is the only remedy to in­ that have been mustered in support of transportation of either students or justice. I have also long felt that if you the amendment of the Senator from teachers in order to overcome racial im­ have a finding of de jure segregation on Florida (Mr. GURNEY). It is probably balance. the part of a city school system, it is also true that this amendment will not Second. No Federal funds shall be used ineqUitable to impose on the school dis­ satisfy those who do not share my gen­ to transport stUdents or teachers unless tricts surrounding that school system eral dislike of busing. local school officials voluntarily set aside the burden of remedying the problems But I must say to my colleagues, it money for such purposes. that officials of the city school system makes little sense to engage in massive Third. No Federal funds shall be made have created for themselves, unless it is school busing when we have valid and available for the purpose of transporting also found that the districts surrounding substantial means to achieve quality, in­ students if the distance involved is so the city schools were either established in tegrated education. As I said those means great as to risk the health of students or order to create or preserve segregation are available; they include educational when it would "significantly impinge" on or that they have themselves participated parks, school pairing, new construction, the education process. in discriminatory activities. Hence, my redrawing of internal boundary lines Fourth. No funds shall be used for amendment provides that school district within school districts and other such the transportation of a student to a lines may not be crossed for busing unless remedies. "substantially inferior" school when that there is finding that those lines were Mr. President, let me reiterate, the ef­ student would otherwise be assigned to "drawn, or maintained, or crossed" for fect of the Gurney amendment goes far another school based on geographic zones the purpose of segregation or there is a beyond limiting school busing. This established without discrimination, and finding that "as a result of discrimina­ amendment prevents the use of pupil finally. tory actions within the school districts, transportation where it is the only pos­ Fifth. No Federal funds may be con­ the lines have had the effect of segregat­ ing children." sible alternative which can successfully ditioned by any Federal officials on a re­ provide quality education to the children quirement that any local school board Clearly, where students are bussed across school district lines to preserve of a community. But it goes further. It transport students unless such trans­ would permit reopening the emotional, portation is constitutionally required. segregation, no claim as to the inviola­ bility of district divisions should be al­ demagogic, and racially volatile issue of I think it is important for us to recog­ school busing in those communities that nize, Mr. President, that not only has lowed. Similarly if, in reorganizing, con­ solidating or changing the boundaries of have previously dealt successfully with the Congress placed strict limits on bus­ school districts, a clear racial separation the issue of school integration. This ing, but the courts have also recognized across one or more district lines was would subject every school board in that busing should be as limited as pos­ intentionallY maintained when other America that has previouslY provided sible. In the leading case of Swann logical reorganizations would have quality integrated education to its chil­ against Charlotte-Mecklenburg Board of desegregated the overall area involved, dren to assault from those holding the Education, the court held that while pu­ then, under my amendment, school dis­ most base racial attitudes. We must not pil transportation was one of the many trict lines could be crossed. Finally. if be put in the position of giving license remedies which a lower court could use the courts should find that both the and support to the worst elements in our to overcome the effects of de jure segre­ city and adjacent school systems have society. Those elements are not concerned gation, it should not be used where the individually practiced segregation, then with quality education for our boys and time or distance of travel is so great as the ignoring of school district lines would girls. They seek to play on the latent to risk the health of the children or to be appropriate. But if none of these acts prejudices and fears of mothers and impinge on the education process. The on the part of school districts lying out­ fathers to promote their own selfish in­ court noted that there are other means side a school district found guilty of terests. They seek to rekindle these emo­ of remedying the situation inclUding the segregation can be shown, then my tions w4ich almost destroyed our country redrawing of attendance zones, use of amendment would not permit the school in a long and bloody war between the cluster techniques, and educational district which had been shown to have States. Thousands of Americans have parks which should be tried before mov­ practiced segregation to attempt to solve given their lives to wipe out second-class ing to busing as a remedy. its failings by busing to districts which citizenship. Millions of Americans stand The substitute amendment I am of­ are innocent of practicing segregation. ready to rl'ject retreat from our funda­ fering today would add to the existing As important as it is to stop segregation, mental commitment to equality of op­ Scott-Mansfield restrictions two addi­ it does not follow that school districts portunity. We in the Senate should be tional provisions. First, it would require which have acted responsibly and leading the way. that any court which is considering a avoided segregation should be thrust into Finally, Mr. President, it is not nec­ plan to remedy a finding of de jure segre­ the position of rectifying the failings of essary for this issue to become polarized, gation must first specifically find that all adjacent districts which have practiced leaving the Senate with the choice of alternative techniques have been at­ segregation. condoning unnecessary busing, on the tempted which do not involve the busing Mr. President, I am satisfied that my one hand, or, on the other hand, giving of schoolchildren before any such trans­ substitute amendment to provide quality its assent to the renewal of separate and portation may be ordered. As a related education to all schoolchildren with a unequal school systems, divided along matter, it would require any local school minimum of busing, as well as protect­ racial lines. board which has been directed by a court ing the legitimate concerns of school dis­ To let ourselves confront such a choice to propose a plan to remedy a finding tricts which have not been found guilty is to ignore the very real alternatives of­ of de jure segregation to likewise give of practicing segregation, is a positive fered by my substitute amendment. I first priority to all methods of achieving and responsible response to the issues urge its adoption. In accepting this sub­ desegregation which stop short of bus­ before us. stitute amendment the Senate can speak ing. We should make every effort to avoid This amendment is consistent with the clearly for those fundamental principles busing unless it is absolutely necessary. three goals I outlined at the outset of embodied in our Constitution, for quality This part of my amendment would re­ my statement: education and for an avoidance of un­ quire that both the district courts and Protection of the Constitution, adher­ necessary busing when possible. This is the local boards involved in planning ence to the rule of law and respect for the where the Senate should be. This is where remedies to cure prior acts of govern­ proper role of our courts in our democ- the country should be. ment whichLlm})OSed·segregation make racy. .' Mr. GURNEY. Mr. President, I think every effort to·mlnim1ze.0i" eliminate the Provision of quality education to all the most that can be said about the transportation of students. •...• i.·.• students,without regard to race. amendment of the Senator from In- 14864 CONGRESSIONAL RECORD-SENATE May 15, 1974 diana-which, of course, is in the nature the House bill and that was passed by an Mr. GRIFFIN. If there is merit to the of a substitute for the amendment of the overwhelming margin. language proposed by the Senator from Senator from Florida-is that it is a pro­ Of course, this amendment would pre­ Indiana it seems to me that he should busing amendment. This is a fine busing vent the Senate---or may prevent the seek to add it to the Gurney amendment amendment, and this will secure the fact Senate, depending Upon what it wishes or seek to insert it at another point. But that there will be no antibusing action to do-from voting on the merits, as to it should not be offered as a substitute. this year. whether they ought t{) have a neighbor­ Mr. BAYH. Mr. President, will the Everybody in the Senate knows that hood school bill or continue busing. Senator 3'ield? the amendment proposed by the Senator Mr. GRIFFIN. Mr. President, will the Mr. GURNEY. I will yield on the time from Florida is an exact duplication of Senator yield for an observation? of the Senator from Indiana. the language offered in the House educa­ Mr. GURNEY. Yes, I yield to the Sena­ Mr. BAYH. In essence, that has about tion bill, the so-called Esch amendment, tor from Michigan. as much effect as my amendment has a very carefully drawn antibusing Mr. GRIFFIN. It is very interesting because I do not have any time left. amendment--or, to put it another way, that this proposal is offered in the na­ Mr. GURNEY. I see other Senators an amendment designed to preserve the ture of a substitute. May the junior who wish to discuss the matter. I yield neighborhood school system in the Senator from Michigan direct a question to the Senator from Tennessee. United States and to prevent the massive to the Senator from Indiana. Is it the The PRESIDING OFFICER. The busing which is now going on. purpose of the Senator to completely Senator from Tennessee is recognized. The pending amendment has been knock out the Gurney amendment? Mr. BROCK. Mr. President, I think it carefully drawn to encompass the basic Mr. BAYH. That is the effort. should be pointed out that we have been legal decisions that have been made in Mr. GRIFFIN. That is the purpose of up and down this hill a number of times. the field of segregation and antisegrega­ the Bayh amendment? Every time we have seen language of this tion since the Brown case. All the land­ Mr. BAYH. Yes, it is a substitute. sort submitted to the Senate and it has mark cases of law on desegregation and Mr. GRIFFIN. It would absolutely been passed, we see the fruits of our antisegregation are carefUlly preserved eliminate the Gurney amendment? labors go to conference, and the Sen­ in my amendment. Mr. BAYH. I do not agree with the ate and the House refuse to do anything Also, the amendment is carefully drawn interpretation of the Senator. about a problem that exists. in order to permit the students to go to Mr. GRIFFIN. I want to be sure we The Senator from Indiana has not schools that are closest to their neigh­ know what the Senator from Indiana is tried to hide his intention. He has sup­ borhoods, or next closest, and it very seeking to do with his amendment, which ported an amendment to deal with the carefully sets out remedies for the court is a substitute for the Gurney amend­ problem of busing. This amendment does to follow in determining whether or not ment. absolutely nothing to change the situa­ the children shall go to the school closest Mr. BAYH. That is accurate. tion as it exists, the abuse of our to them or the school next closest to Mr. GRIFFIN. It is not additional lan­ children. This amendment does violence them. guage; it would completely knock out to our efforts to achieve any remedy for The amendment offered by the Senator the Gurney amendment. Is that correct? the schoolchildren of America. from Indiana, I suppose, could be best Mr. BAYH. The Senator from Indiana The courts have asked us time and termed a very simple amendment, in all said that he is opposed to the Gurney time again: What is your answer or sug­ the sense of that word. It is a simple amendment, and that he does not want gestion if you do not like busing? The amendment. It does not do anything. any part of it, with aU respect to the Senator from Florida and I, and Mem­ distinguished Senator from Florida. bers in· the House who have voted for It speaks in section 901 (al, the first this bill, have presented a program. If section, about alternative methods, Mr. GRIFFIN. I just want to establish what is at stake. I wonder if the Sena­ Senators do not like it come up with whether the court finds all alternative something else, but not a device to keep remedies to be inadequate. Any careful tor from Florida would permit me to make a further observation? practicing this kind of coercion on the lawyer who has studied the court de­ children of this country. That is the ef­ cisions on segregation and desegregation Mr. GURNEY. Indeed so. Mr. GRIFFIN. Of course, if the Senate fect of the Bayh amendment. and busing in the last 2 years will Mr. President, I hope the amendment realize that that means absolutely really wants to do something about the problem of busing, the only way we can is rejected. nothing. The courts have nothing to fol­ Mr. GURNEY. I thank the Senator low there. The language is meaningless. really be sure that something will be done is to adopt the so-called Esch from Tennessee for his observations. In the next section, subsection (bl of amendment, which has already passed Also I would like to press a point made section 901, it provides that the court the House, and which is now before the by the distinguished Senator from Ten­ shall find that a plan minimizes the Senate-precisely the same language­ nessee, the Senator from Michigan, and transportation of students. Of course, in the form of an amendment by the this Senator that this is a ploy to prevent that does not mean anything, either. It Senator from Florida. the Senate from voting up and down on does not mean anything because it does Regardless of whether the Bayh the issue of busing, one of the most stir­ not provide any guidelines; it does not ring issues in the United States today, provide any kind of standards for a court amendment sounds like an anti-busing amendment or not, and regardless of and, of course, an issue that has been to follow. A court can do exactly what present with us for a number of years. it wants to do and follow the same prac­ whether it would have any effect, the fact is, if we fail to put the Esch language Those of us who have lived with bus­ tices, and of course it will follow the ing all these years understand the situa­ same practices it has followed through into the Senate bilI by adopting the Gur­ ney amendment, the conferees will be tion. the years in the busing decrees that are The PRESIDING OFFICER. The time now throughout our land-that is, free to eliminate in conference not only the Esch amendment but the Bayh of.the Senator has expired. All time for throughout the Southern part of our the proponents has expired. There are 5 country and a few of the Northern States amendment as well. Does the Senator from Florida agree? minutes remaining to the manager of the as well. bill. So it is quite obvious what the plan of Mr. GURNEY. Yes, the Senator from Mr. PELL. I yield the Senator 3 min­ action of the opposition is. As a matter Florida certainly thanks the Senator utes. of fact, the Senator from Florida has from Michigan for his observation be­ Mr. JAVITS. Mr. President, I do not been wondering all day what the opposi­ cause that is precisely what will be want time myself, but I yield myself one tion is going to do, and now he knows: done. half-minute on the bill to state the fol­ that is, to offer a very simple pro-busing Mr. GRIFFIN. So, those Senators who lowing. amendment, a pro-busing amendment by really seek to do something about bus­ The PRESIDING OFFICER. The Sen­ the Senator from Indiana which, of ing would be moving in the wrong direc­ ator from New York is recognized. course, would insure that we are going tion by voting to put a substitute in Mr. JAVITS. If the arguments are not to have aU the busing we have had here­ place of the Gurney amendment. Would completed I hope we might yield an equal tofore, which would knock out the very the Senator agree? amount of time fl'om the time on the bill carefully drawn amendment that is in Mr. GURNEY. Yes, I agree. to the Senator from Florida and the Sen- May 15, 1974 CONGRESSIONAL RECORD - SENATE 14865 ator from Indiana; and I would suggest it, we will have ducked our responsibility the same basis that he was willing to 10 minutes each, if that Is satisfactory. once again. yield to me a moment ago. I shall be glad The PRESIDING OFFICER. The Sen­ I would hope that the Senate, when to discuss the amendment with hInl. I ator from Florida isrecognized for 3 ad­ it votes upon this at the appropriate wish we had an hour instead of a few ditional minutes on the time of the Sen­ time, would realize that the better way minutes each, because I know he feels ator from Rhode Island. to face up to this proposition would be to very strongly about it. But as the law is Mr. JAVITS. And we yield him 7 min­ vote down the Bayh amendment and now, if a court finds a school district that utes on the bill. then vote for or against the Gurney is guilty of de jure segregation, it has The PRESIDING OFFICER. The Sen­ amendment, and express themselves so in some ordered a plan which would bus ator is recognized for 10 minutes. their constituents back home would children back and forth into and among Mr. GURNEY. I thank the Senator understand how they feel about the ques­ those school districts that may not be from New York. tion of busing. guilty of de jure segregation. Mr. President, I think the point we I yield now to the Senator from Ten­ Mr. President, I do not have very much must understand here, as I was saying a nessee. patience with a school board that sets moment ago, is that this amendment of Mr. President, how much time do I about segregating and providing second­ the Senator from Indiana, in the nature have remaining? class educational opportunities for of a sUbstitute, is simply a ploy in order The PRESIDING OFFICER. The Sen­ schoolchildren, but I do not see why to prevent the Senate of the United ator has 6 minutes remaining. those school districts that are not guilty States from voting on this all-burning, Mr. GURNEY. I reserve my time and of such acts should have to help pay the all-compelling, all-pervasive issue of will let the Senator from Indiana take price of providing quality education in school busing throughout the United the floor. the offending school districts. My amend­ States. I would think this is not a very The PRESIDING OFFICER. The Sen­ ment would prohibit that very thing. It happy state of affairs. We have. been ator from Indiana has 10 minutes. Does says, "If you are guilty, you have to arguing this amendment since 9 o'clock he seek recognition? adopt all necessary remedies," But if this morning. Mr. BAYH. Mr. President, I listened you are not guilty, then under my The amendment certainly is a worthy with great interest to the distinguished amendment you cannot be forced to bear one; it is worthy of argument, and it Senator from Florida discuss the amend­ the burden of those who are. has brought forth good argument by the ment of the Senator from Indiana and Contrary to what the Senator from opponents of the amendment as well as refer to it as a ploy. One of the things Florida (Mr. GURNEY) has said, it seems the proponents of the amendment. I have enjoyed most in my 12 years in to me equitable to conclUde, "If you are But we should be able to vote up and the Senate is that individual Members guilty of providing second-class educa­ down on a concrete measure that will do of this body, like individuals throughout tion, then the school district which has something about busing. We should be our Nation, have the free opportunity to so offended has to get right, has to obey able to express ourselves on this point express themselves and have the free the law, has to obey the Constitution," so that we can go back and face our opportunity of assessing the relative It does not seem equitable to me to say constituents in Indiana and in Florida, merits of an issue as they see it. To sug­ to all the surrounding school districts, where there is or is not busing, and say gest that this amendment is a ploy is an "Even if you have not segregated, even that we are for it or against it. Of course, inaccurate assessment, It is, indeed, an if YOU have not provided second-class we have no opportunity to do it at all in expression of my very strong opposition education, we are going to make you help this ploy which has been offered by the to the amendment of the Senator from the other districts get right." I say to the Senator from Indiana to prevent the Florida. I have made no bones about that. Senator from Florida that is a significant Senate from having an up-and-down I am against the proposal of the Sena­ difference. vote on a very important amendment, tor from Florida for two basic reasons. I reserve the remainder of my time. carefully fashioned to go into all the First, his amendment says that, even Mr. BROCK. Mr. President, will the facets of busing. under the most tragic circumstances, Senator yield me 3 minutes? I think it is a shame and not worthy even under the most flagrant inequities Mr. GURNEY. I yield 3 minutes to the of the Senate that we are now in this of de jure segregation, where local offi­ Senator from Tennessee. sort of a position. We have a good cials have contrived to provide second­ The PRESIDING OFFICER. The Sen­ amendment here by those of us who be­ class educational opportunities for the ator from Tennessee is recognized. lieve busing is not the way to further children of their school districts, they Mr. BROCK. Mr. President, perhaps education or race relations. We think we will only go so far in being required to the Senator from Indiana does not like have an amendment that complies with remedy de jure segregation, even if the the use of the word "ploy," I will use a the leading cases of Brown against Board courts have saId they must go further, to different word. I think this amendment of Education, and the Swann cases that provide quality education. Where there is a "copout," because, if it passes, it were the landmark cases that came out is de jure segregation, the court has to completely eliminatss the opportunity of North Carolina, and all the other make an assessment of how far to go in for the Senate of the United States to cases that touched on the question of remedying it. We cannot, sitting here, segregation and desegregation. face up to the question the American make that determination. people have been asking for 3 years, What this amendment does is to give The second shortcoming of the Gurney since the Swann case. Time and again the U.S. district courts some guidelines amendment is that the amendment we have tried to bring this question be­ and rules and regulations by which they would reopen all the cases that have fore the Senate. The Senator is aware of can make these decisions in cases that been laid to rest--20 years of past ex­ it. He is chairman of the subcommittee come before them on whether school dis­ perience, communities that have resolved of the Committee on the Judiciary which tricts will continue to have all kinds of the problem, provided quality education handles this matter. We cannot get the busing. As it is now, they have no rules for poor and rich, black, white and Chi­ and regulations. All they have are broad measure to the floor. We cannot debate cano. All that would be reopened, with the issue. The last time we had an op­ decisions from the Supreme Cow·t. The all that means, and I think that would U.S. Congress has never acted upon the portunity, as the House voted 2 weeks be tragic. ago, to do something about the problem question of busing as a means of de­ I would like to point out to the Senate segregation, the question of busing as a of busing, in what the Senator and I may that my amendment does deal very spe­ or may not agree was in a responsible means of maintaining or not maintain­ cifically with a change-- ing the racial balance or imbalance, be­ fashion, those who opposed any action cause we have never set forth any rules Mr. GURNEY. Mr. President, will the whatsoever on the question of busing en­ and regulations. Senator yield? gaged in what is charitably called ex­ But now we have an opportunity. A Mr. BAYH. Some Federal district tended debate, and they talked the bill bill that was offered in the House was courts have required cross-district bus­ to death, and we had no occasion or op­ passed overwhelm.1ngIy and now we have ing. portunity to vote it up or down. before the senate the very same measure Mr. GURNEY. Mr. President, will the The Senator from Indiana's amend­ and the senate. should be able to vote Senator yield? ment would do exactly the same thing, up or down. However, U the senate votes Mr. BAYH. If the Senator will per­ with a different parliamentary device. on this substitute and votes in favor of mit me, I will be glad to yield to him on He would prevent the Senate from ad- rr4866 CONGRESSIONAL RECORD-SENATE 197.~ ! lI-fay 15, ; dressing the question of how we deal I get the message extremely clearly However, I cannot accept it. Under with a problem that does exist-and that the Senator from Indiana does not his plan, nobody would get equal oppor­ there is no question that it does exist. agree with my amendment. However, he tunity. The amendment may gain votes The Senator's own State has suffered has a simple way of expressing himself for some Senators. Talk about a copout, from Court-ordered plans. Certainly my on that, because he can vote nay on that I am not the one who is copping out. State has. I cannot speak for his, but I amendment when it comes up, and allow Mr. BROCK. Mr. President, will the surely can for mine. The record is re­ other Senators to vot~ as they desire on Senator yield? plete with examples of absolute tragedy the amendment yes or no, instead of re­ The PRESIDING OFFICER. The Sen­ in the lives of the children of my State. sorting to this ploy. at.or from Indiana has 2 minutes remain­ I do not see how I can stand before this I think the Senator from Tennessee ing. There is no other time available. body or the people of Tennessee and say used a little better expression when he Does the Senator from Indiana yield I am simply not going to take care of used the term "copout." back his time? something that is so damaging to the However, this kind of amendment, Mr. BAYH. No; if I have 2 minutes lives of the people of my State. which has no meaning at all, and is en­ remaining, I will use it. I will use it to Yet what the Senator from Indiana tirely meaningless, is designed to pre­ suggest that if my voice got a little loud would ask us to do by voting for his vent the Senate from voting for a good, when directed at the Senator from Ten­ amendment is to refuse to exercise our broad antibusing, n~ighborhood school nessee or the Senator from Florida, I constitutional responsibility by voting on amendment. hope that they will not interpret that as what we do mean by equality of oppor­ The PRESIDING OFFICER. The time an assault on their integrity or on their tunity. of the Senator has expired. desire to do what they think they are If the Senator does not like the Gur­ The Senator from Indiana has 5 min­ accomplishing. ney amendment, let him offer something utes remaining. I happen to think that their amend­ that will address the problem, but not Mr. BAYH. Mr. President, I have great ment is designed not to stop busing, but offer an amendment which would, if respect for the Senator from Florida. He to give the school boards the tools to take adopted, deny Senators the privilege of has great wisdom. However, I suggest to us back 100 years. voting on the Gurney amendment up or him that he should confine himself to I do not want separate-but-equal any­ down. That is where I find fault with the what has happened in the State of Flor­ thing. amendment. We have been on this route ida, not to what has happened in the Mr. GURNEY. Mr. President, will the too many times. It is about time that the State of Indiana. Senator yield? Senate faced up to its responsibility by As a matter of fact, I have spent a Mr. BAYH. Mr. President, I yield to voting on the merits of the case. good deal of time and studied the prob­ the Senator from Florida. Mr. GURNEY. Mr. President, I yield lems of Indiana a little more closely Mr. GURNEY. Mr. President, I cer­ 1 minute to the Senator from Rhode than did my friend the Senator from tainly did not think that the Senator Island (Mr. PELL) . Florida. from Indiana was assaulting my in­ Mr. PELL. Mr. President, I have I suppose that if I were going to "cop tegrity. I did think that he was assault­ studied the amendment of the Senator out," as the distinguished Senator from ing my amendment. from Indiana. What disturbs me is the Tennessee calls it, I would vote for the Mr. BAYH. The Senator from Florida emphasis on the words "de jure." I re­ Gurney amendment. That would make is exactly right. member the discussion on the Stennis many people in Indianapolis happy. The PRESIDING OFFICER. The ques­ amendment and all the wounds that That would make the school board tion now recurs on the amendm·ent. were opened up then, which I had hoped happy. They were not opposed to busing Mr. BAYH. Mr. President, I ask for had been laid to rest, and which would when they were busing black children the yeas and nays. be opened up again by the words "de past white schools and white children The PRESIDING OFFICER. Is there a jure." Ifit were "de jure" and "de facto," past black schools. I think that situa­ sufficient seCOnd? (Putting the question.) it would be different. tion is bad whether it is in Florida, Ten­ There is not a sufficient second. For that reason I feel compelled to nessee, or Indiana. The yeas and nays were not ordered. vote against the amendment. My amendment would apply in the in­ The PRESIDING OFFICER. The ques­ Mr. BAYH. Mr. President, I would be stance of Indianapolis, in the inner city tion now recurs on the amendment of glad to change it to include all segrega­ of Indianapolis, the Indianapolis public the Senator from Indiana (Mr. BAYH). tion, but the reason the words "de jure" school system. Mr. BAYH. Mr. President, a parlia­ were emphasized is that only de jure seg­ All my amendment would do would be mentary inquiry. regation has been dealt with by the to instruct the Indianapolis school board The PRESIDING OFFICER. The Sen­ courts, or by Congress, as far as that is to come up with a plan to provide for ator will state it. concerned. integrated schools, a plan that uses as Mr. BAYH. Mr. President, in the Mr. PELL. I think reference to it does small an amount of busing as possible, unanimous consent request, was this open up many wounds that we had hoped and to explore and study the situation amendment not located, as far as a vote were almost healed over. with respect to prOViding a plan that is concerned, just prior to the vote on the Mr. GURNEY. Mr. President, I would would result in adequate, integrated edu­ Gurney amendment, to take place at 5 like to point out that in Indianapolis, one cation. o'clock? of the principal cities of the State of the Mr. MATHIAS. Mr. President, I ask The PRESIDING OFFICER. The Sen­ author of this amendment, the Court unanimous consent that Colby King, ator is correct. plan would take 20,000 students out of Terry Barnett, and Quincy Rogers, a Mr. GURNEY. Mr. President, as I re­ Indianapolis and send them into the member of the staff of the Judiciary call, we attempted to work out a unani­ suburbs, many miles outside the city, at Committee, be granted the privilege of mous-consentrequest. However, I do not a cost of many millions of dollars. the 1100r during the debate. think that we ever did. Is that correct? In addition, this Court plan proposes The PRESIDING OFFICER. Without The PRESIDING OFFICER. The to close down a total of 29 elementary objection, it is so ordered. Chair is adVised that there is a unani­ and high schools, all under the Supreme Mr. BAYH. Mr. President, I think it is mous-consent agreement. Court plan. This amendment, this sub­ rather obvious what the Senator from The question now recurs on the stitute proposed by the Senator from In­ Tennessee is after, because I have stud­ amendment of the Senator from Florida. diana, will not do anything to stop that ied that constitutional amendment that Who yields time? business at all. My amendment will stop has been advertised around my State and Mr. ERVIN. Mr. President, I was Un­ that business because what it is designed all over the country as being an antibus­ der the impression that I was going to to do is to preserve neighborhood schools ing amendment. be permitted to have some time on my and stop massive busing all around Indi­ It does not even contain the word amendment at this time. anapolis. "busing." It does not contain the word The PRESIDING OFFICER. The I say that this is a probusing amend­ "transportation." It goes back to the old Chair will advise the Senatorfrom North ment. It refuses to allow the Senate to segregation system that we fought a civil Carolina that he understands that· by face up to its duty and vote UP or down war to prohibit. Maybe the Senator from previous order the amendment of the on the question of whether we will have Tennessee can support that as an anti­ Senator from North Carolina will be neighborhood schools or will have busing. busing constitutional amendment. called up at 40·clock. IJllay 15, 1974 CONGRESSIONAL RECORD - SENATE 14867 Mr. GURNEY. Mr. President, I yield 2 Joint Resolution 14, a constitutional and children of Tennessee who have suf­ minutes to the Senator from Tennessee. amendment to forbid the assignment of fered the inconveniences and difficulties The PRESIDING OFFICER. The Sen­ children to a particular school on the of forced busing. ator from Tennessee is recognized for 2 basis of race, color, or creed. It has be­ It has been too long since we seriously minutes. come painfully obvious that my amend­ comidered what forced busing has done Mr. BROCK. Mr. President, I may ask ment faces obstacles, and the two-thirds to our schools and our way of life. Now the Senator from Florida for some addi­ vote necessary for passage probably is is the time to take action, and I hope tional time. not yet there. During these 2 years par­ the Senate will act favorably on this Mr. GURNEY. Mr. President, I will ents have pleaded for relief, children measure and let us find some reasonable yield the Senator from Tennessee 5 min­ have been abused, the courts have asked alternatives now, once and for all, to the utes. Congress to establish priorities for ar­ busing of our school children to achieve Mr. BROCK. Mr. President, I thank riving at equality of opportunity, and yet a racial balance. Let us for once remem­ the Senator from Florida. nothing has been done. ber our families, and our total education­ Mr. President, I am not going to spend Now, I say to my distinguished col­ al standards. any time debating the constitutional leagues that I hope that we finally have Every American deserves a right to a amendment. However, I find it interest­ the guts to face up to this issue. good education. We must now formulate ing to note how the Senator from In­ For much too long the Congress has that good education with programs which diana reads the English language when been sitting back and allowing the bus­ will offer every person, every child, black he says that we are trying to reverse the ing of children across town, out of their or white, rich or poor, the quality and history of the country and go back 100 neighborhoods, in the name of achieving equality of education that he richly years. a racial balance. The House took a posi­ deserves. I think it is an amendment that says tive step. Now we must do the same. I thank the Senator from Florida for very simply that no child shall be denied One would have to live through it to yielding, and I am delighted to have the an opportunity to attend his neighbor­ understand the problems and difficulties privilege of cosponsoring this amend­ hood school, in effect, on the basis of that this type of busing that we have to­ ment, because I think it is a responsible race, creed, or color. I thought that was day has caused to entire families, and step toward restoring equity and equality what the Supreme Court did in 1954. I entire communities. I fear that many of to all of our children. thought that was what we were trying to my colleagues simply have not seen this Mr. JOHNSTON. Mr. President, will do ever since. first hand. It is disappointing that con­ the Senator from Florida yield? Mr. President, the problem of busing gressional hearings could not have been Mr. GURNEY. I yield to the Senator as presently implemented has an explicit held in all of the cities affected by court from Louisiana. racial character. We cannot put a child ordered busing. The view is much differ­ Mr. JOHNSTON. I thank the Senator on a bus without determining his color. ent there than here In Washington. for yielding. I have a rather important And the direction of the bus is deter­ The PRESIDING OFFICER. The point, I think, that I would like to clear mined by whether or not a child is black Senator's time has expired. up in my mind, relative to the conditions or white. That is discrimination. That Mr. BROCK. Will the Senator from necessary to reopen proceedings under is racial discrimination. That is a viola­ Florida yield me 3 additional minutes? section 818 of the amendment. Section tion of the law by any definition of what Mr. GURNEY. I yield the Senator 3 818, of course, authorizes the reopening I think the Constitution clearly states, more minutes. of cases in order to comply with the unless color blindness is involved. Mr. BROCK. Two years ago, the Sen­ provisions of this title. I think the reason I am so distressed by ate refused to face up to this issue. Simi­ As I read the amendment, it is in four the amendment of the Senator from lar legislation to that which we are con­ parts: part A, policy and purpose, part B, Indiana is that we have been trying so sidering was killed by a filibuster, and unlawful practices, part C, enforcement, long and so diligently, Republican and the merits of court ordered busing were and part D, remedies. Democrat, to bring to the floor of the not even discussed even though the Su­ As I read not only the language of the Senate a debate on the subject of equal­ preme Court had almost begged the Con­ amendment but the intent of the amend­ ity of opportunity for all the children gress for guidelines. ment, it is actually a measure to correct of this land. I know some have been re­ Since that time, the climate has unlawful practices, that is to say, a denial luctant to engage this issue because of changed, and the people in my State of of equal educational opportunity, and the emotionalism involved in such words Tennessee are sick to death with busing the necessary trigger for reopening of as "court-ordered busing". Yet, through­ and they want, they demand action. cases would be a denial of educational out my part of the country and in other The greatest part of this legislation opportunity. sections as well, pupil attendance ill which we are considering is that it will Does the Senator understand the ques­ major metropolitan areas continues to provide alternatives. It states that racial tion, and if so, is that correct? decline as does pal'ental support of public segregation of school children must not Mr. GURNEY. Yes, I would think that education. be remedied by busing unless certain that would be a good way to describe it. We have had a fall-off of member­ alternatives have proved ineffective. This Mr. JOHNSTON. So that, for example, is the key. This is the step we have been if a segregated school system were sued ship in the PTA's of Nashville from 50,­ looking for. This is what thousands of 000 to 30,000 since 1970. When ~'-ou have 10 years ago, and a court ordered rem­ that kind of a situation, and when you parents and children have wanted-an edy was fixed, fashioned, and imple­ alternative. mented so as to extirpate any unlawful have a rapid decline in pupil attendance, We have stood by for much too long the issue cannot be avoided. It must be discrimination, so as to do away with any while our citizens have cried out for help. denial of equal educational opportunities faced and faced now in a constructive They have not asked the impossible. way. I know there are those who feel that as those are defined in part B of the busing is the sole cause of declining at­ They have not asked to go back to the amendment, and if there was no denial of tendance and parental support. Cer­ old days, where busing was used for such equal educational opportunities, tainly this is a major factor, but it is not segregation, because what was wrong then it would not be possible, under sec­ the only one. Others have felt that any then is wrong now, for the same reasons. tion 818 of the bill, to modify that court effort to limit forced busing would be a All they have wanted is something that order, even though it might involve bus­ step backward in the fight for civil can give them an altemative. ing, is that correct? This measure will go a long way to­ Mr. GURNEY. I am not sure I exactly rights. I wonder if either side is truly ward doing just that. This measure will understand the question posed by the addressing the issue. To me, the basic help restore our neighborhood school Senator. Could he clarify it a little more question is whether or not we are pre­ concept which is one of the main areas for me? pared to commit ourselves to the quality of deterioration with forced busing. Mr. JOHNSTON. Yes. To go into a and equality of education for all chil­ There are many guidelines connected little more detail, part B of the amend­ dl'en, black and white, rich and poor, with this legislation, but I think for ment defines unlawful practices. North and South. once we have something that stands a Mr. GURNEY. Yes. Nearly 2 years ago, out of a sense of chance of passage, and added to that, Mr. JOHNSTON. Nowhere in that list sheer frustration, I introduced Senate f!omething that can benefit the families of unlawful practices is cross-town bus- 14868 CONGRESSIONAL RECORD - SENATE May 15, 197ft, ing included. Unlawful practices are, matter are found in the 14th amend­ spective parents from among the p~blic generally, the denial of equal educa­ ment, section I, which provides, among schools and classes avallable for the instruc­ tional opportunity. Are we together so other things, that: tion of students of their ages and educational far? standings. No State shall ... deny to any person with­ "SEC. 1202. No department, agency, officer. Mr. GURNEY. Yes. in Its jurisdiction the equal protection of the or employee of the United States empowered laws. Mr. JOHNSTON. All right. Part B to extend Federal financial assistance to any deals with enforcement, and talks about Section 5 of the 14th amendment program or activity at any public school by civil actions and other kind~ of actions, states that: way of grant, loan, or otherwise shall with­ and the trigger for any kind of enforce­ hold or threaten to Withhold, such financial ment in sections 807 through 811, inclu­ The Congress shall have power to enforce, assistance from any such program or activ­ by appropriate legislation, the provisions of ity on account of the racial composition of sive, is a denial of equal educational this Article. opportunity. Are we together so far? the student body at any public school or in Mr. GURNEY. Yes, I think I follow the Mr. President, tile amendment which any class at any publlc school in any case my cosponsors and I now offer is in per­ whatever where the school board operating Senator. such public school or class maintains, with Mr. JOHNSTON. All right. Now, the fect harmony with the Constitution. The respect to such school and class, a freedom of important part here is part D, dealing equal protection clause is the simplest choice system. with remedies, and the key provision clause in the CongtitutiDn. It merely says "SEC. 1203. No department, agency, officer, there is section 814, which states that to a State, or employee of the United States empowered to extend Federal financial assistance to any in formulating U a remedy for a denial of You must treat all pcrsons In llke circum­ equal educational opportunity" the stances In a W;ce manner. program or activity at any public school by way of grant, loan, or otherwise shall with­ courts must do a certain list of things, This amendment is fundamentally an hold, or threaten to withhold, any such Fed­ seven in number, in a certain order, again 2mendment which provides that where eral financial assistance from any such pro­ dealing with the denial of equal educa­ there is a Echool board that establishes gram or activity at such public school to tionalopportunity. a freedom of choice plan, the Federal coerce or Induce the school board operating Mr. GURNEY. Yes. Government will have no power to inter­ such public school to transport students Mr. JOHNSTON. Are we still together? fere in that school district. It recognizes from such public school to any other public Mr. GURNEY. Yes. that a freedom of choice plan is the most school for the purpose of altering in any Mr. JOHNSTON. All right. Then we way the racial composition of the student perfect example of a plan which treats body at such public school or any other pub­ come to section 818, which states that on all children, of all races, equally. lic school where the school board operating application of an educational agency, et Mr. President, I ask unanimous con­ such publiC schools maintains with respect cetera, the case shall be reopened and sent that a copy of the amendment be to such schools a freedom of choice system. modified to comply with the provisions printed in the RECORD. "SEC. 1204. No department, agency, officer, in this title. There being no objection, the text of or employee of the United States empowered Mr. GURNEY. Yes. amendment No. 1239 was ordered to be to extend Federal financial assistance to any Mr. JOHNSTON. The point is that the printed in the RECORD, as follows: program or actiVity at any publlc.school In provisions of this title dealing with any public school system by way of grant, TITLE IX-PUBLIC SCHOOL-FREEDOM loan or otherwise shall withhold or threaten denial of equal educational opportunity OF CHOICE to v.:lthhOld any such Federal financial as­ and the title does not prohibit busing SHORT TITLE sistance from any such program or activity but simply prohibits busing as a remedy SEC. 901. That this title may be cited as at such publ1c school to coerce or induce any for denial of equal educational oppor­ the "Student Freedom of Choice Act". school board operating such public school tunity, the point being that a denial of system to close any public school, and trans­ equal educational opportunity, as those FREEDOM OF CHOICE AMENDMENT TO THE CIVIL fer the students from it to another publiC RIGHTS ACT OF 1964 school for the purpose of altering in any way terms are defined in part B of the bill, SEC. 902. The Clv!l Rights Act of 1964 (42 1s a necessary trigger for any modifica­ the racial composition of the student body at U.S.C. 1971-l975a-1975d, 2000a-2000h-6) is any public school where the school board tion undertaken pursuant to section amended by adding at the end thereof the operating such public schools maintains with 818-- following new title: respect to such schools a freedom of choice The PRESIDING OFFICER (Mr. "TITLE XII-PUBLIC SCHOOL-FREEDOM system. HELMS). The hour of 4 o'clock haVing OF CHOICE "SEC. 1205. No department, agency, officer, arrived, under the previous order, the "SEC. 1201. As used In this title- or employee of the United States empowered distinguished Senator from North Caro­ "(a) 'State' means any State, district, Com­ to extend Federal financial assistance to any lina (Mr. ERVIN) is recognized to call monwealth, territory, or possession of the program or activity at any public school in up his amendment to the Gurney United States. any publiC school system by way of grant, " (b) 'Public school' means any elementary loan, or otherwise shall withhold or threaten amendment. to withhold any such Federal financial as­ Mr. JOHNSTON. Mr. President, will or secondary educational institution, which is operated by a state, subdivision of a State, slstanoe from any such program or activity the Senator from North Carolina yield or governmental agency within a state, or at such public school to coerce or induce me just 1 minute? any elementary or secondary educational in­ the school board operating such public school Mr. ERVIN. I hate not to yield 1 min­ stitution which is operated, in whole or in system to transfer any member of any publiC ute,but-- part, from or through the use of govern­ school faCUlty from the public school in Mr. JOHNSTON. I asked a question mental funds or property, or funds or prop­ which the member of the faculty contracts of the Senator and he is ready to say yes erty derived from a governmental source. to serve to some other public school for the "(c) 'School board' means any agency purpose of altering the racial composition or no. of the faCUlty at any pUblic school where Mr. ERVIN. I yield long enough for which administers a system of one or more public schools and any other agency which the school board operating such publlc the Senator to say yes or no. Is responsible for the assignment of student3 schools maintains with respect to such Mr. GURNEY. As I understand it, yes. to or within such system. schools a freedom of choice system. This is one of the things which is de­ "(d) 'Student' means any person required "SEC. 1206. Whenever any department, signed and will serve as a basis for re­ or permitted by State law to attend a publlc agency, officer, or employee of the United opening the proceeding. school for the purpose of receiving instruc­ States viola.tes or threatens to viola.te section tion. 1202, section 1203, section 120,1, or section AMEND;\1ENT NO. 1239 1205 of this Act, the school board aggrieved Mr. ERVIN. Mr. President, with the "(e) 'Parent' means any parent, adoptive by the violation or threatened Violation, or parent, guardian, 01' legal or actual custodian cosponsorship of Senators ALLEN, TAL­ of a student. the parent of any student affected or to be affected by the violation or threatened viola­ MADGE, and MCCLELLAN, and my col­ "(f) 'Faculty' means the admlnlskative league Mr. HELMS, I offer an amend­ tion, or any stUdent affected or to be affected and teaching force of a public school sY'5tem by the violation or threa,tened violation, or ment No. 1239 and ask unanimous con­ or a public school. any member of any faculty affected or to be sent that it be voted on immediately "(g) 'Freedom cf choice system' mear-s a affected by the violation or threatened viola­ after the vote on the GW'ney amend­ system for the assignment of stUdents to tion may bring a civ!l action against the ment. public schools and within public schools United states· in a district court of the The PRESIDING OFFICER. Is there maintained by a school board operating a United States complaining of the violation system of public schools in which the pUblic or threatened violation. The district courts objection? The Chair hears none, and schools and the classes It operates are open it is so ordered. of the United States shall have Jurisdiction to students of all races and in which the stu­ to try and determine a. civil action brought Mr. ERVIN. Mr. President, the con­ dents are granted the freedom to attend pub­ under this section irrespective of the amount stitutional provisions which relate to this lic schools and classes chosen by their re- in controversy and enter such Judgment or May 15, 1974 CONGRESSIONAL RECORD-SENATE 14869 isstte such order as may be necessary or ap­ public schools and classes available for the The bill is in perfect accord with the Con­ propriate to redress the violation or prevent instruction of students of their ages and stitution. ]\'loreover, It makes a substantial the threatened violation. Any civil action educatlonal standings." contribution to the constitutional ideals that against the United states under this section Sections 1202, 1203, 1204, and 1205 of the all Americans of all races shall be members of may be brought in the judicial district in bill forbid the Department of Health, Edu­ a free society and that none of them shall which the school board aggrieved by the cation, and Welfare to do any of these be the hapless and helpless subjects of ju­ violation or threatened violation has its prin­ things: dicial or bureaucratic oligarchies. cipal office, or the jUdicial district in which 1. To withhold, or threaten to withhold, The bill is designed to accomplish these any school affected or to be affected by the federal financial assistance from any public things by restoring freedom of choice to it:, violation or threatened vIolation is located, school operating under a freedom of choice rightful place in the law of the land, and b;1 or in the judicial distrIct in which a parent plan "on account of the racial composition of placing certain prohibitions upon federal of a student affected or to be affected by its student body." jUdges and executive officials with respect to the violation or threatened violation resides, 2. To withhold, or threaten to withhold, the busing of children, the closing of schools. or in the JUdicial district in which a student federal financial assistance from any public and the assignment of members of the facul­ affected or to be affected by the violation school operating under a freedom of choice ties of public schools to schools other than or threatened violation resides, or in the plan to coerce or induce the school board those in which they contract to teach. judicial district in which a member of a operating such public school to transport faculty affected or to be affected by the viola­ students from such public school to any Mr. ERVIN. Mr. President, when the tion or threatened violation resides, or in other public school for the purpose of al­ case of Swann versus Charlotte-Mecklen­ the judicial district encompassing the Dis­ tering in any way the racial composition of burg Board of Education was before the trict of Columbia. The United states hereby the student body at such pUblic school or Supreme Court, I prepared a brief at the expressly consents to be sued in any civil any other pUblic school. instance of the Classroom Teachers' As­ action authorized by this section, and ex­ 3. To withhold, or threaten to withhold, sociation of Charlotte and Mecklenburg pressly agrees that any Judgment entered or federal financial assistance from any school County. I med tilis brief as a friend of order issued in any such civil action shall board operating a freedom of choice system be binding on the United States and its to coerce or Induce the school board to close the court in conjunction with the dis­ offending department, agency, officer, 01' em­ any public school and transfer the students tinguished Senator from South Carolina ployee, subject to the right of the United from such public school to any other public (Mr. HOLLINGS) and with the distin­ States to secure an appellate review of the school or schools for the purpose of alter­ gUished former Representative from jUdgment or order by appeal or certiorari ing the racial composition of the student my state, Mr. Charles R. Jonas. as is provided by law with respect to judg­ body at any public school. This brief sets forth all the relevant ments or orders entered against the United 4. To withhold, or threaten to withhold, decisions relating to this question of the States in other civil actions in which the federal financial assistance fronl any school United States is a defendant. board operating a freedom of choice system busing of schoolchildren. The Federal SEC. 1207. No court of the United States to coerce or induce the school board to trans­ courts have taken charge of the public shall have jurisdiction to make any decision, fer any member of any faCUlty from the schools and are acting as school boards, enter any judgment, or issue any order re­ pUblic school in which the member' of the and the HEW bureaucrats have done the quiring any school board to make any change faCUlty contracts to serve to some other pUb­ same. For these reasons I ask unanimous in the racial composition of the stUdent lic school for the purpose of altering the consent that the brief be printed in the body at any pUblic school or in any class racial composition of the faCUlty at any pub­ RECORD. at any public school to which stUdents are lic school. There being no objection, the brief assigned in conformity with a freedom of Section 1206 of the bill empowers any choice system, or requiring any SCllOOI board school board or any parent of any student was ordered to be printed in the RECORD, to transport any students from one public affected or to be affected by any violation or as follows: school to another public school or from one threatened violation of any of the provisions [In the Supreme Court of the United States, place to another place or from one school of sections 1202, 1203, 1204, and 1205 to sue October Term, 1970) district to another school district in order the United States in the District Court of to effect a change in the racial composition AMICUS CURIAE BRIEF FOR THE CLASSROOM the United States, and obtain such relief "as TEACHERS' ASSOCIATION OF THE CHARLOTTE­ of the student body at any school or place may be necessary or appropriate to redress or in any school district, or denying to any IVlECKLENBURG SCHOOL SYSTEM, INCORPO­ the violation or prevent the threatened vio­ RATED student the right or privilege of attending lation." any public school or class at any public (No. 281, James E. Swann, et aI., Petitioners, school chosen by the parent of such student Section 1207 specifies that "No court of the Charlotte-Mecldenburg Board of Ecluca­ in conformity With a freedom of choice sys­ United States shall have jurisdiction to make tion, et aI.; No. 349, Charlotte-Mecklenburg tem, or requiring any school board to close any decision, enter any judgment, or issue Board of Education, et aI., Petitioners, v. any school and transfer the stUdents from any ordel' requiring any school board to James E. Swann, et aI., on writ of certiorari the closed school to any· other school for make any change in the racial composition to the U.S. Court of Appeals for the Fourth the purpose of altering the racial composi­ of the student body at any public school or CirCUit) in any class at any public school to which tion of the stUdent body at any public INTEREST OF THE AMICUS CURIAE school, or precluding any school board from students are assigned in conformity with a carrying into effect any provision of any freedom of choice system as defined in sec­ The Classroom Teachers' Association of contract between it and any member of the tion 1201 (g) of this Act, or requiring any the Charlotte Mecklenburg School System, faCUlty of any public school it operates school board to transport any students from Incorporated, is a non-profit membership or­ specifying the public school where the mem­ one public school to another public school ganization in corporate form, which includes ber of the faculty is to perform his or her or from one place to another place or from in its membership a substantial part of the duties under the contract." one school district to another school district 3,553 classroom teachers in the Charlotte­ in order to effect a change in the racial com­ Mecklenburg School System and which de­ Mr. ERVIN. Mr. President, I also ask position of the student body at any school votes itself to the advancement of public unanimous consent that a statement or place or in any school district. or denying education. The specific objectives of the or­ prepared by me explaining the amend· to any student the right or privilege of at­ ganization and its members are to promote ment be printed in the RECORD. tending any public school or class at any the interests of classroom teachers in the pUblic,school chosen by the parent of such Charlotte-Mecklenburg School System, and There being no objection, the ex­ student in conformity with a freedom of to secure to the students attending the planation was ordered to be printed in choice system as defined in section 1201 (g) schools of the System opportunities to the RECORD, as follows: of this Act, or requiring any school board achieve by quality education their highest EXPLANATION OF SENATOR ERVIN'S "ANTI­ to close any school and transfer any students potentialities. BUSING" AMENDMENT from the closed school tD any other school for The Classroom Teachers' Association of the Senator Ervin's amendment is exactly the the purpose of altering the racial composi­ Charlotte-Mecklenburg School System and same as S. 1737, introduced in this Congress tion of the student body at any public school, its members believe that the execution of by Senator Ervin and others and on which or preclUding any school board from carry­ the order of the United States District Court Subcommittee hearings were held in Feb­ Ing into effect any provision of any contract for the Western District of North Carolina ruary, 1974. between it and any member of the faculty of and the jUdgment of the United States Cir­ Section 1201(g) provides that "freedom of any public school it operates specifying the cuit Court for the Fourth Circuit affirming choice" means "a system for the assignment public school where the member of the fac­ such order in part seriously impair the edu­ of students to public schools and within ulty is to perform his or her duties 1mder the cational opportunities offered by the Char­ public schools maintained by a school board contract." lotte-Mecklenburg School System to the operating a system Of public schools in which Section 7 is sanctioned by Article In of students in its schools, and for this reason the public schools and the classes it operates the Constitution which empowers Congress the organization files this amicus curiae brief are open to students of.a11 races and in which to regulate the appellate jurisdiction of the in support of the position of the Charlotte­ the students are granted the freedom to at­ Supreme Court and both the original and Mecklenburg Board of Education, Which har­ tend public schools and classes chosen by appellate jurisdiction of all federal courts monizes with this view. ~heir respective parents from among the inferior to the Supreme Court. The parties to the proceedings in Nos. 281 14870 CONGRESSIONAL RECORD-SENATE May 15, 1974 and 349 have consented in writing to the CONSTITUTIONAL AND STATUTORY PROVISIONS sory desegregation decree. After hearing the 1iling of this brief, and the writings evidenc­ INVOLVED evidence In the case, the District Court found ing such consent have been filed with the The case Involves the first and second sec­ that the SCheol Board had complied with the Clerk. tions of the Fourteenth Amendment; the requirement of the Equal Protection Clause The members of the supreme Court bar first and second sections of Article III of the and denied the decree sought by them. who submit this brief in behalf of the or­ Constitution; and Title IV of the Civll Rights Swann v. Charlotte-Mecklenburg Board 0/ ganization do so without compensation in Act of 1964. These constitutional and statu­ Education, 243 F.Supp. 687 (1965). This rul­ the hope that they may aid the Supreme tory provisions are printed In the AppendiX. ing was affirmed by the Circuit Court. Swann v. Charlotte-Mccklenburg Board 0/ Educa­ Court to reach a decision which will restore STATEMENT OF THE CASE tr~""lquility to much troubled areas of our tion, 369 F.2d 29 (1966). land and enable the public schools operat­ A. The Charlotte-IlIecklenburg Public SchOOl B. The plan submitted by the Charlotte­ ing in them to function economically and ef­ System Mecklenburg Board. 0/ Education ficiently as educational institutions. The writ in No. 281 and the writ In No. SUbsequent to the decision of Green v. OPINIONS BELOW 349 present to the Supreme Court for review County School Board 0/ New Kent County, the judgment entered by the United States 391 U.S. 430 (1968), the plaintiffs filed a The opinion of the Court below consists Court of Appeals for the Fourth Circuit on of the opinion and judgment of the United motion In the cause seeking further deseg­ May 26, 1970, in the civil action entitled regation. (2a) States Court of Appeals filed May 26, 1970, James E. Swann and others, Plaintiifs, v. which are not yet reported and which appear Although It found as a fact that the "loca­ Charlotte-Mecklenburg Board of Education tion of schools In Charlotte has followed the in the Appendix (Volume 3, pages 1262a to and others, Defendants. For case of narration 1304a) . local pattern of residential development, in­ and understanding, James E. Swann and his cluding Its de facto patterns of segregation" In its opinion and judgment, the Court of assocl.ates In this litigation are hereafter Appeals reviewed and approved in part and (305a), and that the School Board members called the plaintiffS, and the Charlotte­ "have achieved a degree and volume of de­ remanded in part for further consideration Mecklenburg Board of Education is here­ segregation of schcols apparently unsur­ the rulings and findings made by the United after designated as the School Board. States District Court in the following orders passed in these parts and have exceeded t:t.c The School Board operatc3 the Charlotte­ performance of any school boards whose ac­ and documents: Mecl;Jenburg Publlc School System In Char­ tions have been reviewed in the appellate 1. Order dated February 5, 1970 (819a-839 lotte an? Mecklenburg County, North Caro­ court decisions" (311a-312a), the District a). as f\lnended, corrected, and clarified on lilla, polltlcal subdivisions of North Carollna Court resumed hearings in the case on the March 3, 1970 (921a). Charlotte, which Is the county seat or ground that the Green Case had changed 2. Supplementary Findings of Fact dated Mecklenburg County, Is Inhabited by 239,056 "the rules of the game." (312a) March 21, 1970 (1198a-1220a). persons who are concentrated within the 64 It is to be noted that subsequently the 3. Supplement"l Memorandum dated square miles embraced /by Its city limits, an District Court on its own motion reversed its March 21, 1970 (1221a-1238a). area larger than the District of Columbia. preVious findings that any racial imbalance JURISDICTION M~cklenburg County embraces 550 square in the Charlotte-Mecklenburg public schools The Supreme Court has jurisdiction to mIles, hac "u east-west span of 26 miles, a was the result of de facto segregation by review this ca.se by writ of ccrtiorari under north-sonLl spnn of 36 miles, and has a asserting that "there Is so much State action 28 U.S.C. 1254(1), and has accepted It for populatlOn of 352,006, exclusive of those re­ Imbedded In and shaping these events thr.t such purpose by granting writs to the peti­ siding Within the area embraced by Charlotte. the resulting segregation is not innocent or tioners In No. 281 and the petitioners in No. In the discharge of Its state-assigned 'de facto' and the resulting schools arc not 349. duties, the School Board operates 10 high 'unitary' or 'desegregated'." (662a) The QUESTIONS PRESENTED FOR REVIEW schools, 21 junior high schools, and 72 ele­ amicus curiae submits with all due deference mentary schools to house and instruct the that there Is no testimony in the record to This case presents the following questions sustain this particular finding. for review: 84,500 school children residing In Charlotte and Mecklenburg County. Of these school Pursuant to the orders entered by the Dis­ 1. Does a public school board comply with trict Court on April 23, 1969 (285a), June 20, the Equal Protection Clause of the Four­ children, 24,000, or 29 percent, are black, and 60,500, or 71 percent, are White. ApprOXi­ 1969 (448a), August 15, 1969 (579a), and teenth Amendment when It creates non-dis­ mately 95 percent of all the black children December I, 1969 (698a) , the School Board criminatory attendance districts or zones and who reside within the limits of the City of Illed desegregation plans (330a, 480a, 670a) assigns all children, black and White, to Charlotte live In predominantly blacl;: resi­ which were rejected by the District Court. neighborhood schools in the district or zone dential sections in northwest Charlotte and Meanwhile on December 2, 1969, the Court In which they reside without regard to their a SUbstantial portion of the other bluck appointed Dr. John Finger, a resident of race? children In Mecklenburg County reside in Rhode Island, as a special consultant to de­ 2. Does the Equal Protection Clause of the predomlnently black residential arcas ad­ vise a desegregation plan for the guidance Fourteenth Amendment empower a federal jacent to it. (293a-298a). of the Court, (819a) Dr. Finger had originally court to order a public school board to as­ Prior to Brown v. Board 0/ Education 0/ entered the case as a partisan witness for the sign children to the schools it operates to Topeka, 347 U.S. 483 (1954), the School Board plaintiffs, and for this reason a good case balance the student bodies In such schools operated the pUblic schools of Charlotte and can be made for the proposition that he racially or to bus children outside of non­ Mecklenburg County as racially segregated lacked the impartlallty which is desirable In discriminatory attendance districts or zones schools In conformity with the interpretation one selected for the task of aSSisting a judge to effect such purpose? then placed upon the Equal Protection Clause in keeping the scales of justice evenly bal­ 3. Does Title IV of the Civil Rights Act of of the Fourteenth Amendment. SUbsequent anced between adverse litigants. (1279a) 1964, which prohibits the assignment of stu­ to the Brown Case and prior to 1965, the While the District Court orders and tile dents to public schools to balance the stu­ School Board established an effective sys­ Scllool Board plans mentioned above shed dent bodies in such schools racially and to tem of determining admission to Its pUblic light on the School Board's devotion to the bus them from some schools to other schools schools on a non-racial basis. It did this, and neighborhood school concept, and Its ·reluc­ or from some school districts to other school thus convel·ted its formerly dual system into tance as an elected public body to engage In districts to effect such purpose, constitute a unitary system by establishing non-dis­ excessive and expensive busing of school appropriate legislation to enforce the Equal criminatory attendance districts or zones children, the subsequent School Board plan Protection Clause within the purview of the and assigning the school children subject t~ of February 5, 1970, and the SUbsequent DIs­ Fifth Section of the Fourteenth Amendment? Its jurisdiction to their neighborhood schools tl'ict Court order of February 5, 1970, relating 4. Does the order entered by the District irrespective of race. to It really illuminate the issues which now Court and affirmed In part by the Circuit Inasmuch as some of the attendance dis­ confront the Supreme Court. (726a-748a, Court usurp and exercise the authority of tricts or zones in rural Mecklenburg County 819a-839a) . the Charlotte-Mecklenburg Board of Educa­ and some of its suburban residential districts By this plan, the School Board proposed tion to devise and implement a non-discrim­ or zones In or adjacent to Charlotte are ex­ that attendance districts or zones sholIld tremely large, the School Board voluntarily be drastically gerrymandered in such a man­ inatory assignment plan conforming to the ner as to inclUde as many blacks as possible Equal Protection Clause, and require the established a transportation system for the in each district or zone, and that, all school Charlotte-Mecklenburg Board of Education sole purpose of carrying children residing in children subject to its jurisdiction should to Violate the Equal Protection Clause by these geographically large districts or zones be required to attend the school appropriate treating In a different manner students sim­ to the nearest available schools. As a con­ to tlleir educational standings in the district Ilarly situated and by denying students ad­ sequence, it now uses 280 buses to bus some or zone of their residence. The plan would mission to their neighborhood schools be­ 23,000 school children to rural and suburban have accomplished a racial mixture of school cause of their race? schools. (864a) children in all of the 102 schools in the sys­ The amicus curiae insists that the first, In 1965 the plaintiffs brought the instant tem, except three elementary white schools third, and fourth questions must be an­ action against the School Board in the United located in neighborhoods Inhabited exclu­ swered in the affirmative and that the second States Court for the Western District of sively by members of the white race. (726a­ question must be answered in the negative. North Carolina seeking to obtain a compul- 748a) • May 15, 1974 CONGRESSIONAL RECORD - SENATE 14871 The School Board plan contemplated that approximately 23,000 additional children ad­ philosophy of education, he would suggest Jrom 17 percent to 36 percent of the stu­ mission to the neighborhood schools in the that educators should concentrate on plan­ dent body;ln. nine. of the ten senior high districts or zones of their residence, and to ning schools as educational institutions schools in the system would be black; that transport them by bus or otherwise substan~ rather than as neighborhood proprietor­ not more than 38 percent of the student tial distances in order to produce a greater Ships." (306a) body in. 20 of the 21 junior high schools in racial mixture in student bodies. (819a, When It entered its order of February 5, the system 'would be black; and that not 825a-827a, 829a-839a, 1198a, 1208a-1214a, 1970, the District Court justified adding the more than 40 percent of the student Jody 123la-1234a, l268a-1269a) conditions and revisions recommened by in 60 of. the 72 elementary schools in the C. The order oj the District Court Dr. Finger on the ground that the School Board plan "relies almost entirely on geo­ system would be black. On February 5, 1970, the District Court Under the School Board plan, the remain­ graphical attendance zones," while "the Fin­ entered an order approving the School Board ger plan goes further and produces desegrega­ ing high school, Independence lligh, would plan, subject to certain drastic conditions be 2 percent black and 98 percent white; tion of all the schools In the system." (819a) and revisions recommended by Dr. Finger. What has been said makes it manifest that the remaining junior high school, Piedmont (819a-839a) By adopting these conditions Junior High, would be 90 percent black and the District Court entertained the opinion and revisions, the District Court commanded that the Equal Protection Clause of the 10 percent white; and all of the 12 remaining the School Board to do these things: elementary schools, except the three white Fourteenth Amendment makes it obligatory 1. To deny hundreds of black high school for a school board to mix student bodies elementary schools, would be 83 percent to students admission to a nearby high school 1 percent black. (726a-748a). racially In every school SUbject to Its juris­ which would have had a racial composition diction If children are available for mixing, The School Board judged it to be impossi­ of 36 percent black and 64 percent white and that a school board must deny a suffi­ ble to desegregate the' three wllite elemen­ under the School Board plan, and to bus cient number of school children admission tary schools, and to further desegregate the them from their residences In northwest to their neighborhood schools and bus them nine predominantly blacl{ elementary schools Charlotte through inter-city traffic a dis­ to schools elsewhere either to overcome racial by geographic distrlctlng or zoning because tance of some 12 or 13 miles to Independence imbalances In their neighborhood schools of tile de facto segregntlon prevnlllng in the High School which Is located In a white or In the schools elsewhere, regardless of residential areas in which the children as­ suburban residential area; whether such racial Imbalances are produced signed to these 12 elementnry schools lived. 2. To deny several thousands of black by arbitrary or Invidious discrimination on (730a-732a) The District Court made a spe­ junior high school students admission to the part of the school board or simply result cific finding in Its Supplemental Findings their neighborhood junior high schools in from adventitious de facto residential seg­ of Fact of March 21, 1970, which establishes the Inner city, and to bus them substantial regation or other cause. the validity of the School Board's conciu­ distances to nine predominantly white sub­ The amicus curiae has not undertaken to slon concerning Independence High, Pied­ urban schools located in other attendance state with exactitude the number of addi­ mont Junior High, and the 9 predominantly districts or zones; and tional school children which the District black elementary schools, all of which are 3. To deny thousands of black and thou­ Court ordered the School Board to deny ad­ located in northwest Charlotte or its en­ sands of white elementary school children mission to their neighborhood schools find virons. admission to 31 elementary schools located to bus from one school to another or from one The District Court expressly found that within their respective attendance districts school district to another, or the additional "both Dr. Finger and the School Board staff or zones, and to bus them distances approxi­ cost which the carrying out of the District appear to have agreed,. and the Court finds mating 15 miles to elementary schools situ­ Court's order in this respect will Impose upon as a fact that for the present at least there ated in other attendance districts or zones. the School Board. is no way to desegregate the all-black schools The sole purpose of the District Court In This action of the amicus curiae has been in northwest Charlotte without providing ordering the School Board to dislocate and deliberate because these matters are In seri­ (or continuing to provide) bus or other bus the hundreds of black high school stu­ ous dispute between the School Board and transportation for thousands of children. dents to Independence High School was to the District Court. All plans and all variation of plans consid­ make Independence High less white, and the When the District Court entered its order ered for this purpose lead In one fashion or sole purpose of the District Court in order­ of February 5, 1970, and thereby adopted the another to that conclusion." (1208a) ing the School Board to dislocate and bus Finger plan in virtually its entirety, the The amicus curiae submits that it beggars several thousands of junior high school stu­ School Board estimated that the order re­ imagination to conjecture how any plan dents was to reduce the percentage of blacks qUired it to bus 23,384 additional students could have obtained a greater degree of in Piedmont Junior High from 90 percent to an average round trip of 30 miles each school racialintegration by gerrymandering attend­ 32 percent. (825a-826a) day, and that to do this the School Board ance districts or zones in a political SUb­ The sole purpose of the order of the Court would have to acquire 526 additional buses division where white children outnumber commanding the School Board to dislocate and additional parking spaces at an original black children 71 to 29, and where most of and bus thousands of elementary school capital outlay of $3,284,448.94; and thereafter the black children are concentrated resi­ children was to alter the racial composition expend each year an additional $1,065,391.98 dentially in an area inhabited exclusively by of the student body in 9 predominantly in employing additional personnel and de­ members of their race. black inner-city schools and in 24 pre­ fraying other operating costs. (853a, 866a) The School Board plan did not stop with dominantly white suburban schools. To ac­ compllsh this purpose, the District Court On March 3, 1970, the District Court modi­ proposing such a high degree of racial inte­ fied Its order of February 5, 1970. (921a) The gration among the student bodies in the commanded the School Board to dislocate and bus thousands of black first, second, School Board then calculated that the order schools subject to its jurisdiction. It made as modified will require it to transport 19,235 these three additional proposals: third, and fourth grade students from 9 predominantly black Inner-city schools to 24 additional students and to purchase for such 1. That the faculty of each school should purpose 422 additional buses and additional be assigned in such a manner that the ratio predominantly white suburban schools, and to dislocate and bus thousands of white parking spaces at an original capital outlay of black teachers to white teachers in each fifth and sixth grade students from the 24 of $2,369,100.00; and thereafter to expend school would be approximately 1 to 3 in predominantly white suburban schools to the each year for additional personnel and op­ accordance with the ratios in the entire 9 predominantly black inner-city schools. eratlng expenses of such buses $284,000.00. faculty of the system (7370.); (826a) (1269a-1270a) 2. That the School Board should furnish The order of the District Court did not The Court estimated that the execution of 4,935 additional students in-district or in­ stop with these things. It further ordered the its order as modified would require the School zone transportation to the schools In the School Board to establish and implement a Board to bus 13,300 additional students and proposed gerrymandered attendance districts continuing program of assigning students to purchase for use 138 additional buses at or zones in accordance with the North Caro­ throughout the school year "for the con­ an original capital outlay of $745,200.00; and lina law which forbids such transportation scious purpose of maintaining each school to expend thereafter annually $266.000.00 for wIthin one and one-half mile distances ••• In a condition of desegregation." operating costs of such additional buses, ex­ (736a); and (824a) clusive of what It will have to expend to com­ 3. That any black child in any school hav­ The record clearly discloses the reasoning pensate any additional personnel necessary ing more than 30 percent of his race in Its which prompted the District Court to seek for their operaton. (1259a-1261a, 1269a) student body shOUld be allowed to transfer to achieve the purposes of its order. The Court arrived at Its figures by suggest­ to any school having less than 30 percent Prior to Its order of February 5. 1970, ing that the School Board could reduce its of his race; whereas a white child should be namely, on April 24, 1969, the District Court estimate of the expenses incident to busing permitted to transfer to another school only manifested its disapproval of the School the thousands of children affected by Its if tile school he Is attending has more than Board's adherence to the neighborhood school order by drastically staggering school open­ 70 percent of his race and the school to concept by this statement: "Today people ings and closings. The School Board replied which he seeks transfer is less than 70 per­ drive as much as 40 or 50 miles to work; to this suggestion by asserting that the sug­ cent white. (734a-735a) 5 to 10 miles to church, several hours to gested staggering of school openings and clos­ At the same tinle, Dr. Finger submitted to football games; all over the country for clvic ings would require some children to leave the District Court his plan of desegrega.tion affairs of various types. The automobile has home as early at 6:30 a.m. and prevent some which contemplated that the School Board exploded the old-fashioned neighborhood of them from returning home before 5:00 should be required by the court to deny ••• If this Court were writing the p.lU. (864a-865a) C~ 937--Partll 14872 CONGRESSIONAL RECORD -SENATE May 15, 1974 D. The judgment 0/ the United States Court The view of the District Court and some adventitious circumstances that the in­ 0/ Appeals lor the Fourth Circuit of the Circuit Court Judges may be sum­ habitants of particular areas In and ad­ At the instance of the School Board, the marized in this way: jacent to the city of Charlotte are pre­ United states Court of Appeals for the Fourth It is highly desirable from an educational dominantly of one race." Circuit reviewed the orders of the District Viewpoint to mix students in publlc schools The Equal Protection Clause of the Four­ Court. On May 26, 1970, the Circuit Court racially in the highest possible degree. Hence, teenth Amendment, which was certified to rendered its jUdgment affirming the orders the Equal Protection Clause imposes upon be a part of the Constitution on July 28, of the District Court insofar as they related a public school board the positive duty to 1868, forbids a state to "deny to any person to the assignment and busing of senior high balance racially all the schools it operates Within its jurisdiction the equal protection school and junior high school stUdents, and if black and white chlldren are avallable for of the laws." remanding to the District Court for further this purpose; and to deny school chlldren By these words, the Equal Protection consideration the provisions of the District admission to their neighborhood schools and Clause requires a state to treat in like man­ Court relating to the assignment and busing bus them to other schools in other areas, no ner all persons similarly situated. State of eiementary school students. (126211.­ matter how distant, in sufficient numbers Board 0/ Tax Commissioners 0/ Indiana v. 130411.) . to effect such racial balancing. Jackson, 283 U.S. 527 (1931): Maxwell v. Bug­ In making this remand, the Circuit Court The School Board refutes this proposition bee, 250 U.S. 525 (1919). The clause does adjudged that "not every school in a unitary by saying that the Equal Protection Clause not require identity of treatment. Walters v. system need be integrated," and adopted a does not require action which may be desir­ St. Louis, 347 U.S. 231 (1934). It permits a "test of reasonableness-instead of one that able; it merely prohibits action which is ar­ state to make distinctions between persons calls for absolutes." (126711.) bitrary or invidious. subject to its jurisdiction if the distinctions The writ of certiorari granted to the School When it is stripped of irrelevancies and are based on some reasonable claSSification, Board presents for review the validity of the surmises, the record discloses a surprisingly and all persons embraced within the classifi­ Circuit Court ruling approving the orders of simple state of facts which are relatively cation are treated allke. It merely outlaws the District Court relating to the assignment free of confiict insofar as they relate to the arbitrary or invidious discrimination. Avery and busing of senior high school and junior crucial issues. v. Midland County, 390 U.S. 474 (1968); Mis­ high school students and the writ of certi­ After the first Brown Case, 347 U.S. 483 souri Pacific Railway Co. v. Mackey, 127 U.S. orari granted to the original plaintiffs pre­ (1954). the School Board converted its pre­ 205 (1888). sents for review the question of tile valldity viously dual system of schools into a unitary From July 28, 1868, untll May 17, 1954, the of the rUl!ng of the Circuit Court vacating system of schools within which no child Equal Protection Clause of the Fourteenth the order of the District Court relating to the was excluded because of the chlld's race. The Amendment was interpreted to sanction the assignment and busing of elementary school School Board did this by a geographic as­ "separate but equal doctrine," which per­ stUdents. signment plan applicable in like manner to mitted a state to segregate school children in Subsequent to these events, nameIv, on all children without regard to their race. Its its pUblic schools on the basis of race when August 3, 1970, the District Court reinstated action in this regard was adjudged to be in it furnished equal faclllties for the educa­ and reaffirmed its order of February 5, 1970, compliance with the Equal Protection tion of the chlldren of each race. Gong Lum in respect to the assignment and busing of Clause by both the District Court and the v. Rice, 275 U.S. 78 (1927); Cumming v. Rich­ the elementary school students. (132011.) Court of Appeals. mond County Board 0/ Education, 175 U.S. While the valldity of this particular order Subsequent to the Green Case, 391 U.S. 528 (1899); Plessy v. Ferguson, 163 U.S. 537 may not be before the Supreme Court the 430 ( 1968), the District Court ordered the (1896) . question which it raises is involved in the school Board to submit another plan for the On May 17, 1954, the Supreme Court matter to be reviewed under the writ granted desegregation of its schools. Pursuant to handed down its historic decision in Brown to James E. Swann and those associated with this order, the School Board proposed a plan v. Board 0/ Education 0/ Topeka. 347 U.S. 483 him in this litigation. which was reasonably designed to secure (1954), adjudging "that in the field of public The amicus curiae understands that the the maximum amount of racial mixture ob­ education the doctrine of 'separate but equal' School Board has tiled an as yet unprinted tainable in the stUdent bodies in its schools has no place" and holding that a state vio­ motion with the Supreme Court for a stay of without abandonment of the neighborhood lates the Equal Protection Clause if it denies school concept by restructuring its geo­ any child admission to any of its public the order entered by the District Court on schools on account of the child's race. August 3, 1970, after the hearing of the case graphic attendance districts or zones, and in the Circuit Court. assigning all of the chlldren subject to its On the same day the Supreme Court jurisdiction without regard to their race to handed down Bolling v. Sharpe. 347 U.S. 497 SUMMARY OF AGREEMENT their respective neighborhood schools in the (1954), ruling that the Due Process Clause In the final analysis, the questions pre­ districts or zones in which they reside. of the Fifth Amendment imposes the same sented for review in this case do not arise out The Court rejected the School Board plan inhibition on the publlc schools of the Dis­ of any real controversy In respect to the simply because it did not racially balance trict of Columbia that the Equal Protection testimony. They arise out of a fundamental one senior high school out of the system's Clause does on the public schools of a state, disagreement between the Scllool Board, on ten senior high schools, Olle junior high out and one year later the Supreme Court an­ the one hand, and the District Court of the system's 21 junior high schools, and nounced its implementing decision in second and some of the Circuit Court JUdges, on the nine predominantly black and three pre­ Brown. which is reported as Brown v. Board other, with respect to how the Equal Pro­ dominantly white elementary schools out of 0/ Education 0/ Topeka. 348 U.S. 294 (1955). tection Clause applles to the assignment of the system's 72 elementary schools. Since these decisions the Supreme Court students to public schools. Instead of approving the reasonable plan has applied the Equal Protection Clause to The view of the School Board may be submitted by the School Board, the District varying factual situations arising in various epitomized in this fashion: Court, in essence, adopted the Finger Plan Southern publlc school districts in the fol­ The Equal Protection Clause applies only which requires the School Board to deny lowing cases: Cooper v. Aaron, 358 U.S. 1, 20 to State action which is arbitrary or in­ thousands of children admission to their (1958); Shuttlesworth v. Birmingham Board vidious, and, hence, it leaves a public school neighborhood schools, and to bus them to 0/ Education, 358 U.S. 101 (1958); Bush v. board, acting as a State agency, entirely free other schools in other areas merely to elimi­ Orleans Parish School Board. 364 U.S. 500 to assign students to its schools by any nate the racial imbalances in these particu­ (1960); Watson v. City 0/ Memphis. 373 U.S. method satisfactory to itself if such method lar schools. The School Board insists that 526 (1963); Goss v. Board 0/ Education 0/ is not arbitrary or Invidious. A public school the action of the District Court was not KnOXVille. 373 U.S. 683 (1963); Griffin v. board acts arbitrarily or invidiously if it as­ only Inconsistent with the Equal Protection County School Board 0/ Prince Edward signs stUdents to its schools for racial rea­ Clause, but violates Title IV of the Civil County, 377 U.S. 218 (1964); Bradley v. School sons, but a public school board does not Rights Act of 1964, and that the Circuit Board 0/ City 0/ Richmond, 382 U.S. 103 act arbitrarily or invidiously if it assigns Court erred insofar as it approved the ac­ (1965); Rogers v. Paul. 382 U.S. 198 (1965); students to its schools for non-racial rea­ tion of the District Court. Green v. County School Board 0/ New Kent County. 391 U.S. 430 (1968); Raney v. Board sons, such as the promotion of the efficiency ARGUMENr of school administration, the economy of 0/ Education 0/ the Gould School Dist"ict, school administration, or the convenience I 391 U.S. 443 (1968); Monroe v. Board 0/ Com­ of the students or their parents. This being "The Charlotte-Mecklenburg Board of missioners 0/ the City 0/ Jackson. 391 U.S. true, the Equal Protection Clause does not Education has complied with the Equal 450 (1968); United States v. Montgomery impair in any way the power of a public Protection Clause of the Fourteenth County Board 0/ Education. 395 U.S. 225 school board to create fairly drawn geo­ Amendment and the Supreme Court deci­ (1969); Alexander v. Holmes county Board graphic attendance districts or zones, and sions interpreting it by establishing and op­ 0/ Education, 396 U.S. 19 (1969); Dowell v. to assign all students without regard to their erating a unitary publlc school system, Board 0/ Education 0/ the Oklahoma City race to neighborhood schools in the respec­ which receives and teaches stUdents with­ Public Schools. 396 U.S. 269 (1969); Carter v. tive dtstrlcts or zones in which they reside out discrimination on the basis of their West Felwiana Parish School Board, 396 U.S. even though such action may result in some race or color. Any racial imbalance remain­ 226 (1969); Carter v. West Feliciana Paris7~ racial imbalances in the schools serving areas ing in any of the schools under the juris­ School Board. 396 U.S. 290 (1970); and North­ predominantly inhabited by members of one diction of the Board represents de facto cross v. Board 0/ Education 0/ the MempMs race. segregation, which results from the purely City Schools, 397 U.S. 232 (1970). lvlay 15, 1974 CONGRESSIONAL RECORD - SENATE 14873 Besides, individual Supreme Court Justices, schools in northwest Charlotte without Equal Protection Clause forbids a public acting as Circuit Justices, have expressed transporting thousands of children by bus school board, which acts as a state agency, o;;inions on the sUbject in these cases: Board or other means. (1208a) to deny any child admission to any school of School Commissioners of Mobile County v. When allis said, the School Board went far it operates on account of the child's race. A DaVis, 11 L. ed. 2d 26 (1963); Keyes v. School beyond the call of any duty imposed upon it public school board obeys the Clause by District No.1, Denver, 396 U.S. 1215 (1970); by the Equal Protection Cl~.use when it pro­ maintaining a unitary school system, I.e. a and Alexander v. Holmes county Board of posed in its plan of February 2, 1970, to school system "within which no person is to Ecucation, 396 U.S. 1218 (1969). gerrymander attendance districts or zones in be etrecU';ely excluded from any school be­ The record in the instant case embraces order to achieve the highest degree of de­ cause of race or color." Northcross v. Board hundreds of pages of evidence, orders, and segregation obtainable without virtual of Education of the Memphis City Schools, judgments, and for that reason, the case abandonment of the neighborhood school 397 U,S. 232. (1970); Alexander v. I/olmes lends itself to much writing. But the issues concept. The amicus curiae expresses no County Board Of Education, 396 U.S. 19 arising in the case are simple, and it would opinion as to whether this proposal Is re­ (1969). See also the opinion of Mr. Justice complicate that simplicity to analyze the pugnant to the constitutional or legal rights Black. acting as Circuit Justice, In Alexander cited decisions in detail. In their ultimate of any chlId. v. I/olmes County Board Of Education, 396 analysis, they interpert the Equal Protection II U.S. 1218 (1969). Clause as follows: "The Equal Protection Clause of the Four­ The power to assig:l children to state sup­ 1. The Equal Protection Clause mal~es it teenth Amendment does not require or em­ ported schools belongs to the publlc school unconstitutional for a state to deny any power a Federal Court to order a public board which operates them. The Equal Pro­ chUd admission to any public school it oper­ school board to assign chlIdren to the schools tection Clause does not undertake to trans­ ates on account of the chUd's race. It operates merely to balance the student fer this power to the Federal Courts. It mere­ 2. In consequence, the Equal Protection bodies in such schools racially, or to bus chil­ ly snbjects the exercise of the power by the Clause imposes upon a State, acting through dren outside reasonable geographic attend­ publlc school board to this limitation: The its appropriate agencies, the responsibllity ance districts or zones to effect such purpose. board must not exclude any child from any to establish a system of determining admis­ The District Court ordered the Charlotte­ school it operates because of the child's race. sion to its public schools on a non-racial Mecklenburg School Board to do both of these If it faithfully observes this llmitatlon basis. things, and the Circuit Court erred insofar as upon its power, a publlc school board has the 3. A state, which operated a racially seg­ it affirmed the District Court order." right to assign children to the schools 'it regated system of public schools on May 17, The facts make it clear that the order operates in any non-discriminatory fashion 1954, fulfills this responsiblllty by convert­ entered by the District Court on February 5, satisfactory to itself. ing its dual public school system into a uni­ 1970, requires racial balancing in the Char­ The School Board exercised this right when tary public school system. lotte-Mecklenburg School System and the it created nondiscriminatory attendance dis­ 4. A unitary public school system is one busing of thousands of children outside their tricts or zones and assigned all children, "within which no person Is to be effectively geographic attendance districts or zones to whether black or white, to neighborhood excluded from any school because of race or effect such balancing. schools in the districts or zones of their color." Indeed, the District Court virtually admits residence without regard to race. When the Equal Protection Clause as thus this to be true by setting forth in its Sup­ Since the children are similarly situated interpreted Is applled to the facts in this plemental Findings of Fact of March 21, and the School Board treats them exactly case, it is obvious that the School Board 1970, a specific finding that there is no other alike, Its action Is in complete harmony has fully converted Its Pre-Brown dual way to desegregate the black schools in with the Equal Protection Clause. It accords, school system Into a unitary school system northwest Charlotte. (12088.) moreover, with the implementing decision in within which no child is actually excluded Upon the entire record, the conclusion is the second Brown Case, 349 U.S. 294 (1955), from any school because of race or color. inescapable that the District Court fell into which expressly recognizes that a school The School Board has done this by creating error because it honestly believed that the board may employ non-discriminatory geo­ non-discriminatory attendance districts or Equal Protection Clause and certain deci­ graphic zoning of school districts "to achieve zones and assigning all children, black and sions interpreting it Impase upon a. public a system of determining admission to the white, to neighborhood schools In the dis­ school board an absolute duty to do these publlc schoals on a nonracial basis." trict or zone In which they reside without things: As is true In respect to Virtually every city regard to their race. 1. To balance racially to the highest de­ of any size in our land, the different races These conclusions are explicit in the rUl­ gree possible all the schools subject to its are concentrated to a substantial degree in ings made by the District Court and the control If black and white children are avail­ separate residential areas in Charlotte, and Circuit Court in 1965 and 1966. Swann v. able for that purpose anywhere within the for this reason the School Board's non­ Charlotte-Mecklenburg Board Of Education, territory SUbject to its jurisdiction, no mat­ discriminatory geographic zoning and assign­ 243 F.Supp. 667 (1965), Swann v. Charlotte­ ter how vast such territory may be; and ment program necessarily results In some Mecklenburg Board of Education, 369 F.2d 2. To effect such racial balaneing by deny­ racial imbalances in some schools. (1966). They are Implicit in the findings ing both black and white children admission Notwithstanding this, the order of the made by the District Court In its order of to their neighborhood schools and busing District Court commanding the School Board April 23, 1969, that the School Board had them to other schools in other areas in suffi­ to exclude thousands of children from their "achieved a degree of desegregation of schools cient numbers to overcome racial imbalances neighborhood schools and to bUB them long apparently unsurpassed In these parts" and either in their neighborhood schools or In distances to other schools to overcome these had "exceeded the performance of any school the other SChools, regardless of whether the racial imbalances is without support in the board whose actions have been reviewed in racial Imbalances result from de facto resi­ Equal Protection Clause. the appellate court deCiSions," (3110.-3120.) dential segregation or other cause, and re­ This is true for an exceedingly plain rea­ and that the Schools of Charlotte, In essence, gardless of these other factors: the distances son, The Equal Protection Clause does not conform to de facto patterns of residential the chlldren are to be bused, the time re­ prohibit any discrimination except that segregation. (3050.) quired for their busing, the impact of their which Is arbitrary or invidious. To be sure, the District Court, acting sua exclusion from their neighborhood schools It ineVitably follows that where school at­ sponte, undertook to recall these findings In and their busing upon their minds and tendance areas are not arbitrarily or in­ its Memorandum Opinion of November 7, hearts, the effect of these things upon the vidiously fixed so as to include or exclude 1969, and to assert that racial imbalances in management of the homes which must nur­ children of a particular race, the Equal Pro­ the Schools of Charlotte are not innocent ture them, the traffic hazards inVOlved, a.nd tectlon Clause does not prohibit a state or or de facto. (662a) the additional expense foisted upon heavily local school board from reqUIring that the burdened taxpayers. children living in each attendance area at­ The amicus curiae submits in all earnest­ There Is no other rational eKplanatlon for tend the school in that area, even though ness that there is no eVidence In the record the effect of such a requirement, In a local­ to sustain the District Court's assertion in the court order which disrupts the lives of thousands of sehool children and the man­ ity where the different races ace concentrated tlhs respect. Be this as it may, the Supreme in separate residential areas, Is racial im­ Court is empowered in cases of an eqUitable agement of the thousands of homes from which they come, and diverts tremendous balance or de facto segregation In the nature and cases involVing constitutional schools. questions to review the eVidence and make sums of tax-raised moneys from the enlight­ enment of their minds to the busing of their The conclusion that the Equal Protection its own findings. If it follows this course in Clause does not impose upon a public school this case, the Supreme Court wffi be impelled bodies. The Equal Protection Clause does not re­ board any mandate to remove any racial to the conclusion that there is not a vestige imbalance in Its schools occasioned by de of state-imposed segregation in the Char­ quire any court to enter any such order. It does not empower any court to enter any facto residential segregation or non-discrim­ lotte-Mecklenburg School System. inatory geographic assignments is expressly Besides, the District Court's assertion that such order. Indeed, it forbids any court to do so. supported in Bell v. School City Of Gary racialimbalances In the schoOis of Charlotte Ind. (7 CA-1963), 324 PO.2d 209, Bnd Down; are "not innocent or de. facto" is totally re­ As Interpreted In the first Brown Case, 347 v. Board Of Education of Kansas City, Kan­ pudiated by its subsequent finding that U.s. 483 (1954), and all SUbsequent Supreme there 18 no way to ~esegregate the black sas (10 CA-1964). 336 F.2d 998. Moreover. i1; Court decisions relevant to the SUbJect, the is compelled by first Brown, 347 U.S. 483 14874 CONGRESSIONAL RECORD-SENATE May 15, 1974 (1954), and all the subsequent Supreme any child from any school because of the manager of the blll, and received this reply Court cases applying its holding, as well as child's race. from Senator Humphrey: by the language of the Equal Protection Further than that It does not go. It does "Mr. BYRD, of West Virginia. Can the Sen­ Clause itself.' not rob any public school board of its In­ ator from Minnesota assure the senator froUl Despite the fact that the Charlotte-Meck­ herent authority to assign children of any West Virginia that under Title VI school lenburg School System is in the South, racial race to their neighborhood school it the children may not be bused from one end of imbalances produced in its schools by de school board acts for reasons other racial the community to another end of the com­ facto residential segregation are just as in­ reasons, such as a purpose to promote ease munity at the taxpayers' expense to relleve nocent as racial Imbalances produced In the of school administration, convenience of the SO-called recial Imbalance In the schools?"" public schools of the North by the same children and the homes from which they "Mr. HUMPHREY. I do." 3 cause, and are equally exempt from federal come, or economy of operation. Senator Humphrey made these further interference, whether legislative, executive, Hence, it does not empower federal courts statements relating to the purposes of the or judicial. under the Equal Protection to deny children of any race admission -to bill: Clause. Which, as already pointed out, con­ their neighborhood schools and to bus them "Mr. HUMPHREY. Mr. President, the Consti­ demns no discrimination except that which to other schools In other areas to remedy tution declares segregation by law to be un­ is arbitrary or Invidious. ra~ial Imbalances in their neighborhood constitutional, but It does not require inte­ The amicus curiae Is confident that the schools or the other schools arising out of gration In all situations. I believe this point Supreme Court will so adjUdge. Indeed, it the residential patterns of their neighbor­ has been made very well In the courts, and must do so If the United States is truly one hoods or of the other areas. I understand that other Senators wlll clte nation under one flag and one Constitution. And, above all things, the Equal Protec­ the particular cases. It no longer comports With intellectual in­ tion Clause does not Intend that little chil­ "I shall quote from the case of Bell against tegrlty to call all racial Imbalances in the dren, black or White, shall be treated as School City of Gary, Ind.• In which the Fed­ public schools of the South de jure, and all pawns on a bureaucratic or Judicial chess eral court of appeals cited the follOWing lan­ racial imbalances In the public schools of the board. guage from a special three judge district North de facto. When It enacted Title IV of the Civil court in Kansas: 'Desegregation does not There Is now no de jure school segregation Rights Act of 1964 to enforce the Equal Pro­ mean that there must be intermingling of anywhere in our land. Racial Imbalances in tection Clause, Congress recognized the va­ the races in all school districts. It means pUblic schools are either arbitrary 01' invldl- lidity of these observations concerning the only that they may not be prevented from - ous and, hence constitutionally Impermis­ meaning of the Equal Protection Clause. intermingling or going to school together sible, both North and South. or innocent and. Moreover, it was not oblivious to the in­ because at race or color.' Brown v. BoareL 01 hence. constitutionally permissible. both escapable reality that the different races are Education, D.C. 130 F. Supp. 468. 470. North and South. Racial Imbalances result­ concentrated to substantial degrees in sep­ "In Briggs v. Elliott (EDSC), 132, SUPP. ing from de facto residential segregation or arate residential areas throughout the na­ 776, 777, the Court said: 'The Constitution, non-discriminatory dlstricting or zoning, tion, and that It would be virtually Impos­ In other words, does not require integration. Whether in the North or in the SOUtl1, are sible to keep the public schools of the coun­ It merely forbids discrimination.' In other clearly innocent and constitutionally per­ try racially balanced, even if the Equal Pro­ words, an overt act by law which demands missible. tection Clause did not prohibit such action. segregation is unconstitutional. That was Moreover. it no longer comports With real­ For these reasons, Congress vested In the the rUling of the historic Brown case of ity, common sense. or justice to apply one Commissioner of Education, the Attorney 1954." • rule to the North and another to the South General, and the Federal Courts certain The language of the Act discloses this two­ because the South did not precede the Su­ responsibilities regarding what it called the fold Congressional intent: preme Court in discovering that the "sepa­ desegregation of public education. but lim­ 1. To enforce the Supreme Court rulings rate. but equal doctrine" had ceased to be ited the powers of the Commissioner of Edu­ that the Equal Protection Clause prohibits the law of the land. cation and the Attorney General, and the the State from denying to any child admis­ III jurisdiction of the Federal Courts to keep sion to any school it operates because of the "The Fifth Section of the Fourteenth them within constitutional bounds. child's race; and Amendment Empowers congress to Enforce Congress was authorized to do these things 2. To keep overzealous bureaucrats and the Equal Protection Claus by Appropriate by the Fifth Sectton of the Fourteenth federal judges from straying beyond consti­ Legislation, the First Section of Article III Amendment, which expressly empowers Gon­ tutional limits In cases involVing the deseg­ of the Constitution Empowers Congress to gress to "enforce, by appropriate legislation" regation of public schools. RegUlate the Jurisdiction of United States the Equal Protection Clause; the First Sec­ Since no action at his is involved In this District Courts and United States Circuit tion of Article III of the Constitution, which case, the amicus curiae pretermits discus­ Courts of Appeals, and the Second Section of authorizes Congress to prescribe the juris­ sion of the provisions of the Civil Rights Article III of the Constitution Empowers diction of the Inferior courts created by it, Act of 1964 relating to the Commissioner Congress to Regulate the Appellate Jurisdic­ Chisholm v. Georgia, 2 Dall. (U.S.) 419, 432 of J1:ducatlon. tion of the Supreme Court. Congress Exer­ (1793); Tumey v. Bank 01 North America, 4 In phrasing the Act. Congress uses the cised all of These Powers In an Appropriate Dall. (U.S.) 8 (1799); Ex Parte Bollman, 4 terms "desegregation" and "discrimination" Fashion When It Enacted Title IV of the Cranch (u.s.) 75,93 (1807); Cary v. Curt-is, 3 Interchangeably to express the concept made Civil Rights Act of 1964, Which Prohibits the How. (U.S.) 236, 245 (1845); Sheldon v. Still famillar by the prevalent use of the word Assignment of Students to Public Schools to 8 How. (U.S.) 441 (1850); Kline v. Burke Con­ "discrimination" to mean state action deny­ Balance the Student Bodies in Such Schools struction Co., 260 U.S. 226, 234 (1922); Laul Ing persons admission to public colleges 01' Racially, and to bus Them From Some v. E. G. Skinner &- Co., 303 U.S. 323. 330 public schools because of their race. Schools to Other Schools, or From Some (1938); Lockerty v. PMllips, 319 U.S. 182 This observation is made indisputable by School Districts to Other School Districts to (1943); and Yankus v. UniteeL States, 321 U.S. Section 401(b) which expressly declares that Effect Such Purpose. The Act's Prohibition 414 (1944); and the Second Section of Article "desegregation" merely means "the assign­ on Busing is Absolute and Deprives Federal III of the Constitution, which vests Congress ment of students to pUblic schools and with­ Courts of Jurisdiction to Compel School with legal power to regUlate the appellate in such schools without regard to their race. Boards to Bus Students to Overcome Racial jurisdiction of the Supreme Court, Wiscart v. color, religion, or national origin"; Section Imbalances in Schools. Even it Such Im­ D'Auchy,3 Dall. (U.S. 321, (1796); Durous­ 407(a) (1) and (2) Which refer to chlldren balances Result From Discriminatory School seau v. UniteeL States, 6 Cranch 309 (1810); who "are being deprived by a school board of Board Action. The District Court Order Vio­ Barry v. Mercein, 5 How. (U.S.) 103, 119 the equal protection of the laws" and in­ lated This Act by Commanding the Char­ (1847); Daniels v. RailroaeL Co.• 3 Wall. (U.S. dividuals Who have "been dented admission" lotte-Mecklenburg School Board to do the 250, 254 (1866); Ex Parte McCardle, 6 to a publlc college or premission "to continue Things P1'ohlblted by it, and the Circuit Wall. (U.S.) 318 (1868); The Francis Wright, at a public college by reasons of race, color, Court Joined In Such Violation Insofar as it 105 (U.S. 381, 386 (1882); Kuntz v. Moffitt, religion, or national origin"; Section 409 Affirmed the District Court Order." 115 U.S. 487,497 (1885); Cross v. BUTke, 146 which directs its attention to "dlsc11mlnatlon The Equal Protection Clause Is limited in U.S. 82, 86 (1892); Missouri v. Pacific Rail­ in publlc education"; and Section 410 which objective and operation. It imposes this duty way Co., 292 U.S. 13, 15 (1934); and Stephan stipUlates that "nothing In this title shall and this duty only on a state, i.e., to treat v. United States, 319 U.S. 423, 426 (1943). prohibit clasisficatlon and assignment tor in like manner all persons similarly situated. The conclusion that Title I of the Civil reasons other than race, color, religion, or In consequence, it forbids a public school Rights Act of 1964 Is designed to enforce national origin. board, acting as a state agency, to exclude the Supreme Court rulings that the Equal There is not a single syllaJ':>le In Title IV ot Protection Clause forbids a school board, act­ the Civil Rights Act ot 1964 giving any sup­ ] While such action may not be customary Ing as a state agency, to deny any child ad­ port to a different interpretation. in briefs, the amicus curiae wishes to note mission to any school it operates because of Section 401(b) merits further considera- that this conclusion Is supported by the text the child's race Is vindicated by the legisla­ \\l~ ." permanent basis, despite desegregation, and will continue just as past 20 years-until last September, when a new suit was filed charging that Topeka public resen.tillent of the move, in order strongly to maintain that position. schools are still "systema.tically" segregated. to avoid busing as a last resort in meet­ But again, this amendment must not Topeka is thus facing the possiblllty of an­ ing the lat~tFederal demands. be construed by any reasonable and fair­ other painful integration fight 20 years later, .. -: A LAST RESORT minded observer as an attempt to repeal but this time with the battle lines drawn I place great emphasis on that last the true progress and advancement we qUite differently and with enough ironies to phrase, for that is exactly the idea em­ have made in reaching our present-day bewilder even Lewis Carroll's Red Queen. status. Rather, it is a rational and re­ In 1951, when Brown v Board 01 Education bodied in the amendment before us­ was first filed in Kansas courts, for example, to condone busing for integration pur­ sponsible gesture to demonstrate that the one underlying issue was that legal segrega­ poses only as a last resort, thereby pre­ American people, and more so their U.S. tion prohibited some black children from at­ serving to every extent possible the con­ Senators, are ready to face the issue of tending their neighborhood schools. But the cept of the neighborhood school. busing squarely and go on record as fav­ new suit charges that Topeka schools are still It is interesting and certainly ironical oring all other alternatives available be­ segregated in part because children attend to note that the black parents who fore reverting to this "last resort." neighborhood schools, that school segrega­ started Brown against Board of Educa­ I cannot stress enough the fact that tion is an extension of the city's de facto our vote here today-with all its long­ segregated housing patterns. tion more than 20 years ago were fight­ Simllarly, Charles Scott, the black attorney ing for the neighborhood school system range ramifications-is not for or against who filed the original Brown case, signed his and against the busing of their children integration. We all want and see the val­ name several years ago to another suit which to distant schools. But it was hardly the ues of that-but not at the cost of bus­ tried, in his words, to "establlsh a school sys­ emotional issue then that it is today. ing. And to quote again from the woman tem in several cities which would give black UNDERCURRENT OF BROWN whose name was attached to the decision boards of education in black neighborhoods of May 17, 1954: control over all-black schools, and compa­ It is more important than ever to point What about busing? I am not for it at all. rable set-ups for whites." integratiQn is no out now, in looking back to the early To me this is a reversion to what we were get­ longer a priority issue in black Topeka, Scott 1950's, that the celebrated Brown case ting into before Brown. It might just be me, says. "It·s peCUliar what 20 years of disillu­ was initiated in part to curtail the very but I had to walk all this distance to catch sionment can do to you:' practice which we are still trying to a school bus and be bused across town. If And Topeka's black citizens, whatever their overcome today-that of requiring this is what it comes to here in Topeka, I private feelings, have not pUbllcly supported wll! conform to it, but ... if there Is another the latest suit, filed in U.S. District Court schoolchildren to be unwillingly trans­ last Sept. 10 on behaif of a 10-year-old black ported away from the familiar social and solution that would give us our neighborhood schools and stll! give us an integrated school girl by the Rev. Fred W. Phelps, a white Bap­ economic surroundings of home to system, I would rather see that. tist minister who has 13 children and a con­ distant locations beyond their own gregation totaling 63. neighborhoods. The PRESIDING OFFICER. The time Lmda Brown, who gave her name to the In the case of Li..'1da Brown, who has of the Senator has expired. historic 1954 decision, is among the many been the subject of many recent inter­ Mr. DOLE. Mr. President, I ask the blacks who have been quiet about the new suit. Now 31, she has been married and views, she was compelled to take the bus Senator from Florida whether I might divorced. or walk more than 20 blocks away from have 1 additional minute. Her two chlldren started their education In her home to the nearest all-black ele­ Mr. GURNEY. Mr. President, I yield 1 the same black school that her father sued menta1'Y school, traveling by several all­ additional minute to the Senator from to get her out of. And sIle seems to be taking white schools along the way. She was Kansas. tIle latest legal battle with a calm fatalism. opposed to busing then as a child, and Mr. DOLE. Mr. President, I thank the She has not paid much attention to it, sIle still is today at the age of 30. She was Senator from Florida. says. But then she believes the real problem quoted as saying: I just want to stress again the thoughts is housing, not schools. "r think If they don't find an answer to I don't want my kids bused. I know what of Linda Brown Smith on busing, and ask that, we are still going to r.ave segregation," that's l1ke. unanimous consent that a number of ar­ she remarks. "Topeka today is more segre­ TWENTY YEARS LATER ticles on this question be printed in the gated in housing than 20 years ago ... It SO here we are-20 years later-with RECORD. seems more crowded now, more concentrat­ still the same issue, still precipitating There being no objection, the articles ed than it was:' anger, disruption, and disillusion, and were ordered to be printed in the RECORD, If Topeka Is more segregated than it used still unresolved. And no one knows what as follows: to be-and the diViding llne between black might result from a possible adverse de­ [From the Washington Post, May 12, 19741 and white neighborhoods is as easy to spot cision in a pending Detroit case, in which as in the rigidly segregated housing market TOPEKA TREADMILL: LINDA BROWN'S CrrY of Chicago-then Linda Brown is one of the the Supreme Court is wrestling with the FACES A NEW BATTLE exceptions. question of whether urban-suburban (By Austin Scott) Her son Charles, now in 5th grade, and her boundaries can be breached to achieve The Red Queen in Lewis Carroll's daughter Kimberly, a 4th grader, both start­ or restore integration. "Through the Looking Glass." "Now here, ed their kindergarten educations in Monroe, It is more timely than ever, therefore, you see, it takes all the running you can do the school their mother was attending in that we let the courts know where the to keep in the same place. If you want to get 1951. It was all black when she went there, Congress places itself on the problem of somewhere else, you must run at least tWice and she says it was 98 per cent black when busing. And again, with an overwhelm­ as fast!" they started. ing majority of those who elected us to TOPEKA, KANs.-In the wonderland of Then she moved. and the children spent Topeka, home of both Brown and the board three years in a pUblic elementary school represent their views solidly aUned of education members who ran all the way that was only 20 per cent black. She moved against this whole notion of taking long up to. the Supreme Court in 1954, there is again, and the chlldren spent less than a rides to and from remote facilities just Indeed a sense of having huffed and pUffed year in a suburban public school that was for the sake of performing "balancing" and ended up close to where you started out 98 per cent white. She moved a third time, techniques, I fail to see how we can pos­ 20 years before. and for the past five months the children sibly, respOnsibly justify the continua­ The High Court·s landmark desegregation have been attending HUdson, which is about order certainly didn't move the young plain­ 35 per cent black and only a block from tion of a position in the Senate which tiff, Linda Brown, very far. A 1st grader when the middle-income integrated apartment has heretofore permitted the practice to her father first filed the suit in 1951, Linda complex where they llve. go on relatively unchecked. had gone through one all-black elementary As R chlld, Linda Brown had to travel 30 school and on a second all-black school by ZNTEGRATION wrra ALTERNATIVES to blocks to school, passing several all-white the time of the decision. And though Topeka schools along the way. Sometimes the To be sure, few of us here, if any at repealed its segregation law a year before the weather was so cold it was unbearable for a all, and only a very small minority of Supreme CQurt order, the city didn't move small Child," she recalls. "I'd start crying in Americans, are opposed to integration it­ very sWiftly to rectify matters once the deci­ the middle of the walk, turn around and self. I have consistently supported sion was handed down: Nine black children come back. measUl'es designed to promote that ideal were placed in previously all-white schoois "Am I happier with Chuckle In the school the first year, allil a few more the second he's in now? Yes, I am, because It's more and will contfuue to do so. But I have year. like the world that he's going to grow up CXX--·-939-Partll 14904 CONGRESSIONAL RECORD ~ SENATE, ;, in, relating with people of all races. This and her class feelings of inferiority as to their school system where, according to figures helps him adjust to the world around him." status in the community, thus affecting their from the system itself, the two oldest black The notion of an integrated "real world" motivation to learn and generally affecting elementary schools contain more than 95 per threads constantly through Ms. Brown's talk their hearts and minds in a way unlkely ever cent minority stUdents whUe the three new­ about her own past and her children's fu­ to be undone... ." est junior high schools have only 2 to 3 per tvre. She works from 4 p.m. to midnIght as Although Phelps borrowed tl1e "hearts and cent minority students. a key punch operator at the Goodyear plant. minds" language from a Supreme Court de­ A student at Topeka's Washburn Law Her sister, Terry Ickard, who she lives wIth, cision, blacks who disagree With it argue that School, using the system's figures, recently kkes care of Charles, Kimberly, and her own social Changes have made such thinking ob­ calculated that in 1972-'73, 14.1 per cent of l\~icheIle, In the evenings. solete. Federal Judge Constance Baker Mot­ the city's 12,614 elementary students were "I thInk the education my children are ley, once one of the NAACP attorneys active black, but 90 per cent of the black elemen­ getting today makes for a·better adjusted in the Brown case, for example. remarked in a tary stUdents attended 44 per cent of the person," she remarks. "I feel today It would recent speech at Notre Dame University that schools. Two schools were listed as all White, have really benefited me If I had gone "it appears that It may be meaningless to five weN more than half black, and eight through an integrated neighborhood school talk about feelings of inferiority to a black were more than 35 per cent black. throughout my education, starting with ele­ youth in the central city where blacks no mentary level, because to me In an integrated longer consider themselves inferior to whites ""50 MANY BROKEN HOMES'" school it seems your rate of progress is faster. and no longer believe that any institution There's a circular component t-o the whole I notice thIs in my children. The times and which is all white is necessarily good and problem that worries Linda Brown. To some the Integrated setting both have a lot to ought to be integrated." extent, she says, she thinks neighborhood do with it. You have more of a drive to meet Back in 1950 and 1951, those laying tl1e segregation results from school segregation. competition. legal groundwork for Brown were trying to "You get this almost ghetto situation and the black child does not have a chance to GRUMIILING ABOUT PHELPS avoid a decision that might have ordered separate schools to be made equal. mIngle with the people he will be With when Even though Ms. Brown has paid little "We made the legal presumption that the he grows up. This is not the world that kids attention to Phelps' suit, her notIon of why white schools and the black schoois were in are going to enter ..• I think you'll find an integrated education is a good thing does fact equal, that the teachers, the books, the the older black adult Is stlll afraid to venture not seem to confiict with his. classrooms equal," recalls attorney Scott. "'Ve out. This will change With younger genera­ Mentioning Phelps' name in some areas of wanted the case to rest purely on the argu­ tions. The younger kids here, they go apply black Topeka, brings gnlmbling sounds, how­ ment that despite all the apparentiy equal for these job places that the older ones ever, sounds that Indicate some very vocal physical facillties, segregated schools inher­ wouldn't. blacks don't like what he's doing. They use ently prOVided black children and maybe But for all the importance she attaches to words like "opportunist" and speCUlate about even white children with an incomplete edu­ integration, she has some fears: "Before our why a White like Phelps "is taleing on the cation." black children are ready to go into a more responsibillty for a black problem." The Coordinating Council of the Black integrated setting, our black parents are go­ At 43, Phelps Is an intense, free-swinging CommunIty, a black umbrella group formed ing to have to get these children in hand as legal activist who became a lawyer to help after the violence of 1968, -has taken "no posi­ far as discipline is concerned. My younger support his growing family, and Is well aware tion" on the Phelps SUit, according to CCBC sister teaches at Monroe, 6th grade. She says tbat many Topekans-black and whIte-are direction Eva Lou Martin. It has joined the their discipline problem is getting out of put off by hIs style. NAACP in teIllng the board of education that hand. I have seen that over where my kids Those familiar with the months of careful all parts of the community should be in­ go. The teacher tells the kids something to preparatIon that went into the origInal volved in seeking a solution to the schools do and he just talks right back ... we have Brown case, the long and difficult task of problem. so many broken homes now, so many moth­ mobilizIng black communIty support first, of THE HEW INQumy ers working. It's happening in white homes too." persuading 20 parents to let theIr chlIdren Not until after Phelps filed his suit did be named as plaIntIffs, say Phelps is an un­ Would it make any difference in Topeka if the Department of Health, Education and she were to get involved in the latest SUit, likely attorney for the second tIme around. Welfare investigate the state of desegregatIon Phelps, for example, Is proud of winnIng 8 speak out strongly, perhaps? "I don't think in Topeka schools. It then notified the city so. There is going to have to be a solution to large damage award for a black woman whose in January that a "substantial" number of televIsion set was wrongly repossessed. Blacks people liVing where they are living before the schools were not as desegregated as they problem can be alleviated." have critlzed the argument he says he used­ should be; that student transfers were in­ that she had developed an unnatural psy­ What about busing? "I am not for it at all. creasing segregation; that "most minority To me this is a reversion to what we were chological dependence on the set and that its junior high school stUdents •.. attend withdrawal caused her severe emotional and getting into before Brown. It might just be schools which are generally inferior in facil­ me, but I had to walk all this distance to physIcal problems. ities ...;" and that elementary schools with Born and raIsed in MississIppi, Phelps de­ catch a school bus and be bused across town. a high minority enrollment tend to have If this is what it comes to here in Topeka, I scrIbes himself as an independent, CalvIn­ inadequate kindergartens and smaller istIc Baptist, belIeVing in predestination, a will conform to it, but •.. if there is an­ libraries. other solution that would give us our neigh­ llteral Interpretation of the Bible, eternal "You are, of course, aware that as a for­ borhood schools and still give us an inte­ retribution, and thunderous, hellfire preach­ merly offlcially segregated school district, ing , •. There isn't any doubt in our minds grated school system, I would rather see your district has been under obligation to that." about Judgment Day ... The Lord God is fully desegregate its schools," HEW said. "In my contact." order to achieve full compliance with the law, [From the Wall Street Journal, May 2, 1974) He says he had never considered a deseg­ it will be necessary for you to develop and WAS IT WORTH IT?: BLACKS DlBn.LUSlONED ON regation suit until last summer when he implement a plan which eliminates the vi­ 20TH ANNIVERSARY OF INTEGRATION RULING; was sitting in a Harvard Law School seminar. olations set forth above." IN TOPEKA, 'VHERE THE CASE BEGAN, SCHOOL He hurried home to file it. Phelps' suit and the reSUlting HEW order BOARD Is AGAIN BATTLING A SUIT; "THINGS "How are we gonna get these black kids generated a fiurry of back and forth activity SHOULD BE BETTER" integrated With these white children so they by Tokepa's all-White school board. The (By Pamela G. Hollie) can gain the advantages-that's the problem board first voted, 5 to 2, to draw up a de­ TOPEKA.-Evelyn Rene Johnson is black. now," he says. segregation plan and implement it by the H Her cIty is more than 80% White. Yet her H A LITTLE BIT OF EDGE 1974-75 school year "if possible." grade school is more than 80% black. One of the major charges in Phelps' suit, in According to a local newspaper account of That situation angers Marlene Miller, the fact, Is that the Parkdale Grade School, that meeting, "Dr. Gordon Sumners, one of aunt and guardian of ll-year-old Rene..So which is 90 per cent black and attended by the two board members voting against the she filed a $200 mi1l10n suit charging the local plaintiff Evelyn Rene Johnson, denies "the resolution, said an act comparable to the school board with failure to fully integrate intangible qualities of advantageous social Boston Tea Party might be an appropriate the school system. The class-action suit also intercourse and opportunity to study with, response to federal intervention." charges the board with favoritism in prOVid­ engage in discussions with, and exchange But just last week the board reversed its ing better facilities and better-qualified staff ideas with white children who are providen­ stand and voted to tell HEW it is impossible members for the white schools. The board tially favored economically and socially .•." to meet federal integration guidelines ot no contends that the school system is integrated "They don't have the ab111ty to be mak­ more than 40 percent blacks in any school. but that some schools are predominantly ing fl"iends with the future White judges," Instead, board members said, they will con­ black because the neighborhoods that feed says Phelps. "You can talk all you want to, duct a study to see if major upgrading is them are mainly black. It denies any favorit­ if you went to school with that white jUdge, needed at the black-dominated schools. ism toward the white schools, you get a 11tle bit of edge." The desegregation plan they voted down­ Several cities besides Topeka are facing That kind of talk tends to send advocates involving seven school closIngs and 22 bound­ similar suits involving de facto segregation­ of black pride and black excellence into fits ary changes, would cause undue hardship that is, separation of the races because of of rage. and jeopardize quality education, the board housing or social patterns. But the Topeka The suit also cllarges Topeka with prOVid­ said. suit has special significance. For it was here ing better facilities at mostly white schools. The 20 years since the Supreme Court's that the landmark case of Brown vs. Board That, it contends, generates " ... in plaintiff integration decision have produced a Topeka of Education of Topeka began. And it was fr'1ay 15, 1.971;, CONGRESSIONAL RECORD - SENATE 14905 20 years ago this month that the U.S. Su­ know what integration really meant, al­ funds, more money is spent per student in preme Court handed down its decision in though they paid ~arly for it." the schools with high proportions of minori­ what is often called the most important case For, as educational integration spread some ty-group students. The documents also show in civil-rights history. black schools were closed so that their pupilS fewer pupils pel' teacher in these schools. Shortly after noon on that Monday, May could attend formerly ail-White schools. As J\;Ir. Bolton, the school superintendent, 17,1954, the U.S. Supreme Court pronounced a result, black teachers lost their jobs. And says that because the city be11eves in the that "segregation of white and colored chll­ as blacks were admitted to white hotels, res­ neighborhood-school po11cy, "that necessarily drenin public schools has a detrimental taurants and other white-run facilities, many means tl,at some schools have more minor­ effect" and added that "the impact is greater black-owned businesses failed. ities than others." when it has the sanction of law." The court At one time, for instance, Fourth Street Indeed, across the tracks from Rene John­ said: "We concluded that in the field of was called the main drag by blacks. There son's home and six miles to the west, things public education the doctrine of 'separate they met, entertained, gambled and got their are much different from Rene's Parkdale but equal' has no place." hair cut. But then black customers began Elementarv. At Sheldon Elementary School, NO SOLUTION YET going elsewhere, black enterprises went out which sits in a middle-class district, only Today, Charles Scott, the original attol'neY of business, and the area was deve.stated by seven of the 235 students are members of for the Brown case says: "We had great hopes urban renewal. And as the middle-class minority groups. The four blacks among that the Brown decision wouid solve all the blacks moved out of black resideutial neigh­ those seven live on an Isolated piece of land warts and evils in the society, particularly borhoods, many of those are2.S were left to bought long before the current shopping deteriorate. area, bowilng ccnter and medical-arts build· education. It hasn't." Says a black longtime Rene Johnson llves In one such neighbor­ resident of this city: "We can't be more than ing were dreamed of. hood east of the railroad tracks and just a Sheldon is a sieek, light-stone building two feet in front of where we started." breath away from a renewal project. She Indeed,'20 years later, most blacl~ students with the name "Charles 1'1:. Sheldon" in lives in a white, frame house with plastic here still attend predominantly blacl~ schools, bold, silver letters on the front. The glass the lack of progress has disillusioned many for storm windows. The ,.ard is cluttered foyer and many of the classroom windows blacks, and the Topeka board of education with a broken air conditioner, a rusting port­ look out over neatly clipped lawns and quiet is back in the courts. As a matter of fact, able barbecue grlll with three mongrel pup­ streets. Sheldon is a sp11t-level school with some blacks don't believe any more that inte­ pies tied to its legs, and a plastic wading the decor coordinated in light colors and gration is the answer. pool heaped with debris from a summer ago. woods. The disillusionment of many a(lvocates of Most yards are barren in Rene's neighbor­ NEW GOALS AND VALUES racial equality isn't confined to Topeka, for hood except for a hedge or two left from W'hen Sheldon opened 17 years ago, it ad­ former and more affluent residents. Now most mitted its first blacl~ children, a brother and racial separation in schools remains in much residents rent homes for $100 or so a month­ of the U.S. The latest federal governmcnt sister (this reporter), who found the school less than their car payments. Many families being built behind their home. For the figures show that in 1972 in the 32 Northern of four have a total income of about $7,000 and Western states, 72% of the nonwhite a year. children at the time, integration was an exciting introduction to new goals and val­ pupils attended elementary and secondary "It's like a bad dream-what's happened schools having a majority of nonwhites. In ues. But it was also a painful ordeal. In­ here in the last iO years," says a longtime sulted and ignored by white pupils, they many big cities, the white fiight to the sub­ Topelca resident and a neigl,bor of Rene's. urbs has resulted in resegregation of once­ "The neighborhood gets worse, the kids act questioned integration and were told by integrated schools. And the Supreme Court and look worse every year, and the bad words their parents that It was necessary: It was is still wrestling with the question of wheth­ are coming out of younger mouths every the way to learn how to talk, act, think and er urban-suburban boundaries can be fall." compete like whites. breached to achieve or restore integration. Rene's school, Parkdale Elementary, is Some blaol~s still agree. But not all are (Brown vs. Board of Education dealt only within earshot of the occasionally paSSing sure any more. Mr. Scott, the lawyer who with de jure segregation-that imposed by trains. It sits alone on a barren block off a helped press the case for integration in law.) The South, statistically at least, ap­ bUSy main street. The square, dark-stone Brown vs. Board of Education, more re­ pears to be doing better than, the rest of bUilding is 50 years old, with hlgh ceilings cently has appeared as a friend of the court the nation. In the 11 states of the Old Con­ that make it hard to heat. Rene's fourth­ in a case seeking separate black school sys­ federacy, the comparable figure for non­ grade classroom is on the second fioor; its tems in several cities. "That's what 20 whites in schools where they were the ma­ decor is subdued, and Rene thinks it's a bit years of disillusionment can do for you," he jority in 1972 was 54%. ugly. The school is 87% minority in a sys­ says. For the nation as a whole, government tem where 19% of the total school popUla­ Other blacks feel the same way. Many figures do show some advances in desegre­ tion is black, American Indian, Oriental or young blacks, who in the 1950s found inte­ gation. In 1972, Washington reports that 36 % Spanish-surnamed. gration an unpleasant initiation into the of the nonwhite pupils were attending what In the entire Topeka system, more than white world, were among the first to em­ might be called integrated elementary and 50% of the 1,669 black children in grade brace the Idea of black power. And like any secondary schools-that is, those whose en­ school attend six of the 34 elementary other community, this basically white-col­ rollment was at least half white. That 36% schools. Four of the schools are more than lar, RepUblican City has its share of mili­ figure was up from 33% two years earlier. 60% black. tants. Meantime, the percentage of heaVily segre­ The federal Department of Health, Edu­ But more than militancy now is involved. gated schools-those with 80% or more of cation and Welfare Investigated the Topeka their students drawn from minority groups­ If Topeka is to effectively disperse its 3,726 system last fall and found "substantial dis­ minority-group students among the 13,500 has continued to fall. The figure was down proportionate" minority composition in sev­ to 45% in 1972 from 49% in 1970 and 68% white in grade and junior high schools, the eral schools. It also found "possible viola­ city might have to scrap the neighborhood­ in 1968. .But such improvement doesn't satiS­ tions in the area of student assignment and fy many blacks. school system and turn to busing. Ironically, In the area of equality of distribution of fed­ the black parents who started Brown vs. uTHINGS SHOULD BE BETTER" eral resources.H Board of Education were fighting for the Here in Topeka, a city of 130,000 popula­ SATISFYING HEW neighborhood-school system and against the tion, Lucinda Todd Is one of those who be­ The board has submitted proposals to try busing of black children to distant schools. lieve that "things should be better by now." to satisfy HEW, but the federal agency has Today busing is an even more emotional Mrs. Todd is the mother of one of the 13 not yet decided whether to accept them. issue, plaintiffs in the Brown case. Like the other Satisfying HEW Is important, for failure to Most white residents oppose it. The parents involVed, on enrollment day In Sep­ correct alleged inequities could constitute school board says busing Will be a "last re­ tember 1950, she was turned away from a noncompliance with a section of the Civil sort." Mrs. Miller, Rene Johnson's aunt, white school With her child, thus laying the Rights Act of 1964 and could cost the system who is suing the school board, Is willing to groundwork for Brown vs. Board of Educa­ $1.7 mlllion in federal funds. accept busing if that·s the only way to inte­ tion. Many people here don't agree with grate the schools. But other blacks who still As the inevitabUlty of 'the Supreme Court HEW's findings:. "It isn't the school's re­ favor integration dou't want it at the cost of decision became clear, Topeka voluntarily be­ sponsibility to change the children's back­ busing. gan to integTate its schools. In the 1953-54 grounds or improve the neighborhood," says Talk to Linda Bro'.vn. She doesn't re­ school year, 10 blacks were admitted to for­ Winfred Tidwell, the black principal of Park­ member much about the historic Brown \'s. merly all-white schools; the next y~ar, 113 dale Elementary. "Schools can only do so Board of Education case that bears her more blacks joined them; and eventually much. We have fine teachers and good pro­ name. But she does remember being bused hundreds more followed, including this re­ grams. We can't do everything." in the years before the decision. porter as a fourth-grader. Topeka officials contend that they haTe "I left home about 7:30 each morning Mr. Scott,'the attorney in the case, says one of the finest school programs in the and walked six blocks to the bus stop. I got that "the group that should have benefitted country. "We can offer the stUdents any to school about 8:30, some 30 minutes before most" from, integration__meaning the number at alternatives to traditional work the school doors opened," she says. blacks-"has paid a hl.gh. prIce for prac­ and. development programs that appeai to Sometimes she waited in the snow and tically nothing." Adds James Woodson, an all backgrounds and talents," says Merle freezing weather. Sometimes the bus didn't attorney and the only black ever to serve Bolton, the superintendent at schools. Board come, and she walked to Monroe Elemen­ on the local schooi board: "Blacks didn't documents show that because of federal tary School, more than 20 blocks away from 14906 CONGRESSIONAL RECORD ~ SENATE May 1$, 1974 her home. Sumner Elementary was only With. Now, HEW officials should be able to [From the Topeka Dally Capital, seven blocks away-but it was white. operate more efficiently. Apr. 17, 1974] Now a 30-year-old mother of two, Linda "They (HEW) now know What their au­ MINORITY LIMrr AT 40 PERCENT Brown Smith lives in an integrated section thority is in enforcing the ciVil rights law," IN ScHOOL PLAN of town in sight of Hudson Elementary Morris said. "But, the Office for Civil Rights School. She is skeptical about the new inte­ will never act so swiftly that they impose (By Mike Hall) gration suit because the easiest solution things on the community." A Topeka school board plan to comply with seems to be busing. "I don't want my kids How has desegregation and cross-town bus­ a directive of the U.S. Dept. of Health, Edu­ bused," she says. "I know what that's like." ing affected Wichita schools? cation and Welfare to eliminate racial im­ Morris said, "It has been extremely bene­ balance in Topeka Schools likely wlll set [From the Topeka Sunday Capital-Journal ficial In bringing about some social changes minority enrollment at each school at a Mar. 17, 1974] in this community that have been needed maximum 40 percent. here and throughout the world," That statement was made Tuesday night "lICllITA Bus PI.AN TOOK 6 YEARS OF TALK The desegregation effort helped in areas by Dr. Mark Morris, board presldent,after (By Donald Brazeal) outside education as well, he said. the board's meeting at Holliday Junior High. Wichita Public Schools were charged in "After we integrated, we were more aware The board entered Into its official minutes 1966 with Violating the 1964 Civil Rights Act. of residential black famllies in every area in the latest letter from the HEW. but did not Similar charges were brought against Topeka tile city. And, It has grown. schedule another meeting this month for Public Schools this year. "I am convinced, by our placing black peo­ taking action on any plan to balance the As is now happening in Topeka schools, ple In every school in this community, It schools racially. the U.S. Dept of Health, Education and Wel­ gained acceptance of blacks in every part The latest letter gave the district untl! fare Office for Civil Rights stepped In to tn­ of the community," Morris said. May 1 to submit a plan that would be in sure compliance with the law In Wichita. Previously, the schools could not place compliance with the 1964 CiVil Rights Act. After more than six years of negottatlons, black office and business education students The letter threatened "formal proceedings" Wichita schools received full approval from anywhere but in black operated businesses, if such a plan was not in the Kansas City HEW last year. Wichita ended a school sys­ he said. office by then. tem which had included some schools con­ "We can't document achievement advances Tuesday night Morris said he is confident taining 99 per cent black students and many for black students because of integration that deadlines would continue to be extended schools With no black students. Cross-town efforts. But, we can document the greater by HEW as long as Its officials were convinced busing of more than 6,500 students was the holding power of the schools with black stu­ the district Is making progress toward adopt­ primary means used to even the racial dents. Therefore, they are probably achieving ing such a plan. balance. more on an individual basis. Morris said HEW oftlclals most often use Did desegregation have detrimental effects? 20 percent as a gUideline for how much the Wichita Supt. Alvin Morris was asked re­ In general, the district feels the benefits racial minority enrollment of each school cently why busing was considered necessary. far outweigh any problems, Monls said. may vary from the district average The school board decided early in the Morris said there are no indications of percentage. planning process that every school In the lowered achievement levels by white In the Topeka district more than 19 per community should be Involved, Morris said. students. cent of the stUdents belong to a racial Changing boundaries around the predomi­ The schools did have increased costs in minority which under the 20 per cent guide­ nately black areas to achieve an acceptable transportation. But, the district was already line would allow individual schools to vary racial balance would In general be only a busing large numbers of students because from no minorities to 40 per cent minority. short-range solution. Morris said. the district is so spread out. Also, food serv­ PresentlY Parkdale Elementary is 87 per­ Many people in these affected areas would ice In schools had to be expanded for stu­ cent minority, four other elementary schools start fieeing to other parts of the city not dents who were bused and could not go home (out of 34) are above 40 percent: Monroe, affected by the boundary changes. As a re­ for lunch, school officials said. 80.8; Belvoir, 68.1; Lafayette, 63.3; and Low­ SUlt, the boundaries would have to be Teachers who had taught only White, mid. mal,}.,Hill, 46.8. changed and extended every year, Morris said. die to upper income students had some Two of the 12 junior high schools are above He said the basic question Is "Do you want traumatic experiences" when black stUdents 40 percent: East Topeka, 63.3; and Crane, to have an ImlJact on alI the strata of the came into their classes, Morris said. 50.8. community?" Do you want to involve all "It wasn't easy for them to adjust to other All three high schools are below 40 per­ races, cultures and income levels? cultures," he said. "The impact on the pro­ cent: Topeka High, 29.2; Highland Park, "If so, it demands that you look at a plan fessional staff required a terrific amount of 20.6; and Topeka West, 1.3. that affects more than a fraction of your inservlce work," Morris continued to downplaY the possl­ school district," he said. Other school officials said black stUdents bllity of busing as part of the plan to·bring Wichita oftlclals could have concentrated suffered some of the worst challenges In the the schools into balance. He sticks by the black stUdents In a few schools with the max­ desegregation effort. In a sense, they left the original list of five alternatives adopted in imum allowable percentage of blacks. But, comfort of a school where they were the a board resolution on Feb. 8. That list In­ the school board decided to equally alfect all majority to attend schools where they were cludes remodeling of old schools and con­ schools by trying to get as close as possible definitely the unwelcome minority, one struction of new schools, but made no to the system-wide percentage in each school, school oftlcial said. mention of busing. he said. When a person Is part of a minority, he In other action, the board Tuesday nlgM The problems in Wichita were not exactly starts following the "herding instinct" which heard a plea from Sam Hurd, chairman 01 comparable to Topeka's current situation. may allenate him from the rest of the school, the Citizens Advisory Committee to the Wichita officials are quick to say. For ex­ the oftlclal said. board, for consideration of a cost of living ample, the Office for Civil Rights has reor­ What was public reaction to busing and increase for teachers salaries. Hurd noted ganized since 1967. desegregation? that the National Education Assn.-Topeka However, Topeka oftlcials have sought ad­ The publiC had a lot of "fear of the un­ has made such pleas at each of the last two vice from Wichita oftlciais because of what known" and "safety anxiety," Wichita edu­ board meetings and that the board continued may be some similarities. School officials from cators said. to make no commitment. Omaha recently Visited Wichita for assist­ "Parents aren't as concerned about busing "A cost of Uving increase would tell our ance. And, Kansas City school officials were as most people believe," Deputy supt. J;lean teachers, 'we care,' .. Hurd said. reportedly interested in getting information Stucky said: "The issue Is What are they bus­ Dr. Gordon Summers, a board member, about Wichita desegregation elforts. ing you for," responded, "We have this under stUdy at the supt. Morrison was asked what kind of Other school oftlcials talked about persons present time." experience did you have in dealing with HEW who moved out of Wichita claiming they op­ oftlcials? posed busing. But, they moved to rural areas [From the Topeka Daily Capital, May 1, 1974] Wichita officials had numerous contacts which had always bused students. LONG TRIPS FOR PuPILS WEIGHED IN NEW PLAN with HEW officials, and some contacts "Were "Once the plan was Implemented, much of (By Mike Hall) not too pleasant," Morris said. the anltiety was dissipated," A tentative plan to close seven of Tope­ "For us, there wasn't any question about During the planning stages, Wichita ka's public schools would have some elemen­ what they wanted," he said. "The question schools operated a rumor control center to tary children traveling 1% miles to school In was 'COUld we do everything they wanted us handle and squelch the spread of misin­ one attendance area, according to Jim to do?' Our capability for meeting their de­ formation. Also, numerous public meetings Spence, director of public relations for the mands just wasn't there." were held to Involve the community. district. The long period of time required to nego­ Would Wichita schools have desegregated Spence said that was an approximation. tiate with HEW got on everyone's nerves, he without the push from HEW? However, the plan announced by the Board said. Vagueness and slowness are inherent in Morris said, "I think we would have been Tuesday morning ls so preliminary that no government, he said. where we are now in most ways. I don't think detailed plan has been designed for how the Silt years ago, Wichita schools were one of the cross-town busing would have been a part children wlIl get to the schools. the first large school systems HEW dealt of it without the federal government's push," Harry Craig Jr., acting president of the May 15,1974 CONGRESSIONAL RECORD - SENATE 14907 board, said Tuesday afternoon that some in­ tion of the board is to maintain the present volved in to finalize a plan for U.S.D. 501, tra-attendance .area busing is a possibility size teaching staff under the new plan. Craig and that vou take Immediate steps to in­ but the board still believes crosstown busing said the board wants to keep the low pupil­ ,'olve parent Iepresentatives ... in the step­ by-step development of a plan." won't be necessary. teacher ratio and the small class size the In a special board meeting Tuesday morn­ minority students now have. He said to do ing, the board voted to request another 30~ that, the district will need the same number [From the Wichita Eagle and Beacon] day extension from the Kansas City regional of teachers, assuming that enrollments dis­ LOTTERY To PICK PUPILS FOR POSSIBLE office ot the U.S. Dept. of Health, Education trict-wide do not drop. BUSING and welfare tor submitting the final plan Jim Nelson, Executive director of the Na­ Next fall's lottery for elementary school for improving racial balance in the schools. tional Education Assn.-Topeka, said after integration has been released by the Wichita The plan unveiled by the board would Tuesday's meeting he hopes the teachers or­ Board of Education. close Rice, Belvoir, Clay, Monroe and Park­ ganization also can be involved in the plan­ Murray Harris, director of communications dale Elementary Schools and Crane and High­ ning, because the teachers will be directly af­ for the school district, said actual number land Park Junior High Schools. Students in fected by whatever changes are made In the to be assigned for busing will be deter­ those attendance areas would be transferred system. mined bv the number of children volun­ to an adjacent attendance area. How soon the plan would be In effect also teered for busing by their parents. Topeka school .officials say HEW officials Is uncertain. The board asked for the 30­ Students must be cross-bused to continue from the Kansas City office never have given day extension from HEW so It could study de­ the board's integration plan. strict numerical. limits· to how high or low tails of these uncertain areas and to get reac­ "The school system prefers voluntary par­ the racial percentage of each school may go. tion from the community to such a plan. As­ ticipation, since voluntary participation cre­ However,the Topeka administrators say the suming that this plan or a modification was ates the mo~t beneficial school circumstance federal district court tor the District of Co­ adopted by the board before June I, and as­ for both children and their families," Harris lumbia has ruled in the case of Adams vs. suming it received the blessing of HEW, said. Each elementary school has sent letters Richardson that no school in a district should Craig said the new boundaries could be in ef­ to Its patrons, providing information about vary more thaIl 20 per cent trom the average fect for next fall. the integration plan and encouraging volun­ racial makeup of the entire district. The community involvement in the plan teers. Parents were asked to indicate their In the Topeka district 19.3 per cent of the will be In part a series of meetings at in­ preferences to their schools by April 30. stUdents are racial minority members. That dividual schools to explain the plan to par­ Harris said It appears there are slightly would allow any school to have between no ents in that attendance area. The first one fewer volunteers for 1974-75 than there were minority students and 39.3 per cent minority will be at 8:30 p.m. Wednesday at Hudson Ele­ for 1973-74, which means some pupilS will students. mentary School. have to be randomly selected for reassign­ Two schools would be above 40 per cent in At the request of the Parents Concerned ment according to the blrthdate list. the proposed plan, but the board said Tues­ for Justice In Education, the board Tuesday The lottery plan ranks all pupils in the day it teels the plan will be acceptable to morning agreed to set up a committee of one system from 1 to 306, according to birth HEW. The plan would have the schools rang­ parent from each school in the district and dates. In the selection process, the numbers ing from a low Ot .19 per cent at McEachron representatives of other segments of the 1 through 306 were matched in sequential to a high of 49.69 at Latayette. community. That committee would be di­ order with the calendar dates Jan. I through The present range is from no minority stu­ rectly involved in shaping the final plan, Dec. 31. These numbers were then run dents at McClure to a high of 87 per cent at Craig said during the meeting. through a computer and randomly assigned Parkdale. No board action was taken to establlsh to priority numbers. The 1% miles Spence based his estimate the committee, but Bill Simons, head of the Depending upon how many students ot on is tor a child in the Rice district who parents group, was instructed to contact each race are needed to complete the pupil would be transferred to the Latayette attend­ Supt. Merle Bolton about setting up meeting. population at each of the three elementary ance area. Maps and complete information schools in the Assigned Attendance Area­ on the proposed boundary lines are available (From the Kansas City Times, May 2, 1974] Ingalls, L'Ouverture and Mueller-pupils at each school in the district and at the ad­ TOPEKA PLANs INTEGRATION WITHOUT BUSSING whose birth dates appear at the top of the ministrationbuildiI'lg; 415 W. 8th. PuPILS list will be reassigned to these three schools. Administrators and board members point The school board has revealed a plan to It probably wlll be necessary for about 500 out there are many aspects of the plan that meet a federal mandate issued in January students to be taken from the lottery list for need to be studied before final approval or to end de facto segregation in Topeka public reassignment, Harris said. alteration can be made. schools. The plan would involve closing two The school system's data processing and "We're not sure that this is the number junior high schools and five elementary pupil accounting division is working on the that 'Will be eventually closed," Craig said. schools and rearranging school boundaries random selection process, and Harris said Other uncertainties include what to do to absorb students in other eXisting schools. after specific aslgnment dates are known this with the school buildings when they are no There would be no plan to build any new information will be communicated to all ele­ longer used as schools. craig said there has schools. mentary schools. been no discussion Ot razing any of the build­ The board's plan, unveiled at a special After the schools receive the information, ings and that the suggestions tor their use school board meeting, was described as ten­ Harris said, parents may contact their re­ include centers tor Head Start, Follow tative by Harry Craig, board vice-president. spective schools for Information about op­ Through, schools tor gifted stUdents, special He said the plan is "not engraved in stone," eration of the plan In that school. education, career education, alternative edu­ and may be changed. All volunteered pupils and selected pupils cation, expanded programs Ot art and music It calls for closing Highland Park and will receive an assignment card for 1974-75 and community activities. Crane Junior High Schools and Monroe, Park­ before the end of the current school year, Spence noted at least one Ot the sugges­ dale, Rice, Belvoir and Clay Elementary Harris said. tions had come in a letter from a member ot Schools. Parents should not consider reassignment the community and that this is one area The U.S. Health, Education and Welfare definite until they have received a letter from where the community is especially urged to Department ordered the board last January the school system, Harris stressed. make suggestions. to develop a plan for bringing about better Craig said he is markedly concerned about minority balance among public schools, The PRESIDING OFFICER. Who the distances to school for youngsters in kin­ which now range from zero to 87 percent mi­ yields time? dergarten through third grade. He said the nority enrollments. Mr. JAVITS. Mr. President, I yield bUildings might be used for K-3 classes as a The board is seeking a second extension myself 5 minutes in opposition to the way to reduce the distance the children until june 1 for finaliZing a plan acceptable Gurney amendment. would have to go to school. to HEW. Asked what other alternative to The PRESIDING OFFICER. The Sen­ Another uncertainty is the amount Ot ex­ closing some schools and rearranging student ator from New York is recognized for 5 pansion that will be needed tor the facilities enrollments was available to the board, Craig minutes. that will grow in enrollment. The Lafayette replied: attendance area would nearly double in size. "About the only alternative that is open Mr. JAVITS. Mr. President, first, I will This year there are 361 studenta in the at­ ... would be that ot busing of students." say a word about the Ervin amendment tendance area. The proposed attendance area Craig said bussing remains unacceptable which we had before and which the Sen­ would have 646 students. The school was de­ to the Topeka board. Craig said a I-way ate rejected before. It concerns the free­ signed to hold 603 students. bussing system is totally unacceptable to the dom of choice of a school system. There Craig said one possibil1ty this fall would board, and it busing is the only way accept­ are two critical cases that I would like to be placing mobile classroom units at those able to HEW, then 2-way busing might be have on record in that matter. schools for immediate needs, with further considered as a last resort. is expansion of the bUildlngs to follow in later Representath'es of a new organization, There the classic case, the New Kent years. Neither. he nor Spence foresees any called Concerned Parents for Justice in Edu­ County case, decided in 1968, in which need tor a tax Increase to impove school cation, appeared at the board meeting, de­ the court said as bluntly as anyone couId bUildings to meet the HEW requirements. manding that local school oIDclals "immedi­ say that the New Kent School Board Spence and Craig emphasized the inten- ately stop any steps that you are now in- freedom of choice plan couId not be ac- 14908 CONGRESSIONAL RECORD - SENATE May 15, -1974 cepted as a sufficient step to effectuate Mr. BARTLETT. Mr. President. will Mento Their nonconformity soon led to integration, and the court then pro­ the Senator from Florida yield me 3 thedemise of theprogram. ceeded to strike it down. minutes? However, Tulsa did not give up. They Then we have the other case, the old Mr. GURNEY. Mr. President, I yield 3 were willing to try otherInnovative alter­ case of United States v. Klein, 80 U.S. minutes to the Senator from Oklahoma. natives, and they were successful. Tulsa 128 (872), which held that it is unconsti­ The PRESIDING OFFICER. The Sen­ has turned what were previously all­ tutional for Congress to require a rule ator from Oklahoma is recognized for 3 black schools into learning centers with of decision in the guise of withholding minutes. the highest educational opportunities. jurisdiction to order particular remedies. Mr. BARTLETT. Mr. President, in The schools were purposely staffed with Mr. President, I point out that that is 1969 while I was GovelTIor of Oklahoma, excellent personnel. The principals and precisely what the freedom of choice forced crossto\\'11 busing first came to teachers were some of the best available. plan does, and I hope it will be rejected. my attention as a serious problem facing As a reSUlt, the goal which forced busing Now as to the Gurney amendment: our educational institutions. was supposed to achi'eve yet failed to It is anomalous to me that on the 20th Like man3<' others, I deliberated some achieve, is being accomplished volun­ anniversary of Brown, and after the time over the arguments concerning tarily. Whites are joining their black hard work at compromise, which seems forced busing before making my own brothers and sisters for the best of rea­ to be working in respect to public school mind up and before publicly stating my sons-they all want a good education, desegregation, and busing as an in­ position. . and they are getting it. cident to it, that we should now upset The stated goal of those favoring Mr. President, I am pleased to be a co­ the applecart and endanger in a very forced busing for racial balance was a sponsor of Senator GURNEY'S amendment serious way, at a very bad time, race good goal; namely. to provide quality to S. 1539. This amendment, overwhelm­ relations and social relations in our education for black children. ingly passed by the House, will hopefulb' country; and beyond that, which is However, I came to the conclusion that bring an end to a dismal era in the edu­ serious indeed, portentous in terms of in effect, busing was an exercise-an un~ cational process in our country. Hope­ our whole land, there is a proposal that productive and awkward one at that-to fully the amendment will be the death most of the people who are concerned require this generation of children to knell of the forced busing sYstem, whose about busing have cases that are in purge society by sacrificing for the goals were good but whose means were midcareer at this time, and the tailor­ wrongs and inequities generated by unfair, discriminatory. and contrary to ing of individual cases, in my judgment, parents, grandparents, and great grand­ the entire concept of social justice-and has worked out to be the best way, and parents. whose lofty goals were never achieved. certainly, to me, has appeared to be in I publicly said then that­ The amendment will hopefully mean the highest interest of the country and Discrimination to end discrimination is in­ the return of the neighborhood school the best plan for the future of the coun­ defensibie and Is a cure as sick as the disease system, a system which was successful try as well. That is the way we are try­ Itself. because parents and children took pride ing to stratify ourselves in this amend­ Five years have passed and forced in their local schools-a sense of pride ment. and accomplishment and belonging In addition, we put ourselves in dan­ crosstown busing continues. My opinion has not changed but has been buttressed which has been lost in the maze of cross­ ger of a confrontation with the court by what we have learned in the interim. town busing plans. and the many sections of the country, As I interpret this amendment, volun­ which could be very harmful on a pro­ Busing has been promoted on the basis tary programs such as that in Tulsa will cedural point. that the end justifies the means; but be a primary means available to achieve There will be, whenever the Senate even ignoring the philosophical problems the goals of quality education for all. I wishes it-and that will be next Mon­ with that argument, the results which am confident, as proved in Tulsa, that have been achieved have not been day or Tuesday-an opportunity to take worthy. voluntary programs, as worked out by the entire House bill which contains local school systems. will not only be that part. It is a total package and in­ Forced crosstown busing does not ac­ more just but in the end will be more volves this amendment. It does seem to complish the goals of either quality ed­ likely to achieve that elusive goal of me to be somewhat improvident to take ucation or social integration of the races. quality education for every young Ameri­ out this part of the package and try to To the contrary, forced busing has can. legislate it. further polarized the races and has often Mr. President, we are supposed to be a Also it is very, very serious in respect resulted in the general deterioration of representative democracy. And the peo­ of the matter we are discussing here. A educational opportunities of both the ple have spoken and are continuing to tremendous structure has been built up black and white children being bused. speak in favor of the substance of this in the country. Contrary to many social changes, such amendment. The people do. not want Let us remember that as one of the as that accomplished by Brown against forced busing of their schoolchildren. The devices in this amendment, there is a Board of Education in 1954 which ush­ decision of this body should be quite easy tremendous tranquillity that has been ered in the era of civil rights, there has and, as in the House. overwhelming. built up in many areas of the country been no public acceptance after the Mr. GURNEY. Mr. President. what is where this system has worked out satis­ rather prolong-ed trial period of forced the time situation? factorily. Now, in pursuit of a single busing. Public opinion polls still refiect The PRESIDING OFFICER. The bill, we are expected to throw that into that the vast majority of Americans, Chair is advised that 12 minutes remain. the discard. black and white, continue to oppose However. both sides may have more than I could not think of anything more forced busing. After 6 years busing re­ 12 minutes if they desire to use the time improvident in the interest of America, mains a rather unimaginative, expensive, on the bill. and a more highly volatile subject, than and counterproductive means of achiev­ Mr. PELL. Mr. President. I yield to the to throw into the discard everything ing the goal most Americans desire­ Senator from Indiana for a unanimous­ that people have worked hard for, and quality education for all our young consent request. geared themselves up for in terms of people. Mr. BAYH. Mr. President, I ask for equality. That is strictly upon the ap­ There are alternative, realistic meth­ the yeas and nays on my amendment. plication of one plaintiff. It seems to ods of doing what forced busing was sup­ which I understand will be voted on at me to be the height of improvidence. I posed to achieve. 5 o'clock. hope very much that the Senator does For instance, in my hometovm of The yeas and nays were ordered. not do it. Tulsa, we are having excellent success Mr. ERVIN. Mr. President. will the The PRESIDING OFFICER. The with a voluntary busing program. A pre­ Senator from Rhode Island yield to me time of the Senator has expired. vious voluntary program had failed be­ so that I may get the yeas and nays on Mr. JAVITS. Mr. President, I yield cause it did not produce an enhancement my amendment? myself 30 additional seconds in opposi­ of the educational opportunity and its Mr. PELL. I yield. tion to the amendment. only inducement was the challenge of The PRESIDING OFFICER. The Sen­ I think, in view of the things that I an integrated school. Many of the stu­ ator from North Carolina will have to have said, I shall, at the appropriate dents and faculty who were attracted have unanimous consent in order to do time, move to table the Gurney amend­ proved to be nonconformist in a neces­ that. ment. sarily structured educational environ- Mr. ERVIN. Mr. President. I ask May 15, 1974 CONGRESSIONAL RECORD-SENATE 14909 unanimous consent at this time that I Second, I know of parents right now, race £01' the purpose of student assign­ may have the yeas and nays on my in fact, one of them called me at mid­ ments is or can ever be a valid part of amendment. night last night, wanting to know whom a judicial remedy in desegregation cases. The PRESIDING OFFICER. Without he could telephone or telegraph to urge The Ervin amendment insist~ that the objection, it is so ordered. support of the Gurney amendment, and Constitution is color blind-that a cit­ Mr. ERVIN. Mr. President, I now ask I tried to tell him. izen-is a citizen, and it supports the for the yeas and nays on my amendment. They are not only busing students proposition established by the Brown I The yeas and·nays were ordered. across town to keep them away from the decision that the Constitution denies to Mr. JAVITS. Mr. President, will the neighborhood schools, schoolchildren are States and to Congress the power to clas­ Senator yield tome for the same pur­ going to attend two schools at once, one sify students by race for the purpose of pose? school in the morning and another in the school assignments. Mr. PELL. Mr. President, I yield to afternoon, which means they are neither Mr. President, I maintain that any the Senator from New York. fish nor fowl; they are not in either system of school assignments which is Mr. JAVITS. Mr. President, I ask school. free of State-imposed racial classifica­ unanimous consent that it may be in This busing is going to tear the whole tions must necessarily be based on as­ order to ask for the yeas and nays at public education system apart in our signments from within geographically this time 011 the motion to table the city, and if the Supreme Court, which compact, reasonably drawn school at­ Gurney amendment. God forbid, should go ahead and assert tendance boundaries, coupled with a The PRESIDING OFFICER. Without the Detroit decision across district lines, freedom of choice plan described in the objection, .it is so ordered. we are liable to have a revolution in our definitions provided by act. Mr. JAVITS. Mr. President, I now ask own State against the school boards and Mr. President, let me read the for the yeas and nays on a motion which the court system. definition: I propose to make to table the Gurney Mr. GRIFFIN. Mr. President, will the (g) "Freedom of choIce sy:..'em" meens a amendment. Senator yield? system for tile assIgnment of students to The yeas andnays were ordered. Mr. DOMINICK. I yield. publlc schools and wIthIn publlc schools Mr. PELL. Mr. President, I have had Mr. GRIFFIN. I wonder if there is any maintained by a school board operating a the opportunity to listen to the debate reason to assume that if the Supreme system of publlc schools in whIch the public all day on this SUbject, and have been Court buses across county lines and city schools and the classes it operates are open lines, they would not also order busing to students of en races and In whIch the studying it and thinking about it over stndents are granted the freedom to attend the last few evenings. I think what the across State lines. public schools and classes chosen by theIr effect of the Gurney amendment would Mr. DOMINICK. The Senator is to­ respective parents from among the public be: it would be like to try to unscramble tally correct. There is no variance in the schools and classes avallable for the instruc­ an omelet which some may wish had not logic at all. They could easily do that. tion of students of their ages and educational been scrambled; but it has been scram­ I could see half the people in Colorado, st3udings. bled; and schools are moving ahead in on this basis, being bused to Wyoming Mr. President, it is unreasonable to the right direction. all of a sudden. contend that a school system operating What this amendment would do, if I urge the support of the Gurney under a plan as thus defined is uncon­ passed, to my mind, would be to move amendment. stitutional. It is worthy of note that the backward and undermine a great deal The PRESIDING OFFICER. The Sen­ definition accurately describes what the of the benefit that has accrued over these ator's time has expired. Who yields U.S. Supreme Court refer_ to as a unitary years. time? school system. There is certainly no pos­ Desegregated schools have come to be Mr. GURNEY. I yield 3 minutes to the sibility under such a system for racial accepted to a great extent across the Senator from Alabama. discrimination within schools or classes length and breadth of our land, and we Mr. ALLEN. Mr. President, having within such schools. Yet, all sorts of ob­ would be going 180 degrees in the wrong joined in cosponsoring the Student jections will be raised to the proposal direction, in my opinion, if we passed the Freedom of Choice Act with the distin­ based primarily on social theories rather Gurney amendment. For that reason I guished Senator from North Carolina than on law. would urge my colleagues to vote against (Mr. ERVIN) and other Senators, I Mr. President, it will be said that a this amendment. strongly support the Ervin amendment. unitary school system operated under Mr. GURNEY. Mr. President, I yield 2 I am convinced that the Student Free­ the freedom of choice plan would not re­ minutes to the Senator from Colorado. dom of Choice Act is a proposal before quire racial balance in schools. That is Mr. DOMINICK. Mr. President, I take the Senate which offers realistic relief certainly true but it is also true that the this time to try to outline for my col­ from abuses of judicial powers stemming leagues what has happened in the Den­ from the exercise of mllimited discre­ U.S. Supreme Court has never said that vel' case. tionary powers in formUlating remedies racial balance in enrollments of public I have voted, as I think the Senator in desegregation cases. schools is constitutionally required. from New York and the Senator from From the standpoint of relief I will It will be said that the freedom of Michigan know, for every single civil take it in any shape, form, or fashion, in choice plan does not permit the Federal rights bill since I have been a Member any amount--and wherever it can be judges to impose the magic "viable racial of Congress. found. This accounts for my support of mix" formula governing school enroll­ We passed a fair housing bill in Colo­ different approaches to the problem. In ments by race as so many sociologists in­ rado, as a consequence of which the short, I am willing to buy the fleas with sist upon and, as do some U.S. Federal blacks moved to a new area. The school the dog if there is no preferable alter­ judges. True, but neither does the U.S. in that area became about 80 percent native. However, I am convinced that Supreme Court contend that the Con­ black. At. that point, the school district the Student Freedom of Choice Act stitution requires a "viable racial mix" said this was a segregated area, even which amends the Civil Rights Act of or any other degree of racial mix in pub­ though it was de facto segregation. The 1964 offers an excellent alternative to lic schools. matter was appealed to the Supreme other approaches to the problem and It will be contended that the freedom Court, and the Supreme Court said they that it is preferable for many compelling of choice proposals would deny U.S. dis­ wanted the trial judge to determine reasons. trict courts jurisdiction to hear desegre­ whether this was segregation. For example, most antibusing propo­ gation cases. Such a contention is totally He found that it was segregation, and sals imply an acceptance by Congress of without merit. In fact, the freedom of instead of doing something about that the premise that U.S. district court choice proposal simply amends the Civil one particular school, he then said the judges have the power to classify stu­ Rights Act of 1964, which vests jurisdic­ whole city of Denver had to be bused. dents by race for the purpose of assigning tion in U.S. district courts in desegrega­ What has this busing order done? Al­ and transporting them to schools. Pro­ tion cases. U.S. district comis retain that ready, before it goes into effect, which it posals of this type seek only to limit the jurisdiction. The Freedom of Choice Act does in September, one. of our high exercise of that implied power. The stu­ merely clarifies the present intention of schools, under previous orders, has been dent Freedom of Choice Act, which will Congress concerning the formulation of closed thI'ee times, once for 2 weeks, on be the Ervin amendment, tc be voted on judicial remedies in de facto or de jure account of the vIolence that went on wIth following the Gurney amendment, re­ segregation cases, but oIlly to the extent the kIds who were bused in. jects the premise that classifications by necessary to curb the discretionary 14910 CONGRESSIONAL RECORD - SENATE 'May 15, 1974, power in U.S. district court judges to plans are not unconstitutional, while prohibited powers, to reach a particular classify students by race for the purpose maintaining that such plans are not con­ end prescribed by judges is a meaning­ of making school assignments or for the stitutionally permissible unless accom­ ful measurement of the influence of the pw-pose of allocating school funds or for panied by coerced school assignments positivist theory of law on the present the purpose of conditioning the grant of based on unconstitutional racial classi­ members of the U.s. Supreme Court. Federal school funds on such W1COnsti­ fications Under the positiVist theory of law, a tutional racial classifications. Mr. President, the crowning contradic­ Constitution may be recognized as the Neither does a freedom of choice school tion in present rulings by the Supreme law which governs government, but a plan preclude busing. It merely denies Court is found in the admission that the select body of men,a central committee, the U.S. district cow·t judges the jurIs­ Constitution does not require any par­ a political party, or a nonelected jUdi­ diction and, therefore, the power to enter ticular degree of racial mix in schools cial body has the power to say what the orders which require either the assign­ but that the Constitution imposes an Constitution means. Therefore, any com­ ment or transportation of students and "affirmative duty" on local school officials mand that these men may give and have teachers, based on unconstitutional to adopt the unconstitutional means of the power to enforce may become the law racial classifications. classifying students by race and assign­ of the land. The power of the U.S. Su­ Mr. President, it will be contended ing such students by race and transport­ preme Court judges and inferior court that Congress does not have the power to ing them by race to achieve the. maxi­ judges to enforce their decrees lies in the limit U.S. district court judges in the mum feasible degree of racial mix in the power to punish private citizens and exercise of discretionary powers in vin­ schools. Thus, by the process of this Alice public officials for contempt of court and dication of a right protected by the in Wonderland reasoning we are asked to impose confiscatory fines and impris­ equal protection clause of the 14th to believe that the Constitution requires onment without benefit of trial by jury. amendment. In answer, I can only point the maximum feasible degree of racial We all know that the positivist theory out that the Civil Rights Act of 1964, mix in schools but it does not require a of law is the handmaiden of totalitarian­ which the Student Freedom of Choice lesser degree of racial mix. ism governments and that the primary Act amends. does precisely that. It denies Mr. President, in each of these in­ goal of such governments is to subject its U.S. district court judges jurisdiction stances, the Court is in the untenable citizens to complete domination and con­ and power to enter orders requiring bus­ position of affirming rather than deny­ trol by the state. So, not only does the ing to eliminate racial isolation in ing the validity of a proposition of con­ "affirmative duty" doctrine leave our schools attributable to de facto segrega­ stitutional law which contradicts its Constitution in a shambles but it also tion, thereby entirely excluding from original proposition. It stands to reason leads to human bondage to the state. protection of the equal protection clause that the foundation of a government of The late Supreme Court Justice, Rob­ a. comprehensive system of segregation limited powers is destroyed if acts pro­ ert H. Jackson, in commenting on the in areas outside of the South. The stu­ hibited by the Constitution can be legit­ positivist infiuence in shaping racial and dent Freedom of Choice Act is not nearly imized by acts allowed by the Constitu­ ethnic laws in Nazi Germany, said: tion. That is the situation today and it The so-called positivist took over, and any so drastic; it merely precludes U.S. is reasonable to ask how these contradic­ cDmmand that some authority had physical district court judges from making un­ tions came about. power to enforce became law. Since the constitutional racial classifications and Under the U.S. Supreme Court Plessy Nuremberg postmortem-few will believe entering orders based on such classifi­ that these positivist doctrines are weapons decision, racial classifications were per­ In the struggle to preservE' liberty. cations. mitted. Such classifications were justi­ I must add in this cOlmection that any­ fied by invoking the largely fictional f'ep­ Mr. President, the "affirmative duty" thing which the U.S. Supreme Court may arate but equal doctrine. In the Brown doctrine is straight from positivist have said in regard to State laws on this decision, some 84 years later, the Su­ teachings. We recall that the Central subject is entirely irrelevant since States preme Court reversed and denied the Committee of the Communist Party of do not have the power which was vested power to States and to Congress to make the Soviet Union once imposed an af­ in Congress by the 14th amendment to racial classifications in the area of pUb­ firmative duty on scientists and school enact legislation to delineate and vindi­ lic school education. The decision was officials in the Soviet Union to adopt cate rights protected by the amendment. justified on psychological and sociologi­ and teach the Lysenko theory of What the Court has said, which is rel­ cal grounds which later proved to be as genetics-only to be embarrassed by sub­ evant to this proposal, is that, "Absent fictional as was the separate but equal sequent proof that the theory was based from a constitutional violation there rationale. not on facts but on sheer fabrications. would be no basis for judicially ordering The present Supreme Court has, for all This example of the "affirmative duty" assignments of students on a racial practical purposes, reversed the Brown concept of state power has meaning for basis." This observation was made in the decision. It now justifies racial classifica­ us in the context of school cases. The context of the discretionary equity power tions on an equally fictitional and dan­ U.S. Supreme Court has not yet sub­ of U.S. district court judges to classify gerous theory that the Constitution im­ scribed to the Lysenko genetic theory or and assign students to school on a racial poses an "affirmative duty" on local to anyone of the several sociological basis. What the Court did not say and school boards to make racial classifica­ theories advanced by Pettigrew, Jensen, seems to have forgotten is that the con­ tions and to .assign students to schools Armore, Moynihan, or a host of other stitutional violation condemned by on the basis of race. Thus, acts prohib­ sociologists and political scientists who Brown I was the power to make racial ited by the Constitution are made to im­ are actively competing for recognition classification of students in the area of pose an equal obligation with acts per­ of their theories by the Supreme Court. public school education. mitted by the Constitution. The effect is Neither has the U.S. Supreme Court yet Mr. President, once the Supreme Court that the Constitution is made to read so prescribed the magic "viable racial mix" chose to overlook the constitutional pro­ as to require one generation of school­ formula to govern public school enroll­ hibition against racial classifications, it children to pay the penalty of correcting ments. But the important point tore­ has been racing up and down blind al­ undesirable consequences of previous member is that the Court has established leys. It is now in an embarrassing and U.S. Supreme Court decisions. the doctrinal basis for asserting the untenable position. Mr. President, the danger in this "af­ power to do so. firmative duty" doctrine becomes appar­ For the moment the Court seems con­ For example, we find the Court saying ent when we consider the vague and in­ tent to use its "affirmative duty" doctrine on the one hand that racial classifica­ definite meanings of the term "equal to compel a maximum feasible degree tions for the purpose of making student protection of the laws" and when we of racial mix in public schools in order assignments is unconstitutional and on consider the potential scope of its appli­ to leave room for experimentation with the other hand that unconstitutional cation, including all phases and aspects lesser degrees of racial mix pending the racial classifications may be used as a of our daily laws. It is not difficult to see outcome of experimentation with this means of guaranteeing the right of stu­ how this "affirmative duty" doctrine con­ generation of children. dents not to be classified by race for the flicts with constitutional limitations on Mr. President, the positivist theory of pW'pose of school assignments. the powers of government. The notion law is utterly repugnant to the U.S. Con­ As a consequence of this muddled judi­ that the U.S. Constitution imposes an stitution. The idea that elected repre­ cial reasoning the U.S. Supreme Court affirmative duty on public officials, in­ sentatives of the people of our Nation has acknowledged that freedom of choice cluding a duty to use constitutionally are helpless to prevent the U.S. Suprenle 1l1ay 15, 1971;, CONGRESSIONAL RECORD-SENATE 14911 Court from· writing positivist doctrines solidly against forced busing to imple­ York (Mr. JAVITS). We should vote into our Constitution is unthinkable. I ment a nationwide social experiment. against that. Next comes the vote on am as much distressed by the attitude A vote against the amendment will put my amendment, and I hope the Senate of some that Congress can do nothing to YOU on record as favoring "racial classi­ will approve that. Then comes, of course, combat judicial tyranny as I am by the fications" and in favor of school assign­ the vote on the Ervin amendment which shocking experimentation with our chil­ ments and busing of students on the sole I support as strongly as I do my own. dren which the U.S. Supreme Court has basis of their race. I should like this amendment to have authorized. Mr. President, I want to call attention been a little stronger but I know that In conclusion, let me repeat-the con­ to the fact that the two speakers just be­ we will not get any busing legislation stitutional issue addressed by the fore I was allotted time are from areas through this Congress unless we use the Brown I decision was the question of the from without the South. This same prob­ language in the House bill. So I would power in States to classify schoolchil­ lem, Mr. President, is· going to come to hope that the Senate would face up to dren by race for the purpose of providing other areas from without the South, if its responsibilities remembering that it public school education. This decision some provision such as the Gurney is representative of the people of the was that such classifications were pro­ amendment is not adopted by Congress. United States and the people of the hibited by the Constitution. The duty I do hope, in the order that the pro­ United States want busing stopped. imposed on U.S. district courts was to posals will come up, that the Bayh They have said so again and again and see that States stopped classifying stu­ amendment, which is meaningless and again. It has nothing whatsoever to do dents by race in providing public school offers no relief from forced busing as the with racial segregation at all. The safe­ education. For more than a decade, free­ Senator from Alabama sees it, will be de­ guards are in the amendment. The dom of choice plans were recognized as feated; then the motion of the Senator Brown case and others are preserved. constitutional, good faith compliance from New York (Mr. JAVITS) to lay on the I hope that the Senate will support with that decision. table the Gurney amendment should be myamendment. Aberrations in current Supreme Court voted down; the Gurney amendment Mr. FANNIN. ]\11'. President, I have decisions result from the exercise of the should be adopted; and then the Ervin listened very carefully to the arguments discretionary powers of courts to formu­ amendment, which is not inconsistent for and against the amendment of the late decrees in cases properly before with the Gurney amendment, should be distinguished Senator from Florida. I them. The discretionary equity power of adopted also. am quite aware of the fact that what we judges is indeed broad but there are tra­ I hope the Senate will follow that do here in respect to busing will have ditionallimits on that power. Equity can­ course. profound consequences for the consti­ not compel an action which the Consti­ By unanimous consent Senator THUR­ tutional and legal issues which affect tution prohibits. MOND was added as a cosponsor of the the whole policy of desegregation. Hav­ Mr. President, unless and until the Ervin amendment No. 1239; also, Sena­ ing listened, I am convinced that the present Supreme Court specifically over­ ators THURMOND and BARTLETT were amendment offered by the Senator from rules the Brown I decision which pro­ lldded as cosponsors to Gurney amend­ Florida will redress a serious grievance hibits racial classification in the adminis­ ment No. 1144. and focus attention once again on qual­ tration of public schools, it is not within Mr. GURNEY. Mr. President, to wrap ity education for all Americans. the discretionary equity power of judges up the debate here in the next 2 minutes We have been told by the opponents to make such classifications. Limitations available to me, we have been arguing, of the Gurney amendment that the on the power of States and Congress of course, this busing business since 9 amendment would upset the progress we cannot be set aside in the discretion of o'clock this morning. All the arguments are making in regard to school deseg­ judges. The point is, the Supreme Court pro and con have been made. The most regation-progress which has been has not overruled Brown I. Instead, in its and the least I can say about it is that characterized as calm, reasonable, and preoccupation with discretionary reme­ we have tried busing for years in many rational. Yet, if over 250 letters in the dies the Court has authorized racial States in this country. past 2 weeks from the residents of classifications as a part of an equitable In my own State of Florida it has not Tucson in my State is any indication, remedy. Yet, equity follows the law and worked. It has been a miserable failure. the situation is far from being calm, rea­ the law remains that "racial classifica­ It has done nothing to improve educa­ sonable, and certainly not rational. Tuc­ tions" are unconstitutional. Since the tion; as a matter of fact it has hurt edu­ son District No. 1 has been negotiating aberrations concern remedies for denial cation. It has done nothing to improve with the Department of Health, Educa­ of constitutionally protected rights, Con­ race relations; as a matter of fact it has tion, and Welfare over the racial com­ gress has the power and the duty to take hurt race relations. It has cost all kinds position of its schools, and hanging like corrective actions. of money for school buses and the cost of a pall over these negotiations has been The Constitution vests in Congress the maintaining them which could have been the possibility of busing. These many specific power to delineate rights to be put into the school system, either to pay parents have expressed deep and sincere protected by the 14th amendment and teachers' salaries, to buy books or for concern for the welfare of their children also the power to prescribe both remedies capital improvements. and their educational progress. What and penalties for denial of those pro­ Poll after poll has been taken, and peo­ these letter really represent is a concern tected rights. Congress exercised that ple have rejected this system of busing that educational programs, in Tucson, power in enacting the Civil Rights Act of overwhelmingly-in the last poll by a will be determined, not by the commu­ 1974. It has the power to take such ac­ margin of 95 percent. nity, not by the elected members of the tion as it may deem proper at this time Let me also summarize what we have school board. but by Federal dictates. to further protect students from uncon­ before us. These many letters have asked my sup­ stitutional racial classifications by way The first vote will be on a substitute port of legislative measures which will of amending the Civil Rights Act of for my amendment, the Bayh substitute. prevent even the possibility of busing. 1964. What it does is wipe out my amendment The Gurney amendment would elim­ Mr. President, the Student Freedom of completely, and also has some mealy­ inate busing as a possibility in Tucson. Choice Act now before us is completely mouthed language in it which will not Without the threat of busing calm and free of the taint of racial classifications. do anything to stop busing. reasonableness will emerge and a com­ It protects all citizens from racial dis­ If we are going to do anything about munity solution will, I am sure, develop crimination which is inherent in "racial busing in this session of Congress, we to meet the Tucson challenges. For this classifications," That was the objective must vote for the Gurney amendment, reason, and my own conviction that bus­ of the Brown I decision-that is the ob­ which is the identical language which ing remedies are unwarranted in the jective of this amendment. I urge that appears in the House education bill. If pursuit of achieving school desegrega­ every Senator search his heart and con­ we vote for this, when the bills gO to tion, I support the Gurney amendment. science before voting. I ask that he con­ conference, we will have done something Mr. TAFT. Mr. President, I oppose the sider whether or not he can conscien­ about busing. If we do not do it, we are transportation of students abnormal tiously vote to repudiate the Brown I de­ not going to do anything about busing. distances to create immediate integra­ cision and for classification of students The next vote, of course, after the tion and racial balance. Consistent with by race for the purpose of school assign­ Bayh vote, which I hope the Senate this position, however, I feel that the ments and subsequent busing. votes down, will be the tabling motion courts have an obligation constitution­ A vote for the amendment wlll put you to be offered by the S;nator from New ally to assure that transportation pat- 14912 CONGRESSIONAL RECORD.w.. SENATE May' 15,)1974 terns are not used to perpetuate or pro­ plicable to such transportation proce­ asserting the constitutional rights of mote de facto or de jure segregation. dures so as to not pose a health or edu­ their children. It would threaten the very In cases where segregation has oc­ cational risk to students, and the Con­ existence of private organizations that curred, greater emphasis must be placed gress has set such a limitation. seek to protect the rights of minOlity on the repeal of restrictive zoning laws, The Elementary and Secondary Ed­ citizens. No standards are included what­ the creation of equal opportunity hous­ ucation Act adopted by the House, H.R. soever to apply such a restriction to cases ing programs, and the construction of 69, would in essence resolve this ques­ brought for harassment or abuse of serv­ educational institutions geographically tion by stressing the neighborhood school ice of process. The intent of such an situated to insure equal educational op­ concept and prohibit abnormal trans­ amendment can be interpreted no other portunities. Where unequal and discrimi­ portation for desegregation to any but way than to preclude access of citizens to natory conditions have developed or de­ the next closest school to a student's remedies available in the judicial branch. velop in the future as a result of faiIw'e home, and permit this approach only in If such a provision is found necessary by of a locality to correct and improve such the most limited of situations. Further, the Senate, I would suggest considera­ socioeconomic living patterns and stand­ the House bill would establish among tion of the provision recently included by dards, judicial intervention may in lim­ other procedures a. reopener provision, the conference committee in the legal ited cases also be necessary and desir­ section 218 of H.R. 69, permitting a re­ services corporation bill. able. view of existing court orders back to the Sections 814 and 815 of the amend­ Since the decision of the Supreme Brown decision with application of the ment stating the restrictions that busing Court in Brown v. Board of Educa­ neighborhood school concept contained could only be used as a last resort, and tion, 347 U.S. 483 (954) holding racially in the legislation. Amendment No. 1144 then only to the next closest school, pose segregated educational facilities were in­ offered by Senator GURNEY and amend­ very difficult constitutional problems. herently unequal and the subsequent re­ ment No. 1097 introduced by Senator The 14th amendment requires that equal view of Brown v. Board of Educa­ DOLE would substitute such an approach educational opportunities be available to tion again in 195;> at 349 U.S. 249 stating for title VIII of S. 1539. all individuals. In many cases, partic­ that district courts should implement de­ I am sympathetic with the problem ad­ Ularly de facto cases, transportation is segregation rulings "with all deliberate dressed by the authors of these amend­ the only effective means to achieve this speed," extensive national debate has ments to limit the use of orders for ab­ goal. By limiting, if not prohibiting ensued as to the positive and negative normal transportation. Cases such as transportation, the Gurney amend­ aspects of using transportation pattelns BradleY v. The School Board olthe City ment will prevent Federal courts and to alleviate discrimination. Unfortunate­ of Richmond, Virginia et al., 338 F. SuPp. school authorities from implementing ly, quite often the national debate has 67

Brown, many have disdained the very notion ticket, tried to sit up front, was arrested and It is unclear whether Emmett Till ever of "integration" with white society. Yet, even found guilty by a local jUdge, John Fergu­ realized his "crime." He allegedly had whis­ in that expression of disdain, we see again son. Thus began the case of Plessy v. Fergu­ tled at a white woman on the streets of the impact of Brown. To arrive at that con­ son. Money. She went home and told her husband clusion suggests a sense of choice, of options. All but one justice of the Supreme Court she had been "assaulted" by a black youth. No such. choice seemed real to most blacks upheld JUdge Ferguson. The majority con­ The husband and his half-brother were later just 20 years ago. A whole generation has cluded that the rear of the streetcar was as to admit that they took the child from his been born,.· grown up and gone to college good as the front, that the courts could not uncle's home at 2 o'clock on tile morning without ever having seen a restroom door force people to sit beside each other. and of Aug. 28 and carried him to the banks marked "white" and "colored." furthermore, said Justice Henry Blllings of the Tallahatche. There they brutalized A black sophomore today might only learn Brown for the majority: and l11ultllated him, shot him through the through a ·':llack history course of a time in "If the civll and political rights of both head. tied a heavy weight to his body with the 1940s when a black youth won admission races be equal, one cannot be inferior to the barbed wire and dumped it into the Tallahat­ through court order to the University of other ciVilly or polltically. If one race be chie. Oklahoma Law School, only to discover that inferior to the other socially. the Constitu­ Late that September, with the eyes of the his classrooms had a rope across two seats tion of the United States cannot put them world-and especially those of black Amer­ marked, "reserved for colored." upon the same plane." ica-fixed on the shabby little courthouse at It was not until the Supreme Court took The lone dissenter, Justice John Marshall Sumner, Miss., the two men were tried for up the cases we now know as Brown that all Harlan, argued to no avall with his brethren murder. The all-white jury dellberated for those changes and many more began to occur. that "Our Const.ltution is color blInd, and a llttle less than two hours before acquitting Brown simply enunciated forcefully a prin­ neither knows nor tolerates classes among them. ciple that blacks had known must come one cItizens ... The humblest is the peer of the The reaction of many Northern whites was day. It was not In itself a great surprise. most powerfUl." Then, in language that outrage. The reaction of blacks, North and Blacks had llned the curbs outside the Su­ would not be equaled in the Supreme Court South, was a grim rea11zation that much preme Court in the winter of 1953 In the for a half century, he declared: remained to be done to make the doctrine hope. of getting a seat to hear an NAACP "We boast of the freedom enjoyed by our of Brown apply to every aspect of life in the lawyer named Thurgood Marshall argue the people above all other peoples. But it Is United States. law and the principle they knew the court difficult to reconcile that boast with a state Rosa Parks had never heard of Homer would adopt. of the law which, practically, puts the brand Plessy. That early evening of Dec. 1, 1955, The social climate in which Brown oc­ of serVitude and degradation upon a large she boarded the Cleveland Avenue bus in curred was one of increasing determination class of our fellow citizen, our equals before Montgomery, Ala., with social protest the to break down the barriers that had existed tile law. The thin disguise of 'equal' accom­ furthest thought from her mind. She took for the 50 years since the Supreme Court had modations for passengers in the railroad a seat and the bus made its way to Court ruled In the case of Plessy v. Ferguson. To coaches will not mislead anyone, or atone for Souare. It was then that the driver ordered understand the Importance of what Brown tile wrong this day done." R~sa Parks to move to the rear of the bus did, and thus to understand the events that As a New England orator had occasion to to make room up front for a white passenger. followed Brown, It Is necessary to go back a pnt it at another time, "rivers of blood and Rosa Parks, 43, said, "No." She was a weary moment In history to the Plessy case. years of darkness" separated the days of seamstress who simplY didn't have the energy When the Clvll War ended, the era known Plessy from the time of Brown. to move and saw no reason she should have as Black Reconstruction began in the South The reign of terror that swept across the to. She was arrested and the next phase of the under the aegiS of a Republlcan adminis­ black communities of the South was llke social revolution was under way. tration and a Republlcan Congress. Federal nothing that occurred in American history The Rev. Dr. Martin Luther King Jr. was troops were used to support the Reconstruc­ before or since. Lynchings reached as high new to Montgomery. The son of a pro.ll1inent tion governments of the states of the Old as the hundreds in some of the years between Atlanta pastor, young King had come to Confederacy. Blacks, most of them former the turn of the century and the end of the Montgomery's Dexter Avenue Baptist slaves, began a process of self-government 1920s. Blacks streamed out of the farmlands Church, not far from the state capitol. When that would put more than a dozen in Con­ of the Deep South, often fieeing for their Rosa Parks was arrested, the blacks of Mont­ gress and res1.11t in a handful holding gov­ llves With no more than the clothing on their gomery were ready for protest and the city's ernorships and other high offices throughout backs. They jammed into the cities in search black clergy asked King to lead the way. the South. of refuge, jobs, education and health care. A boycott was organized and not a black was That arrangement lasted from the end of They found the cities indifferent to their to ride the municipal buses of Montgomery the Civil War untll the presidential election pllght and they knew few if any of the for 381 days. The Supreme Court struck down of 1876. It was then that the dreams of blacks urban skills. the city ordinance that had mandated the were brutally dashed. Only the great migrations of the middle segregation of the seatlng of buses in Mont­ Republican Rutherford B. Hayes and Dem­ 19th century from the cities of Europe to gomery and across the South. It was a victory ocratic candidate Samuel B. Tllden ended the cities of America matched the mass move­ for Rosa Parks and the end of the boycott, tbe election campaign of 1876 with neither ment of black Americans from the rural but It was only the beginning of Martin a clear electoral vote winner, although Til­ South in the aftermath of Plessy. Luther King's journey into history. den had won a popular majority. The Demo­ Depression, New Deal and World War II The methods that King enunciated for the crats of the South struck a deal with Hayes. all were instrumental in bringing alive the Montgomery protest were borrowed from his If he would agree to remove the federal hopes of black Americans that the Constitu­ understanding of the teachings of two tower­ troops from the South, they would support tion might one day apply to them. By the ing figures, Gandhi and Thoreau. He called him over the candidate of their own party. end of the war, the black men who fought it "creative nonviolence," and ordained that BlackS were left at the mercy of planters and oppression and fascism in Europe were in no matter how much he was abused by his workers who considered them Inferior, fit no mood for oppression at home. It was the enemies, he would respond in a spirit of only for manual labor. children of this generation of black veterans love. Alan Barth, In hiS new. book, "Prophets who would become the plaintiffs in the cases with Honor," describes the legal situation In known collectively as Brown. There had never been a protest style like that in black America, but It caught on and whiCh blacks In the South found themselves By the time of Brown, the black communi­ in the next several years it swept across the over the next two decades: ties were simmering with discontent and determination. The contradictions of racism SQuthland. Blacks challenged every form of "North Caro11na and Virginia ... found It discrimination that they could figure a wise to pass laws that forbade all fraternal had become too poignant. The Cold War was organizations that permitted members of dif­ in high gear and this nation was denouncing way of testing with their bodies and with ferent races to address each other as oppression in Eastern Europe whlle black King's new phllosophY. 'brother.' Alabama saw fit to adopt a law chlldren and white children were being kept It had no ready application to the desegre­ prohibiting white female nurses from attend­ apart in school districts across the land. gation of the publlc schools, so it took the ing black male patients. A New Orleans or­ Moreover, the African and Asian nations were decision of President Eisenhower in 1957 to dinance segregated white and colored pros­ emerging from a century of European colon­ federalize the Arkansas National Guard be­ titutes in separate districts. A Birmingham ialism and were looking to the West with fore nine black children could get into the ordinance made It unlawful for a black per­ a questioning eye and scrutinizing the moral Central High School In Little Rock. That son and a white person to play together ... leadership of the most powerful of Western decision, however, added buoyancy and de­ at dominoes or checkers. Oklahoma banned post-war nations. termination to the new nonviolent protest any companionship between the races whlle Brown and Its Impllcations were on every struggle. Blacks believed for the first time boating or fishing. Thus did the dominant black person's mind In August of 1955 when that they might actUally break the back race demonstrate Its ·superiority·," a grisly event occurred that might well have of segregation. Homer Adolph Plessy was an octoroon. An rivaled Brown in its impact on the political When the black students of Greensboro, octoroon is a. person With one-eighth black awakening of black America. In the little N.C., sat in at a dime store lunch counter blood, the rest white. By the standards of hamlet of Money, Miss., hard by the Tallahat­ In 1960. they employed the tactics taught by Louisiana la.w of the last century-and in­ chie River, Emmett Louis Tlll was lynched Dr. King and allowed themselves to be deed until this day an octoroon is considered one night. The chlld, retarded and slightly abused without fighting back. When that black. The streetca.rs of Louisiana. In 1895 bullt lived with his mother in Chicago. She news was spread across the country by tele­ were separated so that blacks were forced to sent'him back "home" to Money for the vision, thousands of students, black and rideln the rea.r. Homer Plessy bought a summer vacation of his 14th year. White, began to challenge the segregated 14916 CONGRESSIONAL RECORD - SENATE May 15, 1974 .lunch counters and another barrier to equal­ of racism and demonstrated that attitUdes against the "l1beral" press for its advocacy of ity, symbolic as it was, fell before the on­ and behavior were far more diftlcult to change equal rights. Yet, Only seven-tenths Of one slaught of nonviolent protest. than most blacks had ever imagined, per cent of all the newsroom professionals \Vhat the Supreme Court had lacked the Rather than share their schools with the in the United States.today are not White. power to accomplish in the schools was be· blacks who had been denied access, many And so it goes, a little progress here, stub­ ing accomplished by King's shock tl"OOPS in whites tied the cities for the suburbs. leav­ born resistance there; a bright spot, a dark the restaurants and hotels, the public ing those cities in a state of decline. The spot, hope, despair. beaches and the bus stations. harder blacks tried to strive fCl'ward, the It is impossible now to predict What w11l H was 1961 before it became apparent stiffer the resistance seemed to become. The be reasonable to sayan the 25th or the 40th that the movement for black equality was major civil rights legislation of 1964 and the anniversary of Brown. Only thls is certain: splitting into two-strains, and that the dis· Voting Rights Act of 1965 showed some early Hardly anyone guessed how much America daill for integration-not taken seriously be­ promise, but the enduring legacy of racism would change, for good or 1ll, in the 20 years fore-would one day prove to be a powerful was not to be so easily overturned by court since that muggy May Monday when the force in black America. rUlings and laws. Supreme Court pronounced that separate but The Freedom Riders swept down on the Only a few days after passage of the equal was not good enough. South, with blacks and whites riding buses Voting Rights Act, the Los Angeles commu­ from town to town, getting off here and nity of Watts exploded with a new form of A COURT THAT DARED THE UNKNOWN urban racial violence. there to test the segregated waiting rooms (From the Washington Post, May 12, 1974) and rest rooms Witll their "white" and "col­ From the ashes of Watts, a new awareness ored" signs. At Anniston, Ala., one afternoon emerged in black America. Malcolm X; Who (By John P. Ms.-cKenzie) in the spring of 1961, a white mob attacked had been assassinated that February, became "Somewhere, sometime to every principle the bus, set It afire and slashed its tires, The larger in death than he had been in life. comes a moment of repose When it has been photograph of the mob's handiwork went His warning that blacks and whites could so often announced, so confidently relied around the world, In New York City, that never beconle one nation seemed to have upon, so long continued, that it passes the photograph showed up as a pamphlet with a sunk in. Nothing was changing for the black limits of JUdicial discretion and disturbance." caption asking: man in the job market, in education or in So said John W, Davis, lawyer for a South "Do you really want to integrate thL~ burn­ housing. So Watts set the stage for the Carolina school district and courtroom ing bus?" urban rebellion-an expression of anger spokesman for the status quo in Southern A diJferent versioa of social revolution was that swept across the cities, an uncontrolla­ race relations. He was telling the Supreme starting to capture the imagination of ble wild fire, for the next five years. At eaCh Court that whatever it might think the 14th Northern urban youth who had neither the turn, it became clearer that blacks Amendment meant in 1953 and 1954, the jus­ patience nor background for King's form were determined to choose a different tices should be guided by the pronounce­ of love for his enemies, course, a course of their own. Black nation­ ments of 1896 and subsequent years approv­ There was Robert F. WlJIiams, a North alism among the young became more popu­ ing "separate but equal" as a constitutional Carolina NAACP leader who led a group of lar than at any time since the movement doctrine. armed blacks to chase some Klansmen out of of Marcus Garvey in the 1920s. When the Supreme Court handed down its town. Within months, Williams was run out By 1967, the goal of integration that had famous and unanimous desegregation deci­ of the country, to Cuba and China, but the so strongly attracted so many blacks was sion of May 17, 1954, there were more causes notion of stiff resistance was to have another all but forgotten. "Black Power" was the won and lost than Davis' or that of his op­ leader in Minister Malcolm X of the Nation new slogan, replacing "We Shall Overcome." ponent, Thurgood Marshall. Seen across two of Islam, or Black Muslims. Instead of integrated schools, the inten­ decades, tIle decision appears to have been A former convict who had found the teach­ tion of those who brought the SUits in the breakthrough for an entirely new jUdi­ ings of Islam while in prison, Malcolm X Brown, communIty schools became the goal. cial approach, a major restructuring of Amer­ preached a hard line against integration on And it was not just schools, but the whole ican government. The Judicial branch has ·the street corners of Harlem and soon had a social structure. Many blacks no longer not been in "repose" since then, massive following among young Northerners, wanted what the white man had. They In the longer view, the rule of Brown v. slum dwellers and cOllegians alike, who ques_ wanted a world of their own. Board oj Education, coming on the heels of tioned King's posture of nonviolence in the And young angry voices arose declaring decisions opening up state-financed college face of attack. they were ready to fight for it, to die for and professional education to blacks, was The crucial test came in Birmingham in it. They were called Panthers and Libera­ an evolutionary, logical next step and noth­ the spring and summer of 1963. King led the tors, cultural nationalists and political na­ ing radical. The major new element was that civil rights movement into full battle against tionalists. They called on their brothers and the court had lost its fear of the unknown, the resistance of .Public Safety Director sisters to look toward Africa, to think of Fear of breaking the 1896 precedent of "BUll" Connor. themselves as part of the Third World, Plessy v. Ferguson W&6 partly rooted in re­ Connor turned fire hoses and police dogs merely trapped in the belly of the Ameri· spect for the past and partly in fear for the on King's unresisting marches one day in can whale. Even those older blacks who con­ future. What social upheavals would deseg­ the full view of television cameras. With the sidered themselves middle class could not regation cause, what violent reactions, what powerfUl impact of that scene on world resist the emotional tug of the new ideology administrative nightmares Would the jUdi­ opinion and with the s,lpport of such patri­ so far away from the language of Brown, ciary be calling down upon itself? Even as the country's attention was fo­ archal figures of the civil rights movement OTHER BATTLES as A. Philip Randolph and Roy Wilkins, cused on those dramatic changes, less King organized a march on Washington to dramatic changes were occurring elsewhere. Once engaged in the battles over racIal demonstrate the sentiment of "all decent Throughout the South and the North, blacks justice, the Warren Court looked upon other Americans" in favor of a civil rights law were trying to get their hands on some of the battlefields with less awe. The "political that would carry~out the sentiments express­ power that resided within the system. From thicket" appeared more manageable and the ed by the Supreme Conrt nine years before in a half dozen blacks in the Congress at the justice saw legislative apportionment not as Brown. time of Brown, the number inched up to 12, a "political question" but as a denial by Nearly a quarter of a million Americans then 16, enough to have a caucus of their own politicians of the political rights of Amer­ came to march. 'They heard one of the most and be taken seriously. In MISSissippi and icans. Looking under the rocks of the crimi­ eloquent speeches of its kind: "I have a Alamaba, Georgia and Tennessee, blacks in nal justice system, the court found Viola­ dream," said King, and the Mall went'WlId Increasing numbers were getting elected to tions of. the constitutional rights of indi­ with cheers. It was perhaps the high poInt state office. At the time of Brown. you could viduals and hastened to outlaw them. of King's career as a spiritual and moral count all tile black elected officials on your To the John Davises and others the court leader, and the high point, too, of the non­ fingers. Now there are nearly 3,000, many of had slipped its moorings and was so "ac­ violent movement. them in the Old Confederacy. tivist" that a JUdicial dictatorShip seemed Less than a month later, at the 16th Street It is not progress with a capital P, but imminent. But to a host of other Americans, Baptist Church In Birmingham, a bomb neither hal'e blacks been standing still. What the court was opening a new avenue of re­ went off during Sunday school and four Brown has done is to expose a series of con­ dress for disadadvantaged and forgotten little girls were killed. In an era in which tradictions in American society! citizens. brutality against blacks had been common­ Thurgood Marshall, the man who argued Richard M, Nixon. who as vice president place, and in which many black churches Brown, is now an associate justice of the Su­ ha:d hailed Brown as the work of "our great had been destroyed by bombs, that sickening preme Court. Harry Briggs, one of the fathers Republican Chief Justice," was arudous as Sunday stood out in many minds as a psy­ for whom he argued, was forced to leave President to call a halt to the activism and chological turning point against the non­ Clarendon Connty, S.C., for the Bronx, N.Y. restore what he called "strict construction" violent movement. More blacks than ever are earning over of the Constitution, But three of his four By the time the first decade of Brown had $15,000 a year, but more blacks than ever appointees ended up voting to uphold federal ended, there was deep disillusionment in are living at the poverty line. court jUdgments against state antiabortion black America. The noble language of the The black faces tiash across the televISIon laws. And Chief Justice Warren E.Burger court had not translated into tangible screens, giving the news or acting In a com­ led a charge into the religious arena, pro­ change. What had seemed so simple had mercial, but less than 3 per cent of television claiming that the only "entanglement" to be turned out to be profoundly complicated. news professionals are black. feared was government aid entangling the Brown had exposed the deep hypocrisy The antagonists of racial eqllallty ra1l state and religion, May 15, 1971" CONGRESSIONAL RECORD-SENATE 14917 WARNING SIGNALS more controversla1 1966 Miranda v Arizona had gone through one all-black elementary To. be sure, Burger's principal aim has decision. school and on to a second all-black school by been in the opposite direction, to disengage Equality, the most sought-after constitu­ the time of the decision. And though Topeka the judiciary from some of the old conflicts tional principle of the Warren Court from repealed its segregation law a year before and try to avoid new ones. He stated his Brown forward, was a hard Idea to contain. the Supreme Court order, the city didn't perspective clearly shortly before his eleva­ Paul A. Freund told his Harvard law students move very swiftly to rectify matters once the tionto the highest court. complaining about It was like a boy who said he knew how to decision was handed down: Nine black chil­ the Inexorable development of Fifth Amend­ spell "banana" but didn't know where to dren were placed in previously all-white ment law in case after case, he argued that stop. In racial matters it met with massive schools the first year, and a few more the It was "all too much of a good thing, this resistance but the Idea marched on so relent­ second year. criminal law trend." The higher courts, in lessly that miscegenation laws, long a sym­ In fact, pUbllc controversy over school seg­ their concern for the Individual, started bol of deep-seated racism, died a quiet and regation had just about died out over the down a road in which each step is a logical almost natural death In 1967 again with no past 20 years-until last September, when a extension of the step immediately preceding justice dissenting. new suit was filed charging that Topeka it, "but when you get to the end of that road The 9-to-0 voting pattern that held firm schools are still "systematically" segregated. and look back, often you find you have ar­ through Little Rock in 1958 and even the Topeka is thus facing the possibility of an­ rived at a place you hadn't intended to go intransigence of school officials in Prince Ed­ other painfUl integration fight 20 years later, at all." ward County, Va., In 1964, remained intact but this time with the battle lines drawn The court under Chief Justice Earl Warren through 1968 when the court, tired of a case­ qUite differently and with enough ironies to did indeed seem to start things without being by-case desegregation process that was not bewilder even Lewis Carroll's Red Queen. sure where they would end, confident that working, gave full force to the principle that In 1951. when Brown v Board of Education if one case led to another, It would stm be only effective remedies would be approved. was first filed In Kansas courts, for example, sitting and capable of handling the next Segregation was to be ellminated "root and one underlying issue was that legal segrega­ case justly. It approached the Brown case branch," in Justice Black's phrase, and the tion prohibited some black children from at­ that way over Davis' warnings of a future South must produce not white or black tending their neighborhood schools. But the with overtones of racial "quotas" and white schools but "just schools." new suit charges that Topeka schools are still :flight. Only after President Nixon had appointed segregated In part because children attend If Clarendon, S.C., School District No. 1 four justices was there a full-throated dissent neighborhood schools, that school segrega­ desegregated perfectly and uniformly, he on school desegregation and even then, in tion is an extension of the city's de facto told the court, "if It is done on a mathemati­ 1973, the vote to extend key principles of segregated housing patterns. cal basis, with 30 children as a maxi­ equal protection to Northern school systems Similarly, Charles Scott, the black attorney mum ... you would have 27 negro children was 8 to 1. Also by then, the nature of the who filed the original Brown case, signed his and 3 whites in one school room. Would broblem was changing and new civil rights name several years ago to another suit which that make the children any happier? Would claims, such as that of "reverse discrimina­ tried, In his words, to "establish a school they learn any more quickly? ... Would tion" through racial quotas, were becoming system in several cities which would give the terrible psychological disaster being more insistent. black boards of education In black neigh­ wrought, according to some of those wit­ A PARTIAL HALT borhoods control over all-black schools, and nesses, to the colored child be removed If Now a new majority has moved to cut comparable set-ups for whites." Integration 11e had three white children sitting some­ down the growth of new ideas of equallty. Is no longer a priority issue in black Topeka, where in the same school room? ... You The court has refused to extend constitu­ Scott says. "It's peCUliar what 20 years of say that Is racism. Well, it is not racism ..." tional protections against discrimination in disillusionment can do to you." Justice Felix Frankfurter raised similar housing beyond race Into the field of bias And Topeka's black citizens, whatever their warning signals,. questioning Whether the against the poor. It has declared itself help­ private feelings, have not publiClY supported racial isolation of the urban ghetto would less and disinclined to Intervene where states the latest suit, filed in U.S. District Court not frustrate effective remedies. But he, like parcel out school money unequally among last Sept. 10 on behalf of a 10-year-old black the other eight justices, came down hard on districts. Blacks and urban whites trying to girl by the Rev. Fred W. Phelps, a white Bap­ the threshold question-was there a viola­ recapture whites who have fled to suburban tist minister who has 13 children and a con­ tion of constitutional rlghts?-and answered Detroit schools will be lucky to survive the gregation totallng 63. that question first. Implementation plans current round in the high court. Linda Brown, who gave her name to the could be tackled in another round of argu­ But the effort to wind down the judiciary'S historic 1954 decision, is among the many ment. In 1955, the announced "ali deliberate "actiVism" does not appear likely to suc­ blacks who have been quiet about the new speed" enforcement formula amounted to ceed completely. One reason is that the suit. Now 31, she has been married and di­ another postponement for much of the Deep newly constituted court has maintained vorced. South. much of its commitment to racial equallty Her two children started their education Justice Hugo L. Black disclosed shortly and displayed a willingness to enforce that In the same black school that her father sued before his death that he favored instant commitment. Another reason is that legisla­ to get her out of. And she seems to be tak­ system-wide enforcement in every district tures, some of them energized by reappor­ Ing the latest legal battle with a calm fatal­ where segregation was under legal attack. tionment, are creating and safeguarding new Ism. She has not paid much attention to it, Retired Justice Tom C. Clark said recently rights and remedies which the courts must she says. But then she believes the real that he regretted the courts' collective lack enforce. problem is housing, not schools. of foresight in falllng to decree grade-a-year Furthermore, there are increasing signs of "I think if they don't find an answer to compliance starting with kindergarten. The publlc acceptance of a full partnership in that, we are still going to have segregation," justices must have explored these routes government for the judiciary. Last fall many she remarks. "Topeka today is more segre­ and mlmy.others before settling on post­ Americans were saying It was the high court's gated in housing than 20 years ago ... It ponement. But If they had taken on the "duty" to decide the question of SUbpoenas seems more crowded now, more concen­ whole problem at once, would they have for White House tape recordings. Suggestions trated than it was." made the initial constitutional .judgment of a role long undreamed of for the courts­ If Topeka is more segregated than it used about segregation? judicial review of a congressional impeach­ to be-and the dividing line between black HOW MUCH EQUALITY ment verdict-have been raised by a lawyer and white neighborhoods is as easy to spot for "strict constructionists" John Ehrlich­ as in the rigidly segregated housing market Similarly, the court began its reapportion­ man and H. R. Haldeman. The very fact that ment adventure by declaring that the courts of Chicago-then LindE Brown is one of the the Supreme Court has never flatly ruled on exceptions. were open to challenges by citizens under­ the question Is an invitation to more judicial represented in their legislatures. The precise Her son Charles, now In 5th grade, and her business and only the Supreme Court can daughter Kimberly. a 4th grader, both standards could come later. When they came say the review power doesn't eXist. and they amounted to "one man, one vote," started their kindergarten education in Mon­ critics complained that the courts should not roe. the school their mother was attending apply rigid mathematical formula but In­ [From the Washington Post, May 12, 1974] in 1951. It was all black when she went there, stead should permit deviations based on how TOPEKA TaEADMILL: LINDA BROWN'S CITY and she says it was 98 percent black when judges measured political factors such as ge­ FACES ANEW BATTLE they started. ography, popUlation distribution and even Then she moved, and the children spent (By Austin Scott) three years In a public elementary school competing "interest groups." The irony was TOPEKA, KANS.-In the wonderland of To­ that such a measurement would carry judges that was only 20 percent black. She moved peka, home of both Brown and the board of even deeper into the political thicket. again, and the children spent less than a education members who ran all the way up year In a surburban publlc school that was Criminal law, as Burger observed, develop­ to the Supreme Court In 1954, there is indeed 98 percent white. She moved a third time ed In similar fashion. In 1964 the court threw a sense of having hUffed and pUffed and and for the past fi\'e months the childre"r: out a contessionobtalned from Danny Esco­ ended up close to where you started out 20 have been attending Hudson, which is about bedo when police cut him off from his lawyer. years before. 35 percent black and only a block from the This opened up yet another question: "What The High Court's landmark desegregation m1ctdle-income integrated apartment com­ about equal jUstice for the arrested suspect order certainly didn't move the young plain­ plex where they live. to poor to hire his own counsel, a question tiff, Linda Brown, very far. A 1st grader When As a child, Linda Brown had to travel 30 settled in favor of the defendant In the even her father ftrst 1l.lOO the suit in 1951, Linda blocks to school, passing several all-whIte 14918 CONGRESSIONAL RECORD-SENATE May 15, 1974, schools along the way. "Sometimes the you went to school with that white judge, The desegregation pian they voted down­ weather was so cold it was unbearable for a you get a Htlle bit of edge." involving seven school closings and 22 small child," she recalls. "I'd start crying in That kind of talk tends to send advocates boundary changes, would cause undue hard­ the middle of the walk, turn around, and of black pride and black excellence into fits ship and Jeopardize quality education, the come back. of rage. board said. "AID I happier with Chuckie in the school The suit also charges Topeka with provid­ The 20 years since the Supreme Court's lle's in now? Yes, I am. because it·s more ing better facilities at mostly white schools. integration decision have produced a Topeka like the world that he's going to grow up in, That, it contends, generates "... in plain­ school system where, according to figures relating with people of all races. This helps tiff and her class feelings of inferiority as from the system itself, the two oldest black 11im adjust to the world around him." to their status in the community, thus affect­ elementary schools contain more than 95 The notion of lin integrated "real world" ing their motivation to learn and generally per cent minority students while the three threads constantly through Ms. Brown's talk affecting their hearts and minds in a way newest junior high schools have only 2 to about her own past and her children's future. t1l1likely ever to be undone .. :' 3 per cent minority students. She works from 4 p,m. to midnight as a key Although Phelps borrowed the "hearts and A stUdent at Topeka'S Washburn Law punch operator at the Goodyear plant. Her minds" language from a Supreme Court deci­ School, using the system's figures, recently sister, Ten'y Ickard, whom she llves With, sion, blacks who disagree with it argue that calculated that in 1972-'73, 14.1 per cent of takes care of Charles, Kinlberly. and her own social changes have m,.'tde such thinking the city's 12,614 elementary students were Michelle, in the evenings. obsolete. Federal Judge Constance Baker black, but 90 per cent of the black elemen­ "I think the education my children are Motley, once one of the NAACP attorneys tary students attended 44 per cent of the getting today makes for a better adjusted active in the Brown case, for example, re­ schools. Two schools were listed as all White, person," she remarks, "1 feel today it would marked in a recent speech at Notre Dame five were more than half black, and eight have really benefited me if I had gone University that "it appears that it may be were more than 35 per cent black. through an integrated neighborhood school meaningless to talk about feelings of in­ usa MANY BROKEN HOMES" throughout my education, starting with ele­ feriority to a black youth in the central city There's a circular component to the whole mentary level, because to me in an inte­ where blacks no longer consider themselves problem that worries Linda Brown. To some grated school it seems your rate of progress inferior to whites and no longer believe that extent, she says, she thinks neighborhood is faster. I notice this in my chlldren. The any institution Which is all white is neces­ times and the integrated setting both have segregation results from school segregation. sarlly good and ought to be integrated." "You get this almost ghetto situation and a lot to do with it. You have more of a drive Hack in 1950 and 1951, those laying the the black child does not have a chance to to meet competition. legal groundwork for Brown were trying to mingle With the people he will be with when '.. GRUMBLING ABOUT PHELPS avoid a decision that might have ordered he grows up. This Is not the world that kids I;;ven though Ms. Brown has paid little at­ separate schools to be made equal. are going to enter .,.I think yOU'll find tention to Phelps" suit, her notion of why "We made the legal presumption that the the older black adult is still afraid to venture an integrated, education is a good thing does white schools and the black schools were in out. This will change with younger genera­ not seem to conflict with his. fact equal, that the teachers, the books, tions. The younger kids here, they go apply Melitioning Phelps' name in some areas of the classrooms equal," recalls attorney SCott. for these job places that the older ones black Topeka,·brings grumbling sounds, how­ "We wanted the cllSe to rest purely on the Wouldn't. ever, soundS:that indicate some very vocal argument that despite all the apparently But for all the importance she attaches to blacks don:tllke what he's doing. They use equal physical facilities, segregated schools integration, she has some fears: "Before ou!' words like "opportunist" and speculate about inherently provided black children and may­ black children are ready to go into a more in­ Why a white like Phelps "is taking on the be even white children with an incomplete tegrated setting, our black parents are going responsibillty for a black problem." education." to have to get these children in hand as far At 43, Phelps. is an intense, freeswinging The Coordinating Council of the Black lIS discipHne is concerned. My younger sis­ legal activist who became a lawyer to help Community, a black umbrella group formed ter teaches at Monroe, 6th grade. She says support his growing family, and is well aware after the violence of 1968, has taken "no po­ their discipline problem Is getting out of that many Topekans-black and white--are sition" on the Phelps SUit, according to hand. I have seen that over where my kids put off by his style. CCBC director, Eva Lou Martin. It has joined go. The teacher tells the kids something to Those famlliar with the months of careful the NAACP in telUng the board of education do afid he just talks rIght back, •• we have preparation that went into the original that all parts of the community shOUld be so many broken homes now, so many moth­ Brown case, the long and difficult task of involved in seeking a solution to the schools ers working. It's happeing in white homes mobilizing black community support first, of problem. too." persuading 20 parents to let their chlldren THE HEW INQUIRY Would it make any difference in Topeka it be named as plaintiffS, say Phelps is an un­ Not until after Phelps filed his suit did the she were to get involved in the latest SUit, likely attorney for the second time around. Department of Health, Education and Wel­ speak out strongly, perhaps? "I don't think Phelps, for example, is proud of winning a fare investigate the state of desegregation in so. There is going to have to be a solution large damage award for a black woman whose Topeka schools. It then notified the city in to people living where they are living before television set was wrongly repossessed. January that a "SUbstantial" number of the problem can be alleviated." Blacks have criticized the argument he says schools were not as desegregated as they What about busing? "I am not for it at all. he used-that she had developed an unnat­ should be; that stUdent transfers were in­ To me this is a reversion to what we were ur:tl psychological dependence on the set creasing segregation; that "most minority getting before Brown. It might just be me, and that its withdrawal caused her serious junior high school students ... attend but I had to walk all this distance to catch emotional and physical problems. schools Which are generally inferior in facUl­ a school bus and be bused across town. If Born and raised in Mississippi, Phelps, de­ ties ... ;" and that elementary schools with this is what It comes to here in Topeka, I scribes himself as an independent, Calvin­ a high minority enrollment tend to have in­ wlll conform to it, but ... if there is an­ istic Baptist, believing in predestination, a adequate kindergartens and smaller Hbraries. other solution that would give us our neIgh­ literal interpretation of the Bible, eternal " ... You are, of course, aware that as a borhood schools and still give us an inte­ retribution. and "thunderous, hellfire formerly officially segregated school district, grated school system, I would rather see preaching ... There isn't any doubt in our your district has been under obligation to that." minds about Judgment Day ... The Lord fully desegregate its schools," HEW said. "In God is my contact." order to achieve full compliance with the [From the New York Law Journal, He says he had never considered a deseg­ law, it will be necessary for you to develop May l,1974J regation suit until last summer when he was and implement a plan which ellminates the WHERE HAS "BROWN" LEn Us IN 20 YEARS? violations set forth above." sitting in a Harvard Law School seminar. He (BY Constance Baker Motley) hurried home to file it. Phelps' suit and the resulting HEW or­ "How are we gonna get these black kids ders generated a flUrry of back and forth ac­ In this article, JUdge Constance Baker integrated with these white children so they tivity by Topeka's all-white school board. Motley of the U.S. District Court for the can gain the advantages-that's the prob­ The board first voted, 5 to 2, to draw up a SOuthern District of New York sets forth her lem now," he says. desegregation plan and implement it by the personal recollections of the Supreme Court's 1974-'75 school year "if possible." landmark ruling on sch()ol desegregation, H A LITTLE BIT OF EDGE" According to a local newspaper account Brown v. Board of Education, twenty years One of the major charges in Phelps' suit, of that meeting, "Dr. Gordon Sumners, one after it was handed down, and comments on in fact, is that the Parkdale Grade School, of the two board members, voting against itslmpact and implementation, JUdge Mot­ which is 90 per cent black and attended by the resolution, said an act comparable to the ley, as a counsel on the staff of the N.AA.C.P, plaintiff Evelyn Rene Johnson, denies "the Boston Tea Party might be an appropriate Legal Education. and Defense Fund, partici­ intangible qualities of advantageous social response to federal intervention." pated in the major school desegregation cases intercourse and opportunity to study with, But just last week the board reversed its in the 1950's and .1960's. Between 1961 and engage in discussions with, and exchange stand and voted to tell HEW it is impossible 1964 she argued ten civUrights cases before ideas with white children who are provlden­ to meet federal integration gUidelines of no the U.S. Supreme Court and won nine or tlaIly favored economically and socially .• ." more than 40 per cent blacks in any school. them. This article,constitutes the text of her "They don't have the ability to be making Instead, board members said, they wUl con­ recent lecture at the center for Civil Rights friends with the future white JUdges:' says duct a study to see it major upgrading is at the University of Notre Dame, Phelps. "You can talk all you want to, it needed at the black-dominated schools. When the Supreme.Court announced ita 111ay 15, 1974 CONGRESSIONAL RECORD - SENATE 14919 decision In 1954 barring state·enforced racial cree be entered directing that petitioners be courts of first instance with directions to segregation in educl\tion .that was only one admitted forthwith to pUblic schools as the frame decrees In these cases, and If so. what part of, its historic decision. The more dl.lll­ court had ruled In the Texas and Oklahoma general directions shOUld the decrees of this cult second part was yet to come. In that cases. The court's rationale there was that Court Include and what procedures should :May 17, 1954. decision the Court directed constitutional rights are personal and pres­ the courts of first Instance follow in arriv­ cotmsel for both sides to submit new briefs ent aud therefOl'e could not be postponed ing at the specific terms of more detaUed in answer to Questions 4 and 5. These ques­ in the interest of permitting the state time decrees?" tions dealt with the type of relief to which to make necessary adjustments. SEPT. 1 LIMIT URGED petitioners would be entitled. Manifestly, those cases were dIstingUish­ In answer to Question No.5. we argued The five cases were also set down for fur­ able In an equity context. At the graduate that if the Court should allow an "cffective ther arguments as to these questions.- As aud professional school level southern states gradual adjustment" from segregated school far as counsel for petitioners were concerned had not set up a dual network of graduate systems to systems not based on color dis­ that directive fell on a stunned, physically and professional facilities for blacks. The tinctions, It should not formulate detailed and mentally exhausted crew of so-called civU number of blacks seeking advanced degrees decrees but should remand the cases to the rights lawyers. was minimal. The out-of-state scholarship courts of first Instance with specific direc­ HISTORY OF uBROWNu program. held unconstitutional the Gaines tions to complete desegregation by a day case In 1938. had been devised to circumvent 7 The five cases, which have been collectivelY certaln. the state's obligation in this respect.' Cita­ We also suggested an outside limit of referred to herein as Brown, were first argued tion of these graduate and professional before the Supreme Court in December, 1952. Sept. 1. 1965, In answer to Question 5.­ school cases, therefore, did not help the court This would have set an outside limit of more On June 8. 1953. after initial arguments. the in Its perplexing task. Court had set the cases down for reargu­ than two years after the May 17, 1964 deci­ ment. In' an order issued at that time the COURT'S REACTION sion. We further urged that a decision grant­ Court propounded to counsel five multipart Moreo,'er, the court must have found our Ing the school authorities before the Court questions. Three of the questions dealt with "forthwith" argument ambiguous In view of time "should be so framed that no other substantive constitutional issues and two the .caption which preceded It. There, we state maintaining such a system Is lulled dealt with the type of relief to be afforded said: "After careful consideration of all of Into a period o! Inaction and induced to should the petitioners prevail? We all had the factors involved In transition from segre­ merely await suit on the r.ssumption that It the feeling then that we were about to em­ gated school systems to unsegregated school will then be granted the same period of time bark upon momentous times. systems, appellants know of no reasons or after such suit is Instituted," • FollOWing the June 8. 1953, order. NAACP considerations which would warrant post­ Here we appeared to be reaching, In effect, Legal Defense Fund (LDF) lawyers had been ponement of the enforcement of appellants' for relief In suits not yet instituted. but the on a seven-day work-week schedule. Months rights by this court In the exercise of its constitutional limitations of due process of research. conferences. and debate involv­ equity powers." fi were readlly apparent. What we really wanted ing historians. sociologists, legal scholars and In other words, on the one hand, we talked was some statement from the Court to the lawyers culminated in the memorable 235­ of the "transition" from "segregated school effect that H hoped the rest of the South page brief and appendix filed in septem­ systems" to "unsegregated school systems" would accept its decision a.q the law of thc ber. 1953. We, therefore, found the 1954 order in the caption and, on the other hand, we land and avoid a mUltiplicity of similar suits. for further briefs and arguments after two argued thereunder that the rellef sought BRIEF OF CLASS-ACTION prior briefs and arguments incredible. was the immediate admission of appellants. Much to our surprise. on the second re­ NO JOY IN SELMA The immediate admission of appellants argument in the fall of 1954 the court re­ alone would not have resulted in the sug­ I left the victory party in our New York quested us to file still another brief solely gested transition. The dual school system on the class-action aspect of these cases, City offices on the evening of May 17. 1954, would have remained Intact. to fill a speaking engagement a day or so I.e.. the extent of the class and the effect of Question No.4 which the court wanted a decree on members of the class not before later in Selma, Ala. Walter White. then ex­ answered again read as follows: ecutive secretary of the NAACP, had become the Court. We, of course, argued that mem­ "Assuming It is decided that segregation bers of the class not before the Court were Ul and was unable to keep the scheduled in public schools violates the Fourteenth speaking engagement in Selma. He asked me entitled to the same relief as the named Amendment-- petitioners. to go in his place. Upon arrival in selma, I "(a) Would a decree necessarily follow pro­ was shocked to find no rejoicing there, not This additional brief was required because viding that, within the limits set by normal the respondent school autl:orltles had argunj even discussion. The center of Negro intel­ geographic school distrlctlng, Negro chil­ lectual life in that black-belt county was a that In so-called spurious federal class ac­ dren should forthwith be admitted to schools tions ot the type brought In the Brown cases small Negro college struggling for existence of their choice? or In the midst of what I had come to know as relief could be afforded only to those lJetl­ rural southern poverty. I have no present "(b) May this court, in the exercise of Its tloners actually before the Court. In so­ recollection of what I said to the overfiow eqtllty powers. permit etrective gradual ad­ called true class actions In the federal courts crowd In that little church that Sunday justment to be brought about from exist­ all members of the class were bound by the afternoon. I do have the feeling. however, ing segregated systems to a system not eased judgment and therefore entitled to relief that Whatever I said must have fallen on on color distinctions?" whether present or not. This was a trans­ deaf ears. The march from Selma to Mont­ REPLY TO QUESTION NO. 4 parent attempt to limit the Impact of Brown gomery to enforce the long recognized right This time, In answer to Question No.4. to the few remaining named petitioners. The of blacks to vote came a decade later. we said In essence, that the school authori­ cases had been pending so long that some When I returned to New York. work had ties must still admit petitioners forthwith of the petitioners had already finished school. already begun on the new mandate. Up to but could be given until September. 1955, We defined the class In that partlcular brief this historical juncture we never really had to complete "prerequisite administrative as all those attending and qual:.fled to attend to confront the harsh realities of a post­ and mechanical procedures" necessary to ad­ schools In the partiCUlar school system be­ Brown era. We could no longer be ambivalent mit "the complaining children and others fore the Court'!o The Court agreed. about the crucial question whether we slmllarly situated,"· We did not emphasize On the surface this class relief argument wanted the court to simply order the im­ normal geographic dlstrictlng because even again appeared Inconsistent with our origi­ mediate admission of the named petitioners then we were haunted by the specter of nal forthwith stance as to the named peti­ or whether we wanted broader class relief. housing segregation In the cities. We were tIoners, but this w;.s not necessarily so. The We had. of course. discussed these questions essentially Idealists. We had visions most of Court could have ordered thE named peti­ at great length, but the post-Brown era was the time of a few black children scattered tioners admitted forthWith and ordered un­ nowhere. among many white pupils In each class­ named members of the class admitted within EARLY SUCCESSES room. the way those of us who were reared the outer time limit of September, 1956, We had preViously succeeded In gaining In New England remembered It. which we had suggested. This would be Cir­ the admission in 1950 of a few black students Question No.5, which the court wanted us cuit Judge Potter Stewart's solution in 1956 to the UniverSity of Texas and Oklahoma to answer anew, read: In a similar case in Hlllsboro. Ohio." How­ on the graduate and professional school level "On the assumption on which questions e,'er, I cannot recall Whether this was argued after four years of effort.' This took place 4(a) and (b) are based, aud assuming fur­ in the Brown case. without disruption or violence, despite pre­ ther that this Court will exercise Its equIty 1953 TOPEKA DECISION dictions to the contrary. As a result, we and powers to the end described In Question 4(b). Although we vIgorously denounced the the nation had had no real experience With "(a) Should this Court formUlate de­ polley of gradualism in the briefs we sub­ large scale desegregation efforts in the field taUed decrees in these cases? mitted, we privately feared that that path of education. "(b) If so, What specific issues should the was inevitable as tar as implementation of In the 23S-page brief on the first reargu­ decrees reach? Brown was concerned. In September. 1953, ment of Brown In December, 1953. in answer "(c) Should this court appoint a special before the Court's 1954 decision, the Topeka. to Questions 4 tIU.d 5, we had argued that the master to hear evidence with a view to rec­ Kan., school board had adopted a resolution • Fourteenth Amendment requires that a de- ommending specific terms for such decrees? to the effect that its schools would be de­ "(d) Should this court remand to the segregated as rapidly as practicable. At the Footnotes at end of article. CXX--94o-Part 11 14920 CONGRESSIONAL RECORD - SENATE May 15, 1974 time of the second reargument, only 15 per been forewarned of massive resistance in the resistance colllded head on with our efforts cent of the 700 Negro elementary school Deep South. but we did not know when or to gain the admission of a single Negro to children out of a total elementary school where it would strike or what form it would the University of Mississippi. Although we population of 8,500 had been admitted to take. had been preparing the suit for months, when white schools in Topeka. There segregation We did not realize, for example, that by I walked into friendly Judge Mize's court­ had not even been compelled by the state; pushing for desegregation on the college level room in the federal District Court in Jack­ it was simply permitted in the elementary in Alabama and by supporting the Mont­ son a few days after the freedom riders had schools and, in addition, only in city school gomery bus boycott in 1956 we would bring arrived, he remarked to me that we had districts. on retaliatory action from state authorities picked the wrong time to file any such suit. Topeka was at the opposite end of the which would have the effect of barring the He had remembered me from 1949 when spectrum with relation to communities like NAACP from operating in Aiabama for years. JUdge Robert L. Carter and I flIed suit to Clarendon county, South Carollna, and Alabama invoked its foreign corporations law equalize Negro teachers' salaries in Jackson, Prince Edward County, Virginia, where and demanded the membership list. Other the first black lawyers Mississippi had seen segregation was compulsory and black states instituted legislative investigations of in court sl11ce, perhaps. Reconstruction. pupils greatly outnumbered white pupils in NAACP and LOF. The admission of James Meredith to the the public school population. Antiquated legal concepts such as barratry, University of Mississippi cost the federal gov­ NEW NAME FOR GRADUALISM champerty aud maintenance were resurrected ernment millions of dollars. When I received and reenacted into law in Virginia in an at­ an invitation a year or so ago from the The phrase-"Wlth all deliberate speed"­ tempt to castrate the legal effort which cul­ black law students at the university to speak was indeed unfamiliar but, at the same minated in the Brown decision and to pre­ at the law school, although I could not go to time, its deja vu quality was inescapable. It vent its implementation and expansion into see for myself how the university had required no crystal ball to discern that other areas of the public life. These terms, changed, I had long since concluded that the gradualism had a new name and the South aimed at controlling the conduct of lawyers price of Meredith's admission was right. had a llcense for delay. as well as laymen, embodied prohibitions A NEW FYGHT That then unfamlliar phrase ushered in against stirring up litigation, financing of the era of tokenism. Pupll assignment and When the freedom riders and sit-inners law SUits, and "ambulance chasing." moved to center stage in 1960, all school de­ grade-a-year plans suggested by the federal Plaintiffs and prospective plaintiffs in government in its amicus curiae brief on school desegregation cases were visited with segregation suits in the South were Virtually abandoned by our small, overworked LDF the first reargument were devices by which economic reprisals. Others were frightened tokenism was effected. Gradually, and with off by the mere prospect of such reprisals. staff to take on a new and equally diffiCUlt agonizing frustration, a few more black stu­ legal battle. Plessy v. Ferguson." the case Negro teachers and principals, ar. important which upheld separate but equal rallroad dents were admitted to all-white schools. It segment of the economic life llne of the soon became apparent that we would have cars, had to be overruled, The Civil Bights black communities, were threatened with Cases of 1883,1' which held the Civil Right to force a broader implementation of Brown. retrenchment. We then became "disestabllshmentari­ Act of 1875 unconstitutional. had to be re­ We had not anticipated that the black argued. The 1875 act had been designed to ans." 13 We commenced framing complaints community in Montgomery, Ala., would secure the rights of blacks in privately­ in school desegregation cases in which we spontaneously strike out on its own desegre­ owned places of public accommodation. In­ requested in our prayers for relief the "dis­ gation program in 1956 and spark the anti­ Junctions against Martin Luther King from establlshment" of the dual school systems segregation revolution in the black com­ Albany, Ga" in 1962 to selma, Ala., in 1965 and the merging of these separate entities munity for which Brown had prOVided the had to be vacated. The hundreds of jalled into a unitary system. We argued that momentum. We had anticipated bringing freedom riders and sit-inners also had to be Brown imposed on school officials operating suits in the Deep South after Brown to de­ defended against local prosecutions. dual school systems an affirmative duty to segregate other pUblic faclllties but our saint­ DEATH OF MEDGAR EVERS take action to merge the two systems; And ed Rosa Parks "jumped the gun." The suit that Brown W9.S not simply a prohibition for admission of two Negro women to the When Medgar Evers was killed in Jackson against denying a black student who might University of Alabama filed in 1955 had been that summer. I gave Mississippi up "for apply for admission to a white school. This proceeding peacefully until then. Sudden­ dead." I had been there twenty-two times argument fell on some other deaf ears. ly, massive resistance emerged with some on the University of Mississippi case 'alone Most southerners had undoubtedly come more unfamltlar phrases-"nullification and and so I figured my nine lives had run out. to beHeve in 1959, when we first advocated interposition"-as well as threats of violence I shall never forget that trip from Jackson "disestabllshmentarianism," that the worst and official outbursts of defiance of the to the federal courthouse in Meridian during result one could expect from the Supreme courts. the Meredith case. Court's decision was some blacks in school GOVERNMENT INACTION We were on our way to the courthouse to file a contempt of court action against the with whites. And the majority of the white The lack of strong support for the Brown population in the rest of the country proba­ Governor of Mississippi who had called for decision in 1954 and the years immediately massive resistance on the part of every Mis­ bly hoped we would accept this new com­ thereafter on the part of the Executive promise of constitutional rights, especially sissippi official. Medgar was driving. as he Branch of the national government not only had done so often. I sat beside him in the after federal troops had to be sent into fed lUIlbivalence about the correctness of the Little Rock to enforce the right of a few front seat. My secretary and James Meredith decision, but it emboldened Southern gov­ sat on the back. When he came to a familiar black children to enter the high school ernors and state legislators. An avalanche of there. stretch of road running through a deserted anti-Brown statutes had to be declared un­ wooded area Medgar said. "Don't turn around * * * * constitutional. Our case10ad was mount­ now. but we are being followed by a state This narrow view of the impact of Brown ing. Big money was hard to come by. trooper." James Meredith's admission to the had also settled upon a large part of the The Internal Revenue service was per­ University of Mississippi cost the black com­ black community which found the price of suaded in 1956 that the NAACP should divest munity Medgar Evers' life. desegregation too high. For example, schools itself of the formidable tax-exempt Legal By the time we got back to more than in Little Rock had been closed for a time; Defense Fund lest that tax exemption be 100 pending school desegregation cases in the University of Georgia had also been tem­ take" away. This was a highly sophisticated 1965, the Brown decision was well on its porarUy closed in a back-breaking effort to body blow to the organization and its legal way to being effectively overruled by the in­ secure the admission of two stUdents; all arm, inflicted by the national government. migration of blacks to the decaying central schools in Prince Edward County had been It frightened the leadership, led to internal cities and the out-migration of whites to closed and remained closed for a decade; the organizational strife which greatly weak­ new suburban communities. When we filed best black teachers were being assigned to ened both organizations, wrecked all plans for suit to desegregate the publlc schools in At­ White schools; the best black students were building black and white community sup­ lanta, Ga., in 1958, for example, the school being admitted to white colleges; and the port and for an orderly, coordinated progres­ popUlation was about 40 per cent.black best black puplls were being assigned under sion of school desegregation lawsuits and and 60 per cent white. Today, the school pupU assignment to white schools. This more lawsuits in other areas. popUlation in Atlanta is about 80 per cent restricted view of Brown thus became a ROLE OF LAWYERS black. Atlanta now has a black superintend­ major roadblock to wider implementation. One of the things we had learned by 1965, ent of schools and a black mayor. Thus, Our best-laid plans for speeding desegre­ when these Northern school cases got under while everything else in the public life of gation were deralled, however, not only by way, was that we lawyers could not control Atlanta is desegregated twenty years after the unfamiliar phrase With which we had to the course of history. Our role was simply Brown. the schools are not. In New York deal but by the confiuence of many other to represent those who demanded action by City, whites are now considered a minority foreseen and unforeseen events. As blacks be­ the state. Moreover there were many school in the school system. gan marching to the beat of a different situations in the North reSUlting from school NO SEGREGATION PLAN drummer, the South could not believe its board action, and the action of other pUblic In the Deep South no school board came ears. It retaliated with massive resistance to officials, which were clearly within the con­ forward With a plan of its own to desegregate school desegregation as promised. We had templation of Brown. its schools. A law suit had to be brought The "freedom riders" ignited the flames of in Virtually every instance if any movement Footnotes at end of article. massive resistance in Mississippi. That official toward desegregation was to be expected. Prlay 15, 1974- CONGRESSIONAL RECORD-SENATE 14921 Most black parents remained fearful for the 1936 with the admission of Donald Murray to strue the Amendment as abolishing such safety and emotional well being of their the law school of the University of Maryland segregation of Its own force? children and black teachers continued to pursuant to an order of the highest court of "On tlle assumption that the answers to see only job losses for their ranks. Relief that state) ,. that the time had come for questions 2 (a) and (b) do not dispose of the from the impossible task of trying to caiTy black Americans to claim Charles Sumner's issue. Is it within the judicial power, in con­ a nationWide load of school desegregation legacy,l1 Our concession has been construed, struing the Amendment, to abolish segrega­ f:uits came for the hard pressed LDF lawyers it seems, as a prohibition against looking tion in public schools? in the form of Congressional authorization anew at the physical equity issue in all black 'Assuming it is decicled that segregation for school desegregation suits by the C!vil central city schools. in pUblic schools violate3 the Fourteenth Rights Act of 1964. Of course, executive Consequently, as for the future, It appears Amendment: action With respect to the bringing of law­ there are two very difficult legal problems (a) would a decree necessarily follow pro­ suits is wholly dependent on the domestic ahead stemming from B1'own. One is that viding that within the limits set by normal polley of the then current administration posed by the quality of education afforded geogral)hic school districtlng, Negro children but this monumental piece of legislation the black poor in segregated inner city should forthwith be admitted to schocls of meant that the national congress had once schools. The other Is that presented by the their choice, or again assumed its responsibility to enact presence of a new black middle class seeking (b) may this Court in the exercise of the legislatIon to enforce the Fourteenth "reparations" When it comes to admissions equity powers, permit an effective gradual Amendment. to higher educational faclllties and when it adjustment to be brought about from existing The years have indeed gone by. It is now comes to job opportunities in the school sys­ segregated systems to a Eystem not based on twenty years after the Supreme Court said tem's upper echelons. color distinctions? segregation of Negro chlldren in the publlc In retrospect, it Is difficult now to say , On the assumption on which questelons 4 schools generates "a feeling of inferiority" whether desegregation of the public schools (a) and (b) are based, and assuming further that this Court will exercise its equity powers in them "as to their status in the community would have progressed more rapidly If the that may affect their hearts and minds in to the end described In question 4(b). a way unlikely ever to be undone." In the Supreme Court had adopted petitioner's view (a) should this Court formulate detailed massive de facto segregated school systems of the type of relief to which they were en­ decrees in these cases; in urban America toda.y, children of the titled and had never Invoked the phrase (b) If so what specific issues should the "black-is-beautiful" era view pictures in "with all deliberate speed." What can be decrees reach: their black studies classes of black members said with some certainty Is that without (c) should this Court appoint a special sitting on the Supreme Court, in the halls Brown there would not have been a civil master to hear evidence with a view to rec­ of Congress, in the President's cabinet, and rights revolution. ommending specific terms for such decrees; at posts in all levels of federal, state, and FoorNoTEs (d) should this Court remand to the court3 local governments. The status of blacks in of first instance with directions to frame the national community since Brown has 1 Brown v. Board of Education of Topeka, decrees In these cases, and If so, whll.t gen­ changed visibly. 347 U.S. 483 (1954). The court said: eral directions should the decrees of this "Because these are class actions, because IMPACT OF "BROWN" Conrt include and what procedures should of tbe wide applicablllty of tbis decision, and the courts of first instance follow in arriv­ To the extent that opportunities for blacks because of the great variety of local condi­ ing at the specific terms of more detailed to move Into the mainstream increase, Brown tions, the formulation of decrees in these decrees? is implemented. Moreover, television which cases presents problems of considerable com­ The Attorney General of the United States seems to have as much impact as elementary plexity. On reargument. the consideration of is Invited to take part in the oral argument schools on the minds of young children, now appropriate relief was necessarily subordi­ and to file an additional brief if he so de­ portrays blacks as people who use the same nated to the primary question-the con­ sires." toothpaste as their white counterparts, eat stitutionality of segregation in pUblic educa­ (3) Sweat v. University of Tex9.s, 339 U.S. the same cereals, and buy the same patent tion. We have now announced that such 629 (1950): McLaurin v. University of Okla­ medicines. segregation is a denial of tbe protection of homa, 339 U.S. 637 (1950); Sipuel v. Uni­ It seems that today Brown has little prac­ the laws. In order that we may have the full versity of Oklahoma, 332 U.S. 631 (1968). tical relevance to central city blacks. Its assistance of the parties in formulating de­ (4) Missouri ex reI. Gaines v. Canada, 305 psychologica.l and legal relevance have al­ crees. the cases will be restored to the docket, U.s. 337 (1938). ready had their effect. Central city blacks and the parties are requested to present fur­ i> At page 190. seem more concerned now with the political ther argument on Questions 4 and 5 pre­ • At page 10. and economic power accruing from the new viously propounded by the Court for the re­ 7 At page 24. black concentration than they do With bus­ argument this Term. The Attorney General 'At page 29. ing to effect school desegregation. The Dil­ of the United States is again invited to par­ OAt page 2. emma for these blacks is real. It is diversified, ticipate. The Attorneys General of the states 10 At page 4. but there is now a new national black com­ requiring or permitting segregation in pUb­ 11 Clemons v. Board of Education of Hills­ munity With pride in itself and its accom­ lic education wllI also be permitted to appear boro, 288 F. 2d 853 (6th eir.) cert. den. 350 plishments. as amici curiae upon request to do so by Sep­ U.S. 1006 (1956). tember 15, 1954, and submission of briefs by 12 Dove v. Parham, 282 F. 2d 256. 259 (8th In addition, it appears that it may be October I, 1954." Clr., 1966). meaningless to talk about feelings of inferi­ 2 Brown v. Board of Education of Topeka, t:llt appears that the first time a court ority to a black youth in the central city 347 U.S. 972 (1953), The five questions read used the word "dlsestabllsh" with reference Where blacks no longer consider themselves as follows: to the requirements of Brown was In Par­ inferior to whites and no longer believe that "Each of these cases is ordered restored to ham v. Dove. 271 F. 2d 132, 138 (8th Clr., any institution which is all white is neces­ 1959). There the court said: sarily good and ought to be integrated. the docket and Is assigned for reargument on Monday, October 12, next. In their briefs and "The lack of any affirmative plan or ac­ Brown has been a second "Emancipation on oral argument counsel are requested t{J tion to clisestablish the segregation status Proclamation" in that It has freed blacks discuss partiCUlarly the fOlloWing questions which had unconstitutionally been set up In from their o'wn feellngs of inferiority and insofar as they are relevant to the respective the District, other than as the Board mIght absolved the white leadership class of Its cases: be called upon to deal under the provisions of the 1956 or the 1959 Act with some indi­ feelings of guilt. Thus, the rationale for 1. What evidence is there that the Con­ Brown may have slipped away. It may need vidual' application for assignment to an­ gress which submitted and the State legis­ other school, would perhaps not measure up a new rationale that goes something like latures and conventions which ratified the this: Segregation Is bad because the only to the legal and moral responSibility resting Fourteenth Amendment contemplated or did on a Board under the expression and hold­ way blacks can get an equal education Is not contemplate, understand or did not un­ to go where the money Is. Ing of the Brown cases." derstand, that it would ab<>lish segregation in "U.S. 537 (1896). A CONCESSION public schools? '0 U.S. 3 (1883). We conceded in the Brown cases that the 2 If neither the Congress in submitting nor 18 Pearson et al. v. Murray, 182 A. 590 facillties provided black children were equal the States in ratifying the Fourteenth (Court of Appeals, Md., 1936) . to those provided white children. We did this Amendment understood that compliance " Charles Sumner argued the case of Rob­ because we sought to ellminate any poSSibll­ with it would require the immediate aboli­ erts v. City of Boston, 5 Cush. (Mass) 193 tty for another decision based upon separate tion of segregation in pUblic schools, was It (1849). In which he sought to secure the ad­ but equal. We wanted the Court to rule nevertheless-the understanding of the fram­ mission of black pupils in Boston's pUblic squarely on the issue of segregation itself. ers of the Amendment: school system to white schools long before There had been enough cases like the TexlLS (a) that future Congresses might in the the adoption of the Fourteenth Amendment. and Oklahoma cases based upon a finding exercise of their power under sectlon 5 of the He was later a Massachusetts Senator and that equal facilities had not been prOVided Amendment, abolish such segregation, or the leader in the Congress with respect to for blacks. We also had the feeling (as a re­ (b) that It would be Within the polltica.l post-CiVil War Amendments and civil rights legislation designed to enforce those amend­ sult of thIs series of cases Which began In power, In light of future conditions, to con- ments. 14922 CONGRESSIONAL RECORD-SENATE May 15, 1974 THE RIGHT TO EQUAL EDUCATIONAL OPPORTUNITY country. Section 5 of the 14th amendment Just as busing is not the problem Mr. HUMPHREY. Mr. President, to­ gives Congress no power to reduce the actually addressed by this amendment, day we are considering an amendment 14th amendment's protections of equal busing is not the problem which is at to S. 1539, Education Amendments of opportunity. In fact, the 14th amend­ the center of quality education in Amer­ 1974, which is called an equal educa­ ment was specifically designed to provide ica today. Where it is used to achieve tional opportunities amendment, but protection to those who had historically school desegregation, it can provide only which violates constitutional due process been denied equality of rights-it was an a partial and temporary answer to the and equal protection of the laws, under­ effort to expand and extend those rights critical needs of educating all of Ameri­ mines the progress our country has made in a way which would not be subject to ca's children. Wherever possible, we toward equality of opportunity during capricious curtailment by simple legisla­ should make full use of other methods to the last 20 years. .tive action in the future. overcome the educational disabilities of Amendment No. 1144 is presented to Many of the supporters of this amend­ children isolated in the urban and rural us as an amendment to end busing, to ment are represented as strict construc­ ghettos of poverty in America. These can prevent harm to the health and welfare tionists of the Constitution. I challenge include carefully planned school district of American children through the en­ them to prove their enthusiasm for the rezoning and new school construction to forced traveling of long distances to and Constitution by rejecting this amend­ benefit all children in the local area, as from their schools, or through enforced ment, since its requirements are a clear well as selective assignment of children '.'"tendance at inferior schools. In fact, violation of the 14th amendment. from poor schools to classes in surround­ ~his amendment does something quite What we have here is a challenge-a ing schools offering a better learning different. Only 3 percent of the children clear threat-to the integrity and in­ environment. who ride buses to school do so for pur­ dependence of our judicial system, and Busing is no substitute for open neigh­ poses of ending school segregation. Most to the balance of power between the judi­ borhoods, or for enabling families to earn children ride buses to school because it cial and legislative branches of Govern­ a better income or know a better quality is the only way possible to get them to ment. We have seen enough harm done to of life in a neighborhood. At best it is schools where they can be provided with the political fabric of our country in the a temporary measure until better educa­ a quality education. Beyond that, there last few years by efforts of the executive tional resources are provided for all chil­ has already been a decision of the Su­ branch to impinge on the powers of Con­ dren. We need the best schools In areas preme Court that busing cannot be so gress. We need not create further turmoil where people have the least, and the most extensive as to pose a threat to the and distortion by extending this confiict competent teachers where children have health or welfare of the children-spe­ to include a struggle by the Congress educational problems. We must no longer cifically, that the time or distance of to usurp judiciary powers. permit the quality of a child's education travel shall not be so great as to risk Mr. President, this country has made to be determined by the wealth or poverty the health of the student or significantly immense strides toward the achievement of his community. impinge on his or her educational of equal opportunity for all its citizens. The issues we should be addressing are process-and this restriction is reiterated Much of what has been done has oc­ the urgent problems of educational dis­ in S. 1539. curred in the very short space of 20 abilities of children. These are the prob­ Busing is not the subject of this years since the original Supreme Court lems on which we can have a construc­ amendment. This amendment is an at­ decision on school desegregation. When tive impact in the consideration of this tempt to reverse the movement toward I consider the monumental changes education bill. But the amendment pres­ desegregation in our schools. Not onls which have occurred during this period­ ently before us would forbid us to focus does it effectively prohibit further action not just in legally defined rights, but in on the possibilities before us, and rivets to desegregate school systems which are the attitUdes of the people, and especiai­ our attention instead on the errors of found by the courts to be not in com­ ly the young, of this country-what most the past. This amendment represents an pliance with statutory law requirements impresses me is the active support, the unfortunate aberration from the remark­ for equality of educational opportunity, peacefulness, and the widespread extent able social progress of our country dur­ but it encourages efforts by local educa­ of the cooperation which have made pos­ ing the last 20 years, and should be tional agencies to take legal action to sible such a revolution of justice. I have defeated. resegregate areas where desegregation been proud to be one of the leaders in An excellent editorial bearing on the has already occurred. It provides a mech­ the congressional actions which have issue of school desegregation and busing anism for creating strife in localities aided in this movement. One of the most appeared in the Washington Post of where millions of law-abiding citizens important steps was the Civil Rights Act today. I ask unanimous consent that the have participated in the peaceful de­ of 1964, of which I had the privilege of editorial entitled "Race, Schools, and the segregation of their communities. being the fioor manager. I find it diffi­ Senate" be printed at this point in the While the amendment is put forward cult to understand why, 10 years after RECORD. by its sponsors as an effort to end busing the Civil Rights Act and 20 years after There being no objection, the editorial for purposes of redressing racial imbal­ the initial Supreme Court decision, some was ordered to be printed in the RECORD, ance, this is not the only mechanism by people should now wish to undo all we as follows: have accomplished, to roll back the clock which it subverts efforts to achieve racial RACE, SCHOOLS, AND THE SENATE equality. It establishes a system of priori­ to a time when our country made only ties requiring that even the simple device minimal efforts to make real for all of In March of 1972, when Watergate was its citizens the guarantees and hopes still a gleam in Gordon Liddy's eye and the of altering school district lines be for­ Board of Directors (as we now know) had bidden until a number of other alterna­ embodied in the Constitution. yet to give final approval to his plans, Mr. tives have been attempted, and that even I am aware that the Constitution is a Nixon unveiled his preposterous "anti­ this minimal action cannot be taken un­ document subject to changing interpreta­ busing" plan. Mr. Erhlichman, now bUSy less it can be proved that the lines were tions. And I understand that there are with other matters, did the best a lawyer drawn with the specific intent of creat­ times when it is necessary to compromise could do to justify and explain its patent ing a segregated school system. Further, in order to achieve at least a part of illegalities to the press. And Richard Klein­ dienst, then Acting Attorney General and if there is a shift of housing patterns, what we feel needs to be done. But this nothing if not blunt, happily explained to a so that a once-integrated school becomes amendment is in clear violation of the committee of Congress that the proposed segregated, no action may be taken to re­ Constitution. And it is in clear conflict legislation would authorize the reopening dress this situation if-on the basis of not only with what we look forward to of every school case-North and South-that the previous situation-a court had once achieving in the future, but with the had been settled since the Supreme Court's ruled that racial balance had been spirit of what we have accomplished in original school desegregation decision in achieved. the past. There is no room for compro­ 1954. These preposterous restrictions make a mise on this measure. This is an effort to Since that time we have acquired. for our sins, a much richer context of administra­ mockery of the title of the amendment. rob our minorities of hopes which had tion law-breaking and contempt for the Beyond that, they make a mockery of the gained substance, to push them once commands of the constitution into which basic constitutional provisions intended again away from full participation in our to fit this partiCUlar exercise in defiance and to protect equality of opportunity in this society. contempt-from the court-blocked adven- l11ay 15, 197'.4- CONGRESSIONAL RECORD-SENATE 14923 tures in impoundment of congressionallY constitutional command that is the bedrock simply limit busing for the purpose of appropriated funds to the watergate crimes of Brown so as to take account of changed achieving racial balance to the appro­ and Improprieties to the sloven procedures circumstances that underlie so many school priate school closest to a student's resi­ for obtaining wiretaps, which has just com­ cases 20 years later. This Is as it should be. dence. Furthermore, the amendment pelled the Burger Court unanimously to TIle question Is whether the Senate will walt. remedy ma.y be effected only after seven render a decision that will free some 600 The alternative before it today was admirably persons accused and/or convicted of violat­ summed up by William McCulloch, who was other remedies, or combinations of reme­ Ing federal criminal statutes. So it Is hardly ranking Republican member of the House dies, have been tried and proven inef­ surprising that the administration's pro­ JUdiciary Committee, when the Nixon bill fective, and only If it would not endan­ posed monument in the field of desegregation first came up two years ago. accompanied by ger the health of the student or impinge law turned out itself to be a monumental a proposal for a temporary freeze 011 busing on the educational process. challenge to due process, to the Constitution orders; Another important provision of this and to the rule of law. What is surprising "It is with the deepest regret that I sit here amendment states that "failure of an and-to put it mlldly-dlstresslng, is that today to listen to a spokesman for tIle ad­ educational agency to attain a balance, two years later the U.S. Senate is considering ministration asking the Congress to prosti­ commemorating the 20th anniversary of the tute the courts by obligating them to sus­ on the basis of race, color, sex, or na­ Supreme Court's 1954 decision by passing pend the equal protection clause so that tional origin, of students among its th1s proposal. Today the Senate is scheduled Congress may debate the merits of further schools shall not", in it itself, "constitute to vote on a House-passed variation of the slowing down and perhaps even rolling back a denial of equal educational opportu­ Nixon administration bl1l which haS been desegregation in public schools-What mes­ nity or equal protection of the laws". introduced by Senator Edward J. Gurney of sage are we sending to our black people? Is This important provision should help Florida as an amendment to an extension tllis any way to govern a country?" clear up the controversy which has en­ of the federal school aid act. And the vote, according to most accounts, is likely to be Mr. TOWER. Mr. President, as co­ sued since the Swann decision over the close. sponsor of the amendment being offered use of numerical goals and quotas in Everybody, as it seems. Is against skul­ by my good friend, the Senator from determining whether or not a school is duggery and for the rule of law-except Florida, I would like to take this oppor­ providing equal educational opportunity. when it Is either inconvenient or inexpedient tUnity once again to add my voice to Section 804 specifically prohibits prac­ to explain. Thus, legislators who in a non­ the call for reason on the issue of forced tices which deny equal educational op­ political year would acknowlecige themselves busing of schoolchildren. portunity, such as deliberate segregation, horrified by the reckless sweep of this pro­ For too long the Senate of the United discrimination in the employment and posal and acutely aware of the cynicism from which it spl·lngs. are counted among States has stood in direct conflict not assignment of faculty, and failure to take those who, for "political" reasons are llkely only with the voice of the people, but also action to overcome language barriers. to go over the side and vote with Mr. Gurney. with the voice of constitutional wisdom, On the other hand, section 806 adds We refer to the cynicism underlying the sound educational policy, and the objec­ the important clarification that assign­ effort because for all the chaos and disrup­ tive findings of every study made of the ment of a student to the appropriate tion it could bring to settled school systems effect of forced busing to achieve educa­ school nearest his home is not a denial North and South, the proposal itself would tional objectives. The time has come for of equal educational opportunity or of almost undoUbtedly be overturned in many of its key parts by the Court, meanwhile us to listen to the voices all around us equal protection of the laws. unless such creating new and burdensome problems for which are saying "Busing is ineffective an assignment is made for the purpm:e numerous of those communities whose in achieving social goals for which it was of segregating stUdents, or the school to burdens it purports to relieve. promoted; busing is endangering the which he is assigned was located for the Consider the bill's provisions. Its list ot lives of young children; and busing is purpose of segregation. This provision mandatory remedies that must be invoked wrong." would enable students to attend their before busing can be ordered could cost tax­ Mr. President. in every poll taken on neighborhood schools, unless there is ridden communities a fortune in the demoli­ the question of forced busing, the Amer­ some showing of segregatory intent. tion and construction of schools. It is a rich man's blll, in effect providing that any bus­ ican people have rejected this tool of the The court is instructed to respect ing which occurs will spare the affluent social planners as a means of guarantee­ school district lines in formulating its sUburbs and be contained within geographi­ ing equal educational opportunity. Less remedies unless it is established that cal limits that are likely to result only in than 2 months ago, the Members of the they have been drawn for the purpose, sending poor blacks from their own inferior House of Representatives adopted the and had the effect of segregating chil­ schools to the inferior schools of neighboring language we are considering here by an dren. poor white children-to communities where overwhelming majority of almost 3 to Once a school system is desegregated, racial hostilltles and Insecurities are keenest. 1. Our responsibility to the people we the amendment provides that no subse­ And, above all, it says to black children-to black people generally in this country-that represent should be clear. quent population shift shall constitute even where a finding has been made of un­ The amendment of the distinguished a cause for civil action for a new deseg­ constitutional discrimination against them Senator from Florida does not represent regation plan, and provides for reopen­ by the state, there wlll be no remedy in many an effort to deny equal educational op­ ing of existing comt order cases, so that cases. It Is a tribute of sorts to the monstros­ portunity to anyone, as some of our col­ they may be modified to comply with ity of this concept, in a nation of laws. that leagues would have us believe. On the this measure. back in 1972 even Mr. Ehrllchman had trou­ contrary, the amendment specifically Finally, court orders shall be termi­ ble explaining it when pressed. states that "all children enrolled in pub­ nated if a court finds that a unitary In the 20 years that have passed since the Supreme Court rendered its original decision lic schools are entitled to equal educa­ school system exists. in Brown. and in the 10 years that have tional opportunity without regard to Mr. President, this amendment is an passed since the Civil Rights Act of 1964 gave race, color, sex, or national origin." eminently fair and reasonable solution that decision heightened impact and author­ What this amendment proposes to do is to the critical problems in education to­ ity, there have been some lower court deci­ "to specify appropriate remedies for the day which result from the transporta­ sions and administrative interpretations orderly removal of the vestiges of the tion of students. My support for this that, to our mind, have skewed and distorted dual school system." amendment is based on the conviction the meaning of the law and imposed sense­ less burdens on communities around the Earlier congressional efforts to pro­ that the laws of this Nation must not country, so that both blacks and whites have vide statutory limitations on the discre­ confer either favor or penalty upon any suffered. There have been, in other words, tionary equity jurisdiction of U.S. dis­ individual simply because of the color of some bad busing decisions and some unrea­ trict court judges have foundered on his skin. Indeed, our laws must be en­ sonable and unsound bureaucratic regula­ questions of constitutionality. Today, forced without regard to race, sex, or na­ tions rendered. It could hardly be otherwise. however, we have before us an amend­ tional origin. There is simply no accept­ given both the complexity of the cases and ment which seeks only to limit the reme­ able justification for denying this color­ the famlliar resistance to reasonable and dies available to U.S. district court blind protection, even to achieve goals desirable change that preceded and, in effect, judges in exercising their equity power brought on the compulsory programs to which we feel are themselves consistent which so many now object. But it has been jurisdiction. The Supreme Court, itself with constitutional principles. clear for some time now that the Supreme has urged the Congress to provide direc­ Mr. President, I commend the Senator Court was moving carefully and deliberately tion in this critical area. from Florida for his sponsorship of this to refine its position in consonance with the Mr. President, this amendment would amendment, and urge its adoption. 14924 CONGRESSIONAL RECORD - SENATE May 15, 1974 IN SUPPORT OF THE GURNEY AMENDMENT TO By passing this amendment, the sen­ Mr. ROBERT C. BYRD. I announce S. 1539 ate can join the House of Representa­ that the Senator from Arkansas (Mr. Mr. ROTH. Mr. President, I have sup­ tives in adopting a clear congressional FuLBRIGHT), the Senator from Alaska ported the neighborhood school concept policy in support of the neighborhood (Mr. GRAVEL), the Senator from Hawaii ever since I have been in Congress. For school concept. I urge my colleagues to (Mr. INOUYE), and the Senator from that reason, I am supporting the amend­ join me in supporting its adoption. New Mexico (Mr. MONTOYA) are neces­ ment offered by Senator GURNEY which Mr. CRANSTON. Mr. President, I wish sarily absent. clearly states a congressional policy re­ to comment briefly on th~ busing amend­ Mr. GRIFFIN. I announce that the quiring that no child be transported to ment now before the S;:'La'e. Senator from lllinois (1'Ir. PERCY) is nec­ any school other than the one which is The current issue was first brought essarily absent. "closest or next closest" to his home. before the Senate and the country back I also announce that the Senator By attending his "neighborhood in 1972 when Jolm Ehrlichman and from Arizona (Mr. GOLDWATER) is ab­ school" a child benefits in several ways. Richard Kleindienst decided to stir sent on official business. He can participate in after-school activ­ things up in the country by proposing I further announce that, if present ities and thus develop a greater rapport an antibusing amendment. Those gentle­ and voting, the Senator from illinois with his peers, as well as developing men have since left the executive branch (Mr. PERCY) would vote "nay." friendships at home which can be because of ·Watergate. But once again we The result was announced-yeas 9, strengthened while at school. His par­ see this issue stirring. Two years ago, nays 8"1, as follows: ents will be able to participate and take the Senate adopted an amendment offer­ INo. 197 Leg.] a greater personal interest in the child's ed by Senator MIKE 1\·fANSFIELD, the day-to-day activities through meetings Democratic leader, and Senator HUGH YEAS-9 Bayh Hartke Pastore with teachers, other parents, the school SCOTT, the Republican leader in the Sen­ Eiden Mathias Symington board, and the children themselves. ate, which outlawed busing that went too Eagleton Nelson Taft Moreover, because the neighborhood far-that involved busing large numbers NAY8--84 school often becomes a center for com­ 1a~'ge of children distances and toolt too Abourezk Eastland Metzenbaum mtmity education, adults, as well as chil­ much time out of the day, interfering Aiken Ervin Mondale dren, can make use of the schools' facil­ with the children's education. Allen Pannln Moss ities during evenings or on weekends. Baker Fong Muskle The present amendment that stems Bartlett Griffin Nunn Passage of the Gurney amendment will from the Ehrlichman-Kliendienst days­ Beall Gurney Packwood insure that a child is not assigned to a offered this time by Senator GURNEY of Bellmon Hansen Pearson school far distant from his home. It ex­ Florida-would authorize the reopening Bennett Hart Pell Bentsen Haskell Proxmlre plicitly prohibits any Federal court, de­ of every school case-North, South, East, Bible Hatfield Randolph partment, or agency from ordering that and West-that has already been settled Brock Hathaway Rlblcoff students be transported to any school over the 2G years since the Supreme Brooke Helms Roth Buckley HollIngs Schweiker other than the one closest or next closest Court's original school desegregation de­ Burdick Hruska Scott. Hugh to his place of residence. cision in 1954. Byrd. Huddleston Scott. The Gurney amendment effectively re­ I find this situation especially sadden­ Harry P., Jr. Hughes William L. Byrd. Robert C. Humphrey Sparkman stricts the power of the Federal Govern­ ing because so many communities across Cannon Jackson Stafford ment to implement plans of forced bus­ America-including California-have Case Javlts Stennis ing. I am unalterably opposed to busing tl"ted so hard to make these desegrega­ Chlles Johnston Stevens Church Kennedy Stevenson as a means of bringing about racial bal­ tion plans, inclUding busing, work in the Clark Long Talmadge ance in our school system just as I have best interests of their children and in the Cook Magnuson Thurmond been opposed in the past to busing to interest of community cooperation and cotton McClellan Tower Cranston McClure Tunney maintain segregated schools. peace. It is appalling to me to think of CurtIs McGee Welcker Although a number of scholars have disrupting the progress these good-spir­ Dole McGovern Williams studied the effects of busing, there has ited citizens have fought for and won. Domenlc! McIntyre Young never been any real evidence compiled This amendment poses a mom:mental Dominick Metcalf to indicate that busing has improved challenge to due process of law. I know PRESENT AND GIVING A LIVE PAIR, AS educational quality. To the contrary, in of no busing issues anywhere in Califor­ PREVIOUSLY RECORDED-1 some cases, busing has created bitterness nia that aggravate or concern the people Mansfield, fer and polarization throughout communi­ greatly at the present time. I see no rea­ NOT VOTING-6 ties. son to support an amendment that would Fulbright Gravel Montoya As an alternative to busing, I favor the prostitute the courts by obliging them to Goldwater Inouye Percy development of first-rate, high-quality suspend the equal protection clause of So Mr. BAYH'S amendment was re- neighborhood schools for all students, the Constitution. So I am going to vote jected. regardless of race. Massive busing has against the Gurney amendment. Mr. JAVITB. Mr. President, I wish to cost taxpayers thousands of dollars and Mr. ROBERT C. BYRD. Mr. President, move to table the Gurney amendment, schoolchildren hours of time. I am con­ I ask unanimous consent that time on all but Senator GURNEY has a parliamentary vinced that this money could be spent rollcall votes today, back to back, that inquiry. I yield to him. more wisely if it were used to hire more will follow the initial rollcall, be limited Mr. GURNEY. Mr. President, a par­ and better teachers and additional learn­ to 10 minutes, with the warning bell to liamentary inquiry. ing materials for the classrooms of dis­ be sounded after the first two and a half The VICE PRESIDENT. The Senator advantaged pupils. minutes. will state it. Mr. President, the Senate is presented The VICE PRESIDENT. Without ob­ Mr. GURNEY. Mr. President, it is my today with a significant opportwlity. jection, it is so ordered. understanding that a "yea" vote-- . This body can go on record as clearly The question is on agreeing to the Mr. ROBERT C. BYRD. Mr. President, supporting an end to forced busing. Con­ amendment of the Senator from Indiana may we have order in the Senate, so we currently, it can reaffirm its support for (Mr. BAYH). can hear the Senators? the neighborhood concept of schools. Al­ On this question the yeas and nays The VICE PRESIDENT. The Senator though this policy is implicit in the have been ordered, and the clerk will call will proceed, but the Senate must be in provisions of S. 1539, the present bill the roll. order. merely restates language contained in The legislative clerl{ called the roll. Mr. GURNEY. Mr. President, do I cor­ the Educational Act Amendments of Mr. MANSFIELD (after having voted rectly understand that a "yea" vote on 1972. The 1972 act failed to curb the use in tbe affirmative). On this vote, I have a this motion will be a vote against the of forced busing as one means to deseg­ pair with the distinguished Senator from Gurney amendment, and a "nay" vote on regate our public schools. Only through Arkansas (Mr. FULBRIGHT). If he were this motion will be a vote for the GurneY acceptance of the Gurney amendment, present and voting, he would vote "nay"; amendment? can the harmful effects of massive busing if I were at liberty to vote, I would vote The VICE PRESIDENT. A vote to table be curtailed. "yea." I withdraw my vote. is a vote against the Gurney amendment. May 15, 1974 CONGRESSIONAL RECORD - SENATE 14925

Mr. JAVITS. Mr. President, a parlia­ PRESENT AND GIVING A LIVE PAIR, AS NOT VOTING-6 PREVIOUSLY RECORDED-1 mentary inquiry. Fulbright Gravel Montoya The VICE PRESIDENT. The Sen.ator Mansfield, for· Goldwater Inouye Percy will state it. NOT VOTING-6 So Mr. ERVIN'S amendment was re­ Mr. JAVITS. Will the Gurney amend­ Fulbright Gravel Montoya jected. ment be open to further amendment if Goldwater Inouye Percy Mr. JAVITS. Mr. President, I move the motion to table is rejected? So Mr. JAVITS' motion to lay on the that the Senate reconsider the vote by The VICE PRESIDENT. The Gurney table Mr. GURNEY'S amendment was which the amendment was rejected. amendment would be open to amend­ agreed to. Mr. PELL. I move to lay that motion ment, but there is no further time for The VICE PRESIDENT. The question on the table. debate. recurs on the amendment of the Sen­ The motion to lay on the table was Mr. JAVITS. Mr. President, I move to ator from North Carolina. The Yeas and agreed to. table the Gurney amendment. nays have been ordered. The VICE PRESIDENT. The bill is The VICE PRESIDENT. The question Mr. ROBERT C. BYRD. Mr. Presi­ open to further amendment. ison the motion to table. dent, may we have order in the Senate Mr. MANSFIELD. Mr. President, if I and in the gallelies. may have the attention of the Senate­ Mr. JAVITS. Mr. President, I believe The VICE PRESIDENT. The Senate The VICE PRESIDENT. The Senate the yeas and nays have been ordered. will be in order. The clerk will not call will be in order. The VICE PRESIDENT. The yeas and the roll until the Senate is in order. Mr. MANSFIELD. Are there any other nays have been ordered, and the clerk The clerk may proceed. busing amendments that are Intended will call the roll. The legislative clerk called the roll. to be called up tonight? If not, that is it, The legislative clerk called the roll. Mr. MANSFIELD (after having voted then. Mr. MANSFIELD (when his name was in the negative). Mr. President, on this Mr. GRIFFIN. Mr. President, it should called) . On this vote I have a pair with vote I have a pair with the Senator be made clear that amendments on that the Senator from Arkansas (Mr. FUL­ from Arkansas (Mr. FuLBRIGHT). If he subject can be brought up tomorrow un­ BRIGHT). If he were present and voting, were present and voting, he would vote til the hour of 1 o'clock. he would vote "nay." If I were permitted "yea." If I were permitted to vote, I Mr. MANSFIELD. That is correct. Tha to vote, I would vote "yea." Therefore, I would vote "nay." Therefore I withdraw Senate will convene at 9 o'clock tomor­ withhold my vote. my vote. row morning. Are there any further Mr. ROBERT C. BYRD. I announce Mr. ROBERT BYRD. I announce that amendments 011 busing tonight? All that the Senator from Arkansas (Mr. the Senator from Arkansas (Mr. FUL­ right; we have one. FuLBRIGHT), the Senator from Alaska BRIGHT), the Senator from Alaska (Mr. Mr. BAYH. Mr. Presi~ent, I ask that (Mr. GRAVEL), the Senator from Hawaii GRAVEL), the Senator from Hawaii (Mr. my amendment be stated. (Mr. INOUYE), and the Senator from INOUYE), and the Senator from New The VICE PRESIDENT. The amend­ New Mexico (Mr. MONTOYA) are neces­ Mexico (Mr. MONTOYA) are necessarily ment will be stated. sarilyabsent. absent. The second assistant legislative clerk Mr. GRIFFIN. I announce that the Mr. GRIFFIN. I announce that the proceeded to read the amendment. Senator from minois (Mr. PERCY) is Senator from Illinois (Mr. PERCY) is Mr. BAYH. Mr. President, I ask unani­ necessarily absent. necessarily absent. mous consent that the amendment be I also announce that the Senator from considered as having been read. I also announce that the Senator from Arizona (Mr. GOLDWATER) is absent on The VICE PRESIDENT. Without ob- Arizona (Mr. GOLDWATER) is absent on official business. jection, it is so ordered. official business. I further announce that, if present The amendment is as follows: I further announce that, if present and voting, the Senator from Illinois On page 388, line 9, Insert the following: and voting, the Senator from Illinois (Mr. PERCY) would vote "nay." SECTION 807. (a) Notwithstanding any (Mr. PERCY) would vote "yea." The result was announced-yeas 38, other provision of law, after June 30, 1974, no The l'esult was announced-yeas 47, nays 55, as follows: court of the United States shall order the nays 46, as follows: Implementation of any plan to remedy find­ [No. 199 Leg.] ing of de jure segregation which Involves the [No. 198 Leg.] YEAS-38 transportation of students, unless the court YEA8-47 Allen Cotton Long first finds that all alternative remedies are Baker Curtis McClellan inadequate. Abourezk Hughes Packwood Bartlett Dole Aiken McClure (b) Before Implementing any plan pro­ Humphrey Pastore Bennett Eastland Nunn Bayh Jackson Pearson Bentsen Ervin Scott, posed by a local education agency to remedy Bellmon Javlts Pell Bible Fannin WlIllamL. a judicial determination of de jure segrega­ Biden Kennedy Randolph Brock Griffin Sparkman tion. the court shall find that such plan Brooke Magnuson Riblcolf Buckley Gurney Stennis minimizes the transportation of students. Burdick Mathias Scott, Hugh Byrd, Hansen Talmadge SEC. 808. In the formulation of remedies Case McGee Stalford Harry F., Jr. Helms Thurmond Byrd, Robert C. Hollings under this Title the llnes drawn by a State Church McGovern Stevens Tower subdividing Its territory into separate school Clark McIntyre Stevenson Cannon Hruska Young Cranston Chiles Huddleston districts, shall not be ignored or altered ex­ Metcalf Symington Cook Johnston Eagleton Metzenbaum Taft cept where It Is established that the lines Hart Mondale Tunney NAYS-55 were drawn, or maintained or crossed for the Hartke Moss Welcker purpose, and had the effect of segregating Abourezk Hatfield Pastore children among public schools on the basis Hatfield Muskle Williams Aiken Hathaway Pearson Hathaway Nelson Bayh Hughes Pell of race, color, sex, or national origin, or where It Is established that. as a result of dis­ NAY8-46 Beall Humphrey Proxmlre Bellmon Jackson Randolph criminatory actions within the school dis­ Allen Curtis Johnston Biden Javlts Riblcolf tricts, the lines have bad the effect of segre­ Baker Dole Long Brooke Kennedy Roth gating children among public schools on the Bartlett Domenlci McClellan Burdick Magnuson Schwelker basis of race, color, sex, or national origin. Beall Dominick McClure Case Mathias Scott. Hugh Bennett Eastland Nunn Church :McGee Stafford Mr. BAYH. Mr. President, I should like Clark McGovern Stevens Bentsen Ervin Proxmire Cranston McIntyre to inform senators that normally I Bible Fannin Stevenson Roth Domenlcl Metcalf Symington would not call up an amendment at this Brock Fong Schwelker Dominick Metzenbaum Taft hour. However, inasmuch as an amend­ Buc~ey GrUfin Scott, Eagleton Mondale Tunney Byrd, Gurney WllllamL. Fong Moss Welcker ment very similar to the amendment Harry F., Jr. Hansen Sparkman Hart Muskle Wlll!arns that was considered and voted down a Byrd, Robert C, Haskall Stennis Hartke Nelson moment ago, it seems to me that at Cannon Halma Talmadge Haskell Packwood that time a number of Senators wanted ChUes Sailings Thurmond PRESENT AND GIVING A LIVE PAIR. AS COOk Hruska Tower PREVIOUSLY RECORDED-1 an up and dO\vn vote on the Gurney Cotton Huddleston Young Mansfield, against amendment. Now that the Gurney amendment has been tabled, for the 14926 CONGRESSIONAL RECORD- SENATE Nlay 15, 1974, sake of minimizing the amount of time, self 3 minutes in opposition to the amend­ I have a pair with the distinguished Sen­ I rise for the purpose of bringing this ment. ator from Arkansas (~!r. FULBRIGHT). If measure back as an amendment in the The PRESIDING OFFICER. The Sen­ he were present and voting, he would first degree in order to save the time ator from New York is recognized for 3 \'ote "yea." If I were at liberty to vote, of the Senate. minutes. I would vote "nay." Therefore, I with­ Basically, it does two things. It does Mr. JAVITS. Mr. President, there are a draw my vote. limit cross-district busing. If a commu­ considerable number of other busing Mr. ROBERT C. BYRD. I amlounce nity has been found guilty of segregation amendments which are major mOves in that the Senator from Arkansas (Mr. and has been ordered by the court to the busing field. F'ULBRIGHT), the Senator from Alaska remedy it, my amendment would pro­ For myself, I would take it that the (Mr. GRAVEL), the Senator from Hawaii hibit a court order from bringing in an Senate has pretty well decided that ques­ (Mr. INOUYE), the Senator from Massa­ adjoining jurisdiction that had not been tion for tonight; that it wants to let this chusetts (Mr. KENNEDY), and the Sena­ guilty of segregation. situation develop as it has developed now tor from New Mexico eMr. MONTOYA) It seems to me that while we should and see how it is being re:-olved, and are necessarily absent. make one live up to the law, we should whether that is satisfactory. There are so ]\11'. GRIFFIN. I announce that the not say to the people in a neighboring many pending cases in the body of law Senator from illinois (Mr. PERCY) is nec­ jurisdiction: "You have to pay the price already made and so many cases that essarilyabsent. for desegregation." have laid down by the Senate itself and I also announce that the Senator from The second thing it \-vould do is to the country itself in regard to this mat­ Arizona (Mr. GOLDWATER) is a.bsent on bring in the language of the Swann ter which the Sen;:tor from Ir:diana oEldal busiuG3s. case as far as it requires that the judge properly referred to. On this vote, the Senator from Arizona and the school authorities look to see if What he does acld is a prohibition on (Mr. GOLDWATER) is paired with the Sen­ any other alternatives are available be­ the courts from making busing orders ator from Illinois (Mr. PERCY). fore ordering busing. which cross educational district lines. If present and voting, the Senator We have in this bill the provisions That is, that we are going to try to dic­ from Arizona would vote "yea" and the ·contained in the Scott-Mansfield tate to the courts upon the general prin­ Senator from Illinois would vote "nay." amendment. If Senators want me to re­ ciples of the Scott-Mansfield compromise The result was announced-yeas 56, mind them of what they are, I shall on busing orders it would make. I believe nays 36, as follows: read them, since a large number of Sen­ the Senate has generally determined, in [No. 200 Leg.) ators are present. They read as follows: respect of the major danger in the Gur­ YEAS-56 ney amendment, that this is not the way No provision of this Act shall be construed Baker E3.stland Nelson to require the assignment or transportation for us to go. Bartlett Ervin Nunn of students or teachers In order to overcome For that reason, this amendment at Bayh Fannin Pastore racial Imbalance. tbis time should be rejected. Beall Griffin Pearson No funds appropriated for the purpose of Bentsen Gurney Proxmlre Mr. ERVIN. Mr. President., will the Bible Hansen Randolph carrying out any applicable progmm may S2;,)Rtor yield me 1 minute? Biden Hartke Roth be used for the transportation of students M:r. BAYH. Mr. President, I yield 1 Buckley Haskell Schwelker or teachers (or for the purchase of equIp­ Burdick Helms Scott, ment for such transportation) In order to mirl'lte to the Senator from North Byrd, Hruska WllliamL. overcome racIal Imbalance In any school or Carolina. Harry F., Jr. Huddleston Sparkman school systern, or for the transportation of Mr. ERVIN. Mr. President, there are Byrd, Robert C. Johnston Stennis Cannon Long Symington students or teachers (or for the purchase of some very good features in this amend­ Chiles Magnuson Taft equipment for such transportation) In order ment that could alleviate some of the Church MansI1eld Talmadge to carry out a plan of racial desegregation hardships in busine. For that reason, I Cook Mathias Thurmond of any school or school system, except on urge every Senator who believes that Curtis McClellan Tower the express written voluntary request of something constl'uctive should be done to Dole McClure Young appropriate local school officials. No such DominicI;; McGee funds shall be made available for transporta­ bring some help to this field to vote for Eagleton McGovern tion when the time or distance Is so great as the Bayh amendment. NAYS-33 to risk the health of the children or signifi­ The PRESIDING OFFICER. Who Abourezk Mondale cantly Impinge on the educational process of yidds time? Aiken ~~~tg Moss such chlldren, or where the educational op­ Mr. BAYH. Mr. President, I have noth­ Allen Hatfield Packwood portunities available at the school to which Bellmon Hathaway Pell ing further to say. As Senators may Bennett Hollings Ribicoff It Is proposed that any such student be know, I have made a rather lengthy Brock Hughes Scott, Hugh transported will be substantially Inferior to statement explaining my position in Brooke Humphrey Stafford those opportunities offered at the school to opposition to the Gurney amendment. I Case Jackson Stevens which such student would otherwise be as­ Clark Javits Steven£on signed under a nondiscrimInatory system of feel that this is an crucially important Cotton McIntyre Tunney school assignments based on geographic area in \vhich equity should prevail. We Cranston Metcalf Weicker zones established without discrimination on can do that without injuring the quality Domenici Metzenbaum Wllliams account of race, religion, color, or national of equal education by adopting my PRESENT AND GIVING A LIVE PAIR, AS origin. amendment. PREVIOUSLY RECORDED-l Mr. NELSON. Mr. President, will the :Mr. President, I ask for the yeas and 1"luskie, against nays. NOT VOTING-7 Senator yield for a question? The yeas and nays were ordered. Mr. BAYH. Mr. President, I yield to Fulbright Inouye Percy The PRESIDING OFFICER. Dees the Goldwater Kennedy the Senator from \iVisconsin for a Senator yield back his time? Gravel, Monto,'a question. Mr. BAYH. Mr. President, I yield back So Mr. BAYH'S amendment was agreed Mr. NELSON. Mr. President, do I cor­ the remainder of my time. rectly understand that the Senator's to. Mr. PELL. Mr. President, I yield back Mr. BAYH. Mr. President, I move that proposal is, in fact, the language of the the remainder of my time. amendment which we voted on prior to the vote by which the amendment was The PRESIDING OFFICER. All time agreed to be reconsidered. the Gurney amendment plus the Scott­ has been yielded back. The question is on Mansfield amendment? Mr. EAGLETON. Mr. President, I move agreeing to the amendment of the Sena­ to lay that motion on the table. Mr. BAYH. That is accurate. tor from Indiana. On this question the yeas and nays have been ordered, and The motion to lay on the table was Mr. NELSON. We have adopted that agreed to. amendment on previous occasions. the clerk will call the roll. The second assistant legislative clerk AMENDMENT NO. 1026 Mr. BAYH. That is accurate. proceeded to call the roll, Mr. McGOVERN. Mr; President, I call SEVERAL SENATORS. Vote. Vote. Mr. MUSKIE (after having voted in up my amendment No. 1026 and ask that Mr. JAVITS. Mr. President, I yield my- the negative). Mr. President, on this vote it be stated. Mcty 15, 197.} CONGRESSIONAL RECORD - SENATE 14927 The PRESIDING OFFICER (Mr. tel'mined for any fiscal year under subsection 1I.IfANSFIELD, METCALF, MONTOYA, RIBICOFF, HA'IHAWAY). The amendment w111 be (a) amounts to at least 25 per centum of the TUNNEY, and YOUNG. stated. total number of children who were in aver­ It is an amendment that has been age daily attendance at the schools of such cleared on both sides of the aisle. I have The assistant legislative clerk read as agency during such fiscal year and for whom follows: such agency provided free public education, discussed it with the distinguished man­ ager of the bill, the Senator from Rhode On page 10, between lines 4 and 5, insert shall be entitled to 100 per cenium of the the follov.-ing new section: amounts to Which such agency would be Island (Mr. PELL) , and with the distin­ otherwise entitled under this Act. The provi­ guished Senator from New York (Mr. ";;:NTITLEMENT TO PAYMENTS WITH P.ESPECT TO sions of section 5 (c) shall not apply to any HIGH CONCENTRATIONS OF CHILDREN WHO JAVITS). It merely provides that in those local educational agency to which this sub­ school agencies-- RESIDE ON OR WHOSE PARENTS ARE EMPLOYED section applies:. ON FEDERAL PROPERTY Mr. President, I ask unanimous con­ "(b) The amendment made by thi.5 section "SEC. 203. (a) Section 3 of tbe Act of Sep­ Dent that certain tables prepared by the shall be effective on and after July I, 1974:'. tember 30, 1950, (Publ1c Law 874, Eighty-first Office of Education reflecting the effect Congress) is amended by adding at the end On page 10, line 8, strike out "SEC. 203" and of my amendment on 229 school districts thereof the following new subsection: insert in lieu thereof "SEC. 204". in 34 States be printed at the conclu­ "'(f) Notwithstanding any other provision Mr. McGOVERN. Mr. President, this sion of my remarks. of this Act (including the provisions of sec­ amendment is cosponsored by Senators There being no objection, the tables tion 5(c), a local educational agency \\-ith ABOUREZK, BURDICK, CURTIS, DOMENICI, were ordered to be printed in the RECORD, respect to which the number of children de- GRAVEL, HRUSKA, HUMPHREY, MAGNUSON, as follows:

NUMBER OF SCHOOL DISTRICTS AT VARYING LEVELS OF CATEGORY A IMPACT lOll FISCAL YEAR 1973

Percenl of impaction Percent of impaction ---_:--_------25 to 30 to 40 to 50 to 60 to 70 to 80 to 90 to Total 25 10 30 to 40 to 50 to 60 io 70 to 80 to 90 to Total Stale 29 39 49 59 69 79 89 100 number Stale 29 39 49 59 69 79 89 100 "umber

Alaska __ c_____ 2 2 1 _. .•• 1 . ._ 6 New Hamp· Arizona __ .____ 4 2 2 6 1 3 3 17 33 shire..__ . __ • 1 . __ . __ ._.. .•__ ._. •. •.. • ._ 1 Arkansas __ ._. Coo _. __ •• __ • ._. _ ••c 1 __ ._._. __ . '_ 1 New Jersey • 1 1 2 ••••••• 1 . .•••••_._ 5 Calitornia • 3 5 1 2 2 4 1 3 21 New Mexico.__ 2 1 3 2 ••.• 2 ••••_.__ 10 Colorado c 1 1 1 c.__ • • _ 3 New York_ ••__ 1 • oo_. 1 .• ._. • __ ••• •••_•••__ • 2 Connecticu!.._.__ ._.__ c 1 Coo _. ••••_._••••_._•• ••_ 1 North Oakota_. 3 3 2 1 2 2 _._••__ • 2 15 Idaho.,••• • c.____ 1 ._. ._.,••••••••_. _ 1 Ohio. • __ • 2 __ .•. .••. ••_._••••••••_._ 2 lIIinois .____ 1 2 ,_, • 3 _•• ._•••_•• •.• 6 Oklahoma.____ 5 2 5 2 3 1 ._._._•••_••••_. 18 Indiana_ •• • ., 1 ••. • _._ •••••_••_._c••_. • 1 Oregon ._._..... 4 _._._. __ ._..•__ .. • ._.• ••__ ••_ 1 5 Kansas•• . __ ._._. ._.___ 2 • ••_._••_••••_._ •• ._. 1 Maine_••. •••_. ._._, 1 ._._.__ ._••••••c 1 _. _ ~ ~~~f: ~~I~~t~·_-~ ~ ~ ::::::::::::::::-·---T·----T::::::::-····-Z- ~ Massachusetts______1 c_ 1 ••_._ ••c _ 2 Texas_•. • 4 ._.._._._•• ... ._. ••••••__ ._ 4 8 Michigan ••__• ,_cc_••, 1 •••_._.. 1 1 __ • _ 3 Utah. __ .• __ ._ .. _._ ..__ 1 1 •• __ •••••• •. .•__ ._••••_••_. 2 Minnesota • __ • _. __ •_••_••••••_,._._•••••_. __ • __ . _. _••__ ••_•.•. • 3 3 Virginia. __ .•_. 1 _._ •.•._. __ . __ .•.. ••_•• •••• • __ ._...... 1 Missour!..•• 1 ._._._•••__ •••_. 1 1 ._._._._._•._. _ 3 Washington._.. 2 6 1 1 2 1 3 ••••__ •• 16 Montana ••• 1 6 6 2 4 7 2 3 31 Wisconsin __ . ._ ••__ ._._.. 1 ••__ ••_., .••• ••••_. 1 Nebraska•••• ••••__ , 1 •••••__ ••••••_. __ ._. • 2 •. c 1 g ~ Nevada•••••• •• __ • __ c 1 • •• • __ • __ ._ •• .._•• _.• _._ i Wyomin _••. --_-_--_.-_.:::.=_.-_-_-._--_-._-_--_-_.._..:.::.=.:._-._.._--__2 1 _.-_--_--_-.__ Total number. 36 43 33 22 19 27 12 37 229

DATA ON DISTRICTS WITH 25 PERCENT OR MORE CATEGORY 3A IMPACTION, FISCAL YEAR 1973

Cate· Cate· gory gory 3A 3A children children Total as Total as average Cale· percenl· average Cate­ percenl­ daily g~x age daily gory age attend· of Total attend· 3A of Toral State and school dislrict anca children total entitlement State and school district ance children total entillemenl

ALASKA Puerco E. S. O. No. i8'.••_••• .____ 582 300 51. 55 129,045 Young Sch. Oisl. No. 5'_.__ ._••__ • .______289 223 77.16 95,923 Alaska Oepl. of Ed••••-••_•••_._,._____ ._.___ 21,119 16,617 78.68 $24,727, 591 Rice S. O. No.2 ,. •• • ._ 1,015 903 88.97 388,425 Hoonah Public Schools '.___ • ____ ••_••••__ ._. 270 97 35.93 70,435 Sacaton E. S. O. No. 18'_.__• ••_.••..__ ..__ 802 762 95.01 327,774 King Cove City School OisL••••_••__ •••__ ._c 81 22 27.16 15,975 Apache Co. H. S. O. No. 9'•..__ ._•.•_. __ ._.. 767 200 26.08 86,030 Bristol Bay 80ro School Oisl.'__ ._••_. __ ••••_. 264 69 26.14 50,103 Fori Thomas Elem. S. O. No.7 ,. ••_.. 347 254 73.20 109,258 Dillingham City School Oisl.'._c••______••••• 316 101 31.96 73.340 Fort Thomas H. S. O. No.7 ,_•• .___ 117 79 67.52 33,981 Noma-_Beltz Reg. High SchooL_••_._.___ ._._. 315 135 42.86 98,028 Alpina S. D. No. 7._,_c._cc_. •••• 39 11 28.21 4,731 Monument Valley H. S. D. No. 5 1._._••_._____ 365 355 100.00 157,004 State tolaL.__ ••"._.______.•••••••, 22,365 17,041 ~ ••• w __ ~ __ 25,035,474 Navajo Compressor Stal. S. O. NO.5 '. •._.. 29 29 100.00 12,474 Horse Mesa Accom. Sch. & Unor. Terr.l_ •• 20 7 35.00 3,011 ARIZONA ------Siale totaL..,._.__ •.•.. __ ••_._ .._._ 26,161 19,864 ._._...... 8,544,499 Maricopa Co. Accommodation S. 0._••• _._._. 515 515 100.00 221,527 Indian Oasis S. O. No. 4'.•••___ •. ___ ••_••_._ 934 934 100.00 401,760 ARKANSAS Fort Huachuca Accommodation Schools , ___••• 1,847 1,847 100.00 794,487 MI. Lemmon Accommodation S. O__ c.c_••••_, 103 46 44.66 19,786 Gosnell S. D. No. 6 ._.•._... _.. I. 864 I. 205 64.65 518,150 Yuma Co. S. O. No. 27'~cc_·,.c_ ••••••_•••__ , 1,143 622 54.42 267,553 litchfield S. O. No. 79 •.c•••c______••••••__ c 1,124 309 27.49 132,916 CALIFORNIA Northern Yuma H. S. 0.1_ .,_c__ • ___ ••____ ••, 556 184 33.09 79,147 Grand Canyon S. O. NO.4 and 3••_._.___ • __ •• 178 127 71. 35 54,629 Two Rock U.S.O.l. .• ... _. __ . __ .•._, 151 88 58.28 37,853 Tuba City E. S. O. No. 151 ••c._.____ • __ •••_. 1,134 1,107 97.62 476, 176 Reservation S.O.l ••_. ._._.__ . __ .•__ ._._. 14 10 71. 43 4,301 Grand Canyon H. S. O.l __ .c••___ ._•••_c ____ , 76 65 85.53 27,959 296 117 39.53 50.327 Tuba City H. S. 0.1 ••_. ____ ••_. ____ • __ •••__ • 371 361 97.30 155,284 ~~ffl~;~~e~k-S.D.-_-.:::-.__.:::::~ ~: ~ :~: ~:: ~ ~:: 26 10 38.46 4,301 Union E. S. O. No. 62'_____•••_._. __ •••••__ , 116 58 50.00 24,948 Alpine Co. Unif. S_O._...••_. __ •. •• 109 32 29.36 15,789 Peach Springs S. O. No. 8'••__ ••__ •••_••__ ._ 115 105 91.30 45,165 Center Jt. S.O .•.• .•..• ••. __ 1.160 673 58.02 289,490 Valentine S. 0, No. 22__••_._._•••_._._._._._ 35 18 51.43 7,742 Whealland S_D •••_.__ .. •••• ••...__ ._. 2,542 2,151 84.62 925,252 Moccasin S.D. No. L.___ ..,.___ ....___ .._.. 20 10 50.00 4,301 Whealland U.H_S.O. __ oo _••••••.•_._.•• •• 862 591 68. 56 423,912 2,734 702 25.68 301,965 Travis Unif. S.O_.•_•.._•._._._•. •..•_. __ 3.420 3,326 97.25 1,641,081 g~~~~\;~OBU~~ ~o'._Nii.-5::=:::=:=:::::::::: 20 20 100.00 8,603 Monterey Peninsula Unif. S.O.•• . ._. 17,799 5,166 29.02 2,548.956 Page High Sch. Oist. No. 8__ ••___ ••c_._••__ •• 563 281 49.91 120.872 Alwaler S_O_ ..._. ••••'_'_'" _. .. _ 3,400 1,077 31.68 463.271 Page Elem. Sch. Oisl. No. 8_._••__ ••••••••_._ 1,446 835 57.75 359,175 Chawanakee E.S.O ._ • ••__ •••••••.••_. 40 40 100.00 17,206 Window Rock S.D. No. 8'_._••_.__ .••_•••_•• 2,156 2,084 96.66 896.432 Big Creek Elementary S.O • __ ••_•••_._. _ 185 126 68.11 54,i98 E.S.O. No.2 ,••c-,o,.,_o-_,. ____._••••• ___ •••_ 988 987 99.90 424,558 Ocean View S.O. ._••._._._•• • __ • 2.142 660 30.81 283,899 Keams Canyon E.S.O. No. 25 ' ••••••••_••••__ • 361 361 100.00 155,284 Adelanto S.O __•..• ••_'.'__ "_._••_••_•.• 1,8M 1. 452 77.90 624.577 McNary Elem. S.D. flo. 23_.__ ••••_._.__ ._._. 101 87 85.14 37,423 China LakeJt. S.O_.__ .•.•_._ ••c._•••__ •.__ • 2,500 2,387 95.48 1,026,768 Alchesay H.S.O. NO.2 '._••_._c.______._••_ 242 240 99_17 103,236 3,894 2,763 70.96 1,363,291 Ganado S.D. No. 19 ,_•••___••_._••c._.;.•••_, I,m 1,209 93. 43 520.051 2,181 1,625 94.51 698,993 Kayenta E.S.O. No. 27 '._.__• __ • __ ••____•__ • r:~I~~~~l~ :::~======::=::::::::::::: 814 814 100.00 350,142 __ 483 205 42.44 88,180 Chmle C.S.O. No. 24 '••••__ ••__ ••___ ._••___ • 2,803 2,803 100.00 1,205,710 San PasQual Vaney Unit. S.O.'_._•••••••••_., 671 245 36.46 120,885 14928 CONGRESSIONAL RECORD-SENATE May 15, 1974

Cate· Cale· gory gory 3A 3A children children Total as i Tolal average Cate­ i as percent­ average Cale- percenl· daily gory age gory allend­ 3A of Total i daily age Siale and school dislritl ance children tolal allend· 3A of Total entillement i SI_a_te_a_n_d_SC_h_OO_I_d_iS_Ir_ic_t ance children talaI entitlement_ Lompoc Unif. 5.D . . _. _. ... _ 12,167 3,113 25.59 $1,535,985 1,091 333 30.52 $149,510 ------,03 State totaL _ 55,907 25,857 .. _ 12,218,525 171 8-1.24 130,079 i:i:~t~~r:~~~~~~~~~~~~~~~~~~~~:~~~:~~~~ 136 62 45.59 29,750 COLORADO 46 20 43.48 19,174 Poplar Pub. Grade S. O. No. 9' __ 593 304 51.26 151,601 EI Paso Co. S. D. No_ 8. . _ 3,196 1,876 58.70 806,961 ~.oblaN~.· ~i .~'. N~: ~~ ~:::: ::~::::~:~ 241 82 34.02 58,675 9. :::::: 44 3~ 79.55 25,469 Ignacio Uniled S.D. No. II JI.' _ 918 443 48.26 190,556 Box Elder H. S. D. No. GI .. _ 86 Air Academy S.D. No. 2.. . _ 4,466 1,700 38.07 789,123 H. S. D. No.2 ' .. .. _ 66 76.74 71,677 140 92 65.71 73.481 Brockton H. S. D. No. 55' ... _ 31 State 10IaL _ 8,580 4,019 __ .... __ 21 67.74 20,852 1,786.640 55 25 45.45 25.100 ~~~r ~.' g. ~~.. :7'._-:::::::::::::::::::::::: 257 247 CONNECTICUT 96.11 170,247 Stale total...... 8,636 4,580 ______Town 01 Groton Bd. of Ed _ 8,722 2,769 31. 75 1,710,632 2,792,432 NEBRASKA IDAHO S. D. No. 193 __ 3.925 1,725 43.95 742,008 Winnebago S. D. No. 17' .. __ .. __ 307 231 75.24 149,119 -----.. - ..=== ~a~~~;sDiJ~~: ~~> 364 285 78.30 183,978 ILLINOIS :::::::::::::::::::::::: 48 46 95.83 29,694 S. D. of the City of Bellevue ...... __ 10,170 3,932 H,ghwood Highland Park S. D. No. 111 1.416 428 30.23 311,160 38.66 2,538,263 North Chicago S. D. No. 64 .. _ 3,451 1,965 56.94 975,249 State total.. .. __ 10,889 4,494 _..____ • __ Community H. S. D. No. 123 .. _ 1,304 392 30.06 419,612 2,901,056 Rantoul City S. D. No. 137 .. __ 3,481 1,770 50.85 926,595 NEVADA Mineral Co. S. 0 .. _ Rantoul Twp. H. S. D. No 193_ . .. __ 1,537 421 27.39 368,484 1,674 697 41.64 299,814 Mascoutah Comm. Unil. S. D. No. 19 3, 511 1,905 54.26 945, 470 ------_.------NEW HAMPSHIRE Stale total. _ 14,700 6, 881 _....__ __ _ 3,946, 571 City of Porlsmouth Bd. of Ed_ .. _ 5,332 1,496 28.06 891,765 INDIANA NEW JERSEY Maconaquah Sch. Corp _ 3,788 1,375 36.30 658,460 Bora. of Lakehursl Bd. of Ed. .. __ 791 259 32.74 206,047 KANSAS Boro. of Eatonlown Bd. of Ed ... .. __ 2,346 1,119 47.70 739,558 Uni!. S.D. No. 475 __ . . __ .. __ . 6,412 2,719 42.40 1,270,316 Bd. of Ed. N. Hanover Twp _ 2,037 1,606 78.84 911,629 Uni!. S.D. No. 437 .. . .. _ 3,127 1,397 44.68 652,678 No. Burlington Co. Reg. S. 0 _ 2,239 1,097 49.00 953,490 Unil. S.D. No. 27 _ 2,368 2,366 99.92 1,105,395 Pemberton Twp. Bd. Ed.. . .. 7,277 2,041 ._------:--- 28.05 1,623,717 6,482 _ State Total. .. 11,907 3, L28, 390 Slate total.. .. __ .14,690 6,122 .•_____ ._. 4,434,443 MAINE NEW MEXICO Limeslone School Depl. _ 2,400 1,699 70.79 7SD,824 Dulce J. S. D. No. 21 1_• __ .. .. _ 595 527 88.57 226,689 Town of Winter Harbor Sch. Comm __ .. .. 193 93 48.19 40,003 Jemez Springs Mun. S. D. No. 311. __ 612 265 43.30 113,989 ------Bernalillo Mun. S. D. No. 11 .. ..__ 2,772 1,179 42.53 507,146 State Total. ._ 2,593 1,792 ____ ...... 770,828 Cuba J. S. D. No. 2 1 .. ... __ 1,080 519 48.06 223, 247 ----~._-- Alamogordo Mun. S. D. No. 1. .. _ 8,875 2,334 26.30 1,003,970 MASSACHUSETTS Tularosa Municipal S. D. No. 41 .. __ 1,484 464 31.27 199,589 I. S. D. No. 22' __ 4,479 3,610 80.60 1,552,841 Town of AyerSch. Committee __ . , _ 3,413 2,030 59.48 1,540,973 Gallup McKinley Co. Bd. of Ed.. .. __ 12,177 6,791 55.77 2,921,148 Bourne Sch. Committee .. ... __ 3,230 1,169 36.19 1,046,839 Bloomfield Mun. S. D. No. 6' ._ 1,909 567 29.70 243,895 ------Magdalena Mun. S. D. No. 121 ---- __ .. __ 609 312 51. 23 134,206 State Tolal _ 6,643 3, 199 ______2,587,812 Stale TotaL. .... __ 34,592 16,568 ___ . ______7,126,725 MICHIGAN NEW YORK Oscoda Area Schools... .. 4,121 1,717 41.66 834,530 Rudyard Twp. S.D. No. 11. __ ... _. . 2,221 1,593 71.72 774,261 U. F. S. D. No. 14, Town of Fire Island. __ 78 23 29.49 50,487 Forsyth S.D. No. 7_ .. .. 3,314 2,130 64.27 ._1,035,265 Central S. D. No.1, Town of Peru . __ 3,996 1,613 40.37 1,199,539 5,440 __ .. ______------Slate Total. _ 9,656 2,644,057 StaleTotaL . =~===,~==~;;;==~~=4,074 1,636 ______.... 1,250,027 MINNESOTA NORTH DAKOTA Redlake I.S.D. No. 38' .. _ 909 893 98.24 449,143 Riverdale Pub. S. D. No. 89 _ 268 160 59.70 84,465 I.S.D. No. 77' ...... _.. .. 135 135 100.00 67,899 New Town Pub. S. D. No. L _ 746 216 28.95 92,912 Unorg Territory S.D.' .. .. 92 92 100.00 46,272 lincoln S. D. No. 38 .. .. __ 152 61 40.13 26,239 Grand Forks Pub. S. D. No. 1...... __ 10,552 2,667 25.27 1,440,446 State lotal. -- -======1,136 1,120 ...___ . ___ 563,315 Minot Pub. S. D. No. 1... . __ 9,023 2,543 28.18 1,373,474 Solen Pub. S. D. No.3 1. . _ 346 213 61. 56 119,757 MISSOURI FI. Tolten S. D. No.3 , .. __ 31 31 100.00 13,334 FI. Yates Pub. S. D. No. 41 .. __ 369 286 77. 51 123,022 ~~~~:~s~r ~~d{~4~:_~·_~:~._::::::::::::::: ~: ~~g i~: ~g ~~: Twin Buttes S. D. No. 37 '... .. 79 62 78.48 26,669 U8r mCoulure S. D. No. 27 '...... 835 269 32.22 155,710 Waynesville Reorg. S. D. R. 6__ ...... 4,902 3,030 61.81 1,395,102 Ingebretson S. D. No. 281 .. . __ 115 74 64.35 31,831 ------Mandaree Pub. S. D. No. 36' _ 213 207 97.18 89,041 Staletotal...... 11,245 5,337. .._... 2,457,314 White Shield Pub. S. D. No. 85' ..... _ 197 77 39.09 33,121 Nekoma School Dislricl No. 36 •_ 120 52 43.33 22,367 MONTANA Oberon SO No. 16 .. _ 107 34 31. 78 14,625 JI. S. D. No. 8' • __ ...... _ 358 109 30.45 46,886 Stale totaL. .. 23,153 6,952 ______3,607,019 Browning E. S. D. No. 91 ._ 1,267 952 75.14 620,028 =~======~=~ H. S. D. No. 9 1 ... __ 378 236 62.43 198,320 OHIO Elmo E. S. D. No. 22 1 . . 33 24 72.73 13,814 Babb S. D. No. 8 1 __ 71 55 77. 46 31,295 Mad River Twp. Local S. D c ..__ 7,604 1,932 25.41 831,049 Hearl Bulle S. D. No. 11 . . 160 160 100.00 105,044 Hamilton Local Bd. 01 Ed .. . 3,324 902 27.14 387,995 Lakeside S. D. No. 3 .. _ 109 32 29.36 13, 764 --~:-=--- JI. H. S. O. NO. 8' .. , _ 121 40 33. 06 ~~: ~jg Stale totaL .. • . =,;;;,;;~=;;;~;;;;;;;;;==~~=10,928 2,834 ______1,219,045 Dixon S. D. NO. 9' ..._. _ 68 22 32.35 Gardiner S. D. No. 4' __ 102 46 45.10 42,923 OKLAHOMA S. D. No. 21. •• • __ 116 84 72. 41 49,649 Lame Deer S. D. No. 6 , ..__ ...._.... __ 304 258 84.87 125,496 Dahlonegah D. S. D. No. 29'. • __ 101 64 63.37 27,529 Glasgow E. S. D. No. 1. __ 1,415 443 31. 31 196,948 Bell D.S. D. No. 33' __ 223 125 56.05 53,768 Harlem E_ S. O. No. 12 1 • __ 392 170 43.37 81,108 Losl City D. S. D. No. 17 1 • 197 97 49.25 41,724 Harlem H. S. D. No. 12'••• __ 183 76 41. 53 59,461 Ry.l D. S. D. No.3 ' .. _ 66 45 68.18 19,356 Brockton S. D. No. 55' • __ 139 103 74.10 79,821 Skelly D. S. D. No. 1' ... •• 110 45 40.91 19,356 Box Elder E. S. D. No. 13'_. •_ 141 93 65.96 48,653 Rocky Mounlain Dep. S. D. No. 24 1 •••••__ 100 30 30.00 12,904 S. D. No. 2'...... • • • 50 49 98.00 29,918 Maryelta D. S. D. No. 22'__ •__ • .. 199 56 28.14 24,088 E. S. D. No. 27'__ ...... __ • __ .. 306 170 55.56 83,303 Wickliffe D. S. D. No. 35'_ .. 43 18 41.86 7,742 Footnote at end ot table, ~fay 15, 197ft. CONGRESSIONAL RECORD - SENATE 14929 DATA ON DISTRICTS WITH 25 PERCENT OR MORE CATEGORY 3A IMPACTION, FISCAL YEAR 1973-Continued

C.te· Cate· gory gory 3A 3A children children Total as Tela\ as average Cate· percent· average Cate· percent· dai~ gory age daily gory age atten • 3A of Tot.t attend· 3A of ToL'·! total entitlement Slate and school district ance children lotal entitlement State and school district ance children

1,283 95.83 $1,097.221 OKLAHOMA-Continued Randolph Field I. S. D __ . 1,344 Lackland I. S. D __ . 857 865 99.77 736,876 46 23 50.00 $9,893 United Cons. I. S. D . 2, I7t 596 27.45 256,369 Woll D. S. D. No. 13 c••••; ·; 1,521 1,421 93.43 1,210,521 Justice D. S. D. No. 54' ; ; 72 48 66.67 20,647 Ft. Sam Houston I.S.D . 115 46 40.00 19,786 Vamoosa D. S. D. No. 8' ;c•••••; 26,020 9,632 ...... 5,660,612 Broxton I. S. D. No. 68' c.c.c ;.c••••••c 159 65 40.8& 27,959 Stole totaL . - Carnegie I. S. D. No. 33'••0.;.cc••••c c 827 207 25.03 89,041 Boone D. S. D. No. 56 ' c c.c ; 67 48 71.64 20,647 UTAH 198 59 29.80 25,378 San Juan Co. S. 0 ; 2,494 1,176 47.15 505,856 lillie Axe D. S. D. No.7 ' •••••c ; 188 75 39.89 32,261 Stony Point D. S. D. No. 124.;.c•••c ; 62 16 25.81 7,232 Daggett S. 0 __ .. 438 130 29.68 55,919 Canton I. S. D. No. 15.••••c ; ; 538,117 Burns Flat I. S. D. No.7 ; 435 168 38.62 72,265 State totaL .. 2,682 1,251 ...... State 10taL ; ; 3,458 1,290 c•...... • 555,243 VIRGINIA 28.65 570,378 OREGON Co. Sch. Bd. 01 Prince George CO ...... c.....; 4,629 1,326

Hebo S. O. No. 13 L ..c ; 100 36 36.00 23,234 WASHINGTON Petersburg S. D. No. 14 C . 106 36 33.96 29,490 Jefferson Co. S. D. 5 91. .. 2,082 632 30.36 451,658 Oak Harbor S.D. No.2 L ; 5,128 1,646 32,10 735,729 Three lynx S. D. No. 123 .. 66 66 100.00 42,595 Diablo S.D. No. 15' ; 40 12 30.00 5,363 Bonneville S. D. No. 46 ; 72 24 33.33 19,660 Duponl Fort Lewis S.D. No.7 . 1,150 998 86.78 446.086 Cape Flattery S.D. No.4 I...c ; 622 218 35.05 97,441 State totaL c , 2,426 794 ...__ ..... 566,639 Anderson Island S.D. No. 24 ; 43 36 83.72 16,091 Taholah S.D. No. 77' . 145 105 72. 41 46,932 RHODE ISLAND Queets Clearwater S.D. No.2'•.; .. 79 30 37.97 19,643 Mill A. S. D. No. 3L . 90 30 33.33 13,409 Town of Middletown Sch. Comm .. 4,255 1,402 32.95 861,332 Mt. Adams S. O. No.2 9' . 878 427 48.63 190,860 Town 01 N. Kingstown Sch. Depl. .. 6,555 1,832 27.95 1,098,851 Medical Lake S. O. No. 326 . 2,334 1,416 60.67 632,923 Inchelium S. D. No.7' . 179 64 35.75 28,606 State totaL .. 10,810 3,234 ...... c.. 1,960,184 Nespelem S. D. No. 14 ' . 165 93 56.36 41.569 Wellpinit S. D. No. 49' .. 177 154 87.01 68,834 SOUTH DAKOTA Keller S. D. No.3' c .. 30 19 63.33 8,492 Columbia S. D. No.2 6 . 214 57 26.64 25,477 Todd Co. I. S. D.' c . 1,784 1,213 67.99 $638,790 Clover Park S. D. No.4 . 13,153 3,364 25.58 1,503,640 Douglas I. S. D. No.3 . 3,158 2,421 76.66 1,274,947 Shannon Co. I. S. D. No. I' . 1,448 1,325 91. 51 697,771 Slate totaL .. 24,427 8,669 ...... 3,881,103 Eagle BuUe I. S. D. No.3' . 858 594 69.23 312,812 White River I. S. D. No. 29 1 .. 424 148 34.91 77,939 WiSCONSIN Mclaughlin I. S. D. No. 21 . 619 169 27.30 88,998 Smee I. S. D. No. 41 .. 189 171 90.48 90,052 Flambeau S. D. No. II ; 369 181 49.05 108,203 C. S. D. No.3' .. 98 37 37.76 19,484 WYOMING State Total. , 8,578 6,078 ...... 3, 2CO, 796 S.D. No. 14' __ ; 344 270 78.49 $297,972 Ft. Washakie C.S.D. No. 21 1...... 229 203 88.65 224,030 TEXAS S.D. No. 38'...... 311 238 76.53 251,466 Del Valle I. S. D. No. 9Le ; 3,916 1,001 25.56 430,580 State totaL c...... 884 711 773, 468 Killeen I. S. D .. 13,215 3,703 28.02 1,592,845 Flour Bluff I. S. D . 2,972 744 25.03 320,031 National totals ; 387,443 182,651 109,549,761 San Vincente C. S. D. No.2 .. 14 14 100.00 16,166 Districts on this Iisting.•__ ; 229 .

I American Indian school districts. Mr. DOMINICK. Mr. President, would Mr. JAVITS. If the Senator from all cost of the program in any way. It the distinguished Senator from South South Dakota will yield, nonetheless, I merely provides for a fair and more fea­ Dakota be nice enough to add my name would hope that the Senator wlll give sible allocation of funds. as a cosponsor of his amendment? us an explanation, for the record. Mr. YOUNG. Mr. President, by way of Mr. McGOVERN. I would be delighted Mr. McGOVERN. Yes, I was planning further explanation, we have two large to do so. Mr. President, I ask unanimous to do that. military bases in North Dakota, at Minot consent that the name of the Senator What the amendment does, in effect, and Grand Forks. The school districts from Colorado (Mr. DoMINICK) be added ls to provide in the case of those school operate.;he schools on the bases, as a cosponsor of the pending amend­ agencies where 25 percent of the chil­ each of them about 18 miles from the ment. dren In average daily attendance live on cities. These schools cannot operate at The PRESIDING OFFICER. Without a Federal installation, that that agency less than cost which is what they would objection, it is so ordered. would be ent1tled to 100 percent of the be doing if they received less than 100 Mr. YOUNG. Mr. President, I would amount authorized ur.der Public Law 874, percent of entitlement. They have served also like to be added as a cosponsor of It relates to the so-called class A section notice on the base that unless they re­ the amendment. It ls similar to the pro­ under Publ1c Law 874 and is designed to ceive 100 percent of entitlement, they vision we on the Appropriations Com­ could no longer operate the school. This take care of school districts In a high applies to both the Minot and Grand mittee have been including in the Labor­ impact area where a high percentage of Forks military bases. HEW appropriation bill, for the past four parents reside on Federal property or on years, to take care of the same problem. a Federaltnstallation. Mr. CHURCH. Mr. President, if the Mr. McGOVERN. The Senator Is cor­ Without this kind of measure, there Senator from South Dakota will yield, rect. are a number of schools, inclUding an after listening to an explanation of the Mr. MANSFIELD. That ls what it is important one in my state which has amendment, I should like to be a cospon­ SOl' of the Senator's amendment. based on,ls it not? 3,300 students in residence, which would have to close. This ls a measure that the Mr. McGOVERN. I would be very glad Mr. McGOVERN. Yes. The senator is Senate adopted on a I-year basis last to do so. Mr. President, I ask unanimous correct. I would advise the Senator from year and I am very hopeful that the consent that the name of the senator South Dakota that hls name is already Senate w1ll accept it this year as a pro­ from Idaho (Mr. CHURCH) be added as a on the 11st of cospOnsors. vision inthe pencUng bUl. cospOnsor of this amendment. Mr. YOUNG. I thanktheSenator from I know of no real objection to the The PRESIDING OFFICER. Without South Dakota. amendment. It does not add to the over· objection, itis so ordered. 14930 CONGRESSIONAL RECORD-SENATE May 15, 1974 Mr. COTTON. Mr. President, will the mean the ;Jortion of the cost of a young­ services) would be in a different category. Senator from South Dakota add my ster's education which is contributed by Schools providing free public education name as a cosponsor as well? the local entity, as opposed to contribu­ to nonmilitary "A" children would be en­ l\1r. McGOVERN. I shall be happy to tion at the State level. Schools have re­ titled to payments equaling 90 percent do so. l\1r. President, I ask unanimous ceived payments for "Eu children at 50 of the local contribution rate. consent that the name of the Senator percent of the local contribution rate. The committee distinguished between from New Hampshire (Mr. COTTON) be This rather simplistic theory has worked military and civilian "AU children be­ added as a cosponsor of this amendment. quite well during the last 24 years and cause civilian Federal employees do con­ The PRESIDING OFFICER. Without has not been altered substantially dur­ tribute something to the economy of an objection, it is so ordered. ing the life of Public Law 874. However, area in the way of sales and transfer Mr. DOLE. Mr. President, will the Sen­ during the last 6 years there has been less taxes. as well as licenses, and therefore ator yield? congressional support for the impact aid have some financial benefit to the com­ Mr. McGOVERN. I yield. program. which has resulted in a smaller munity in which they reside. Military Mr. DOLE. I think this amendment percentage of the entitlements being personnel usually have access to military cove:'~ the problem that some of our funded. For example, this year, payments exchanges and pay almost no sales tax. States, including Kansas, North Dakota, with respect to "E" children are down to It is almost impossible to discern any and South Dakota, I believe, experienced 63 percent of entitlement. tax benefit to a community which would last year. It was taken care of then, but The last two administrations have ap­ contribute to the education of military only for this year. proached the Congress urging the reform children. Mr. McGOVERN. That is correct. of the impact aid program. Legislation The committee, looking at the "B" Mr. DOLE. This bill ext€nds that au­ was introduced by this administration child, fOUIld four types of distinguishable thority, I think, and this amendment will which was designed to reform the impact Federal connection: further preclude the possibility of sub­ aid program; analysis of that legislation Military "EU children; stantial reductions in aid to the heav1ly indicated that the administration was Civilian "E" children who live in the impacted areas, I support the amend­ proposing to kill the impacted areas pro­ county in which the school district is ment, therefore, and would be pleased gram rather than to reform it. located; to join as a cosponsor. The committee also studied many of Civilian "E" children who live in the Mr. McGOVERN. Mr. President, I ask the reports made on impact aid over the same State but in a different county from unanimous consent that the name of the past decade and came to the conclusion that in which the school district is lo­ Senator from Kansas be added as a co­ that the simplistic approach of having cated; and sponsor of the amendment. categories "AU and "E" children classi­ Civilian "B" children who live in The PRESIDING OFFICER. Without fied in the authorizing legislation and another State than the one in which the objection, it is so ordered. having an appropriation situation that school district is located. Mr. MANSFIELD. The same reasoning varied from the terms of the authorizing In examining the four distinguishable areas program was established in 1950. It legislation resulted in a situation which types of Federal connection, our rationale would be a terrible burden on the school made funding levels completely unpre­ with respect to the financial contribution districts. I think it is a good amendment. dictable and caused local educational under the "AU category was made appli­ Mr. DOLE. I, too, have in mind at least agencies to have continuous budgetary cable to the "B" category. As a result, two particular areas in Kansas-those of problems. military "B" children entitle a school Fort Leavenworth and Junction City, The committee recognized that chil­ district to 50 percent of the local con­ both of which are greater than 25 per­ dren of military employees have a tribution rate, and civilian "B" children cent impacted. greater adverse impact on local school entitle a school district to 45 percent of EXPLANATION OF THE REVISION OF THE IM­ districts and their ability to finance the local contribution rate. These figures PACTED AREAS PROGRJ\M IN S. 1539 themselves than do children of civilian are precisely one-half of the equivalent Mr. PELL. Mr. President, title IT of Federal employees. Further, it was clear "A" category entitlement rate. the bill contains amendments to Public that if the Federal property on which The following chart graphically illus­ Law 874, 81st Congress. These amend­ parents are employed is outside the trates the entitlement rates: ments reflect the view of the Committee school district, the children's adverse fi­ ENTITLEMENTS UNDER PUBLIC LAW 874, 81ST CON G., AS on Labor and Public Welfare that some nancial impact on that school district PROPOSED TO BE AMENDED IN S. 1539, COMPARED WITH reform of the impacted areas program is lIttle different from the situation EXISTING LAW was desirable. which would arise if the parents were The basic concept of the impacted employed on private property. Local It For these reasons the committee Percent- contribu- areas program was established in 1950. age of tion rate was recognized that Federal activity in adopted amendments which made more local under any school district can have an adverse precise distinctions about the Federal Category of federally contribu- existing effect on that area by first, removing connection and designed a schedUle of conoected children tion rale law valuable property from the tax rolls and, payments which is intended to establish a set of priorities for funding when ap­ Districts with more than 25 percent "A" second. bringing people into the area children _ 100 100 who would not be there but for the Fed­ propriations are insufficient to fund fully Military "A" children and children liv- eral activity, thus putting a burden on all of the entitlements. Ci~nFa~n,,~,1i~gi:~~~~:: ::~ 100 1100 The amendments adopted by the com­ :::::::::::: 90 1100 the local schools, a burden that no taxes Military "8" children ,c _ 50 ' 50 were being contributed to meet. mittee would divide "AU children into Civilian "B" child ren with parent work- two categories: 45 250 The youngsters who attended the Ci~iJ~ a~n, P~?,P:h1rd ~~nC~~mYpa reniwiirk:" school were broken down into categories, The first category would be military ing on property out of the county; but "AU children; that is, children living on in Slate -' -'__ C " 30 , 50 depending upon the type of Federal con­ Civilian "8" children with parent work- nection they had. Children who live with military bases with a parent who is in ing on property in another State " 0 , 50 parents who both reside and work on the armed services. Under the bill the school districts providing a free public Federal property are classified as "AU 1 Under appropriations acts the "A" category is limited to children under section 3(a) of the act. education to military "A" children would 90 percent of the local contribution rate. ' be entitled to a payment of 100 percent 2 Under appropriations acts the "B" category is limited in Children whose parents live on Federal such a manner as to result in 31.5 percent of the local contribu­ property but do not work there and of the local contribution rate; in addi­ tion rate. those who work on Federal property but tion, all children residing on Indian lands live somewhere else are classified as "Bu would be treated the same as military The committee also found that chil­ children under section 3(b)' (Thus the 4'A's;" dren who go to school in a school dls--· usage of "AU and "E" children). "A" children who are not the children trict of one county but who are the chil­ With respect to "AU children, the of military personnel (that is, they live dren of parents who work in another Federal Government authorized payment on Federal property with a parent who county have less adverse financial impact of 100 percent of the local district's cost is employed on Federal property. but on that school district than those who of that child's education. By that I neither parent is a member of the armed live and reside in the same county as 1I1ay 15, 1974 CONGRESSIONAL RECORD-SENATE 14931 the school district. Therefore, we recom­ In order to carry out these policies, shall not be phased out of the program, mend that the payment rate for children section 5{c) of Public Law 874 sets out a and, by revising the program as proposed of persons who work on Federal property schedule of payments with three priority by the committee, we hope to state that in a county other than that in which the schedules. All of the sums appropriated message clearly so that the administra­ school district is located be set at two­ for any fiscal year would be divided into tion and the school districts around the thirds the rate of civilian "B" chUdl'en, tlnee parts. Part I would be allocated in country understand precisely the position with the result that the Federal Govern­ such a manner that each school district that the Congress has decided upon with ment entitles a school district to 30 per­ would receive 25 percent of its entitle­ respect to "B" children under the im­ cent of the local contribution rate for ment under Public Law 874. Part 2 would pacted areas program. "B" children whose parents work out­ allocate 60 percent of each entitlement Mr. President, we have discussed this side the county in which they attend rate among school districts, depending amendment. It has merit. but I think the school. upon the types of "A" children and "B" Senate should know exactly what we are With respect to children whose parents children in attendance at the schools of doing. We are taking the total impact work on Federal property in a state oth­ the local educational agency. These al­ funds and segregating one-sixth of those er than the state where their youngsters locations would be in addition to the funds .and giving priority to the areas attend school, the committee found that basic 25 percent allocated under part 1. where the greatest concentrations of sec­ whether or not there was a Federal con­ The third part of the allocation con­ tion A's are located. This means that nection made no difference as to the trols fm1ds remaining after the second one-sixth of the money will be with­ ability of a school district to provide edu­ allocation; that is. after the allocations drawn and not be available to the States cation for that child. under part 1 and part 2 are finIshed, for the rest of the section A's and the Therefore, we recommend that Fed­ funds remaining are allocated by the section B's. Personally, I have some eral property in another state not be the third part in proportion to the unsatis­ doubts about this approach, but it is basis for determining Federal connection fied entitlements of all eligible school obviously the will of the majority in the with respect to any school district. This districts-in other words, there is a pro Senate, and for that reason I would be approach, the committee realizes, will rata allocation. willing to accept the amendment. mean a loss of revenue to such counties The following table shows this sched­ Mr. BEALL. Mr. President, will the as Montgomery County and Fairfax ule of payments: Senator yield? County, For many years we have been Mr. PELL. I yield. hearing the impacted areas program SCHEDULE OF PAYMENTS UNDER SEC. 5(0) OF PUBLIC LAW Mr. BEALL. Mr. President, do I cor­ criticized because it makes substantial 874. 81ST CONG .. AS PROPOSED TO BE AMENDED IN S. 1539, rectly understand that the Senator is payments to Fairfax and Montgomery AS AMENDED BY THE BEALL AMENDMENT saying that if this amendment is Counties. By requiring that the Federal ------adopted, of the total impact in aid pot, property must be in the same state as peJfs~~it:~fe~1~~~~~e~~~~ what percentage will be pulled out and the school district, we are able to reduce cation- given to-- ~;~~~~\~3~~~~~~~IY payments to wealthy suburban school 1st 2d 3d Mr. PELL. Approximately one-sixth of districts which have been a vulnerable the total money of impact aid will be spot for the impacted areas program. Districts with more lhan 25-percent used to satisfy this amendment. These changes, according t Mr. BEALL. It will come first, before estimates available, reduce the total of Military A children and children any other consideration? the entitlements for the impacted areas living on Indian lands .....•••_._ 25 60 <,> Civilian Achildren •...... ••_.•__ 25 54 <,> Mr. PELL. It will come first, before program by about $90 million. At the Military B children....__ .•••._.... 25 32 <,> any other consideration, and the other same time, these reductions are not un­ Civilian B children wilh parent working on property in county..•• 25 30 <,> five-sixths will have to cover what is duly harsh on any one school district. Civilian B children wilh parent being covered now by six-sixths, includ­ We realize that the revision is not a per­ working on property out of the county. but in State•.•.•.....•.. 25 28 {I> ing these areas. fect instrUUlent but believe it is one Mr. BEALL. Mr. President, if I under­ which can serve for improved thinking stand correctly what we are doing, I about the impacted areas program in 1 Percentage lor which prevision is made in the appropriations would like the opportunity to study this future years. act. matter in a little more depth, because it Another aspect of the impacted areas I realize that the schedule of pay- seems to me, if I understand this amend­ program never adequately dealt with in ments is much more complex than the ment correctly, that we are saying to authorizing legislation is the schedule existing authorizing legislation. However, those areas that have a partiCUlarly high of payments which controls the alloca- if you consider legislation in recent ap­ concentration of A type impacted aid tion of impacted areas money when en- propriations acts which allocates impact students that they will get precedence titlements are insufficient to fully fund aid payments, the proposed authorizing over those which may have a lesser con­ the program. Under existing law, if ap- legislation is no more complex than centration of A type. Is that correct? propriations are insufficient to fund all existing law. As in cases with all reason­ And certainly they will get precedence entitlements, each local educational ,able compromises, the compromise is over those which have B military agency is to l'eceive its pro rata share probably more complicated than the students. of the appropriation. In recent years this principles guiding the two opposing sides. Mr. McGOVERN. I think that what provision has been ignored in the appro- On one hand we have those who would the Senator has said is correct. It seems priations process, and an unauthorized like to continue existing law without the to me that that only makes the point new schedule for allocating funds has limitations on the appropriations acts; that what we are trying to do is to pro­ been used in the appropriations bill. on the other hand, we have the admin- vide some reasonable compensation to Therefore, the committee decided to istration which has proposed to elimi­ those areas that do have the sharpest adopt a payment schedule which would nate "B" children from the impact aid Federal impact and where there is the be more realistic in the current situa- program. The arguments made by the least tax base; because if you have a tion than the old "pro rata reduction" administration in favor of the elimina­ school district or a school agency where approach in the authorizing legislation. tion of "B" children were valid in some 25 percent or more of the students are on The philosophy in the new payments instances, and, therefore, we are propos­ that installation or on that Federal prop­ section is as follows: , ing, to the extent that the administra- eIty, it is obvious that you have a dimin­ First. All school districts should re- tion's arguments are valid, that they ished tax base from which to draw. To ceive at least some of the appropriations should be taken into consideration in the say that the students in that area are for each fiscal year; reform of the impact aid program. The going to get only one-sixth of the total Second. The payment rate should be way tproxUnately two months to stUdy the problem. We did feel But I could not, and I opposed it, for ful not to place the blame for skyrocketing we were getting significant parent input one reason: Too many times since I have disorder in the schools on busing of students been in this body and when I was a Mem­ inside the system. from the parents who were on the task force, "A survey of 77 urban schools systems con­ through students, through principals who ber of the other body. I have seen Con­ ducted by the Pupil Personnel Office indi­ work with parents daily. gress pass bills which purported to cates that virtually every urban school sys­ "I think we are pretty much aware of the achieve a certain result and did not. and tem has the same kinds of problems as feelings and concerns of the parents In· the I simply cannot support further Nashville. community, and we tried to have representa­ charades, further efforts to delude or mis­ "Very few of these systems have busing tion on the task force. It's just that in terms of gathering information we didn't go direct­ lead or confuse the parents, the teachers, or integration as an available scapegoat. and the pupils of this country of ours. While certain problems may be dU'ectly at· ly to large numbers of parents-we got It tributable to adjustments to the Nashville indirectly," Dr. Burns noted. That, to me, was the effect of the court order, it is clear that discipline prob­ The task force discovered that principals amendment of the Senator from Indiana. lems were increasing and were a major felt they were the "man-on-the-spot" and It had no positive effect whatsoever. As problem before this school year," the report that they are caugllt in a crossfire between the Senator from Louisiana described it, stated. stUdent, parent, teacher and administrator it was a probusing amendment as origi­ "Suspensions did increase 50 per cent this expectations. nally offered, and I think it is tragic that school year over last year; however, previous ROOTS LOCAL there will be some who wUl interpret that yearly increases were 27 per cent, 36 per cent The task force "feels that the roots of many vote as a step toward relieVing this con­ and 18 per cent Indicating that increases in of the discipline problems are In the com­ suspensions is a trend." munity from whence students come." dition of abuse. It will not. It is a The report recalled that Metropolitan The report observed that crime and dis­ charade. Nashville Education Association reported "as order "in the larger social community are I fully understand those who sup­ far back as 1967," (that) 94 per cent of increasing problems. ported it. Many of my .colleagues who the teachers in the system" sought support "Many of the stUdents behave In their were supporting our amendment, the in dealing with discipline. homes and In the community In a way that Gurney amendment, voted for the Bayh cannot be accepted in the schools," the re­ SOLUTIONS EXIST port asserts. amendment because they felt as though Dr. Jim A. Burns, chairman of the Taslt "While critics of education often suggest we had a desperate need to do some­ Force on Discipline and administrative as­ that stUdent control for control (sic) sake thing. I understand that. I cannot crit­ sistant to Dr. Elbert Brooks, Metro school has become the foremost goal of education, icize them for their votes. But for my­ director, said he believes there are solutions the schools still have to grapple With prob­ self, I cannot participate in what I to the discipline problems the school system lems that come directly from the larger seriously, honestlY, and in all candor faces. community. consider to be a charade and an effort to "I don't think the incidents reflect some· "The problem has recently been increased lead people into thinking something thing which has become Impossible to deal as many citizens who oppose Implementation with," he said in denying that school dis­ of the court order have increased their crit­ might be done to relieve this problem cipline had reached a state of crisis. Icism or opposition to the school system," when in fact it will not. "The fact that we have had incidents and the report states. Perhaps it is well that the amendment problems does not mean that things are The task force found that "discipline seems carried. because it will not be long, 1f out of control," he told a press conference to be one of those concerns where everyone this amendment is incorporated into the prior to presentation of the report to the wants to place responsiblllty or blame on United States Code, before people realize school board. someone else." it has no effect whatsoever. "You can go into any school in the system "Eighty-flve per cent of professional per­ But I urge my colleagues, if they are and find, Indeed, that we are in control­ sonnel surveyed indicated lack of parental and I think the system this year has made backing was a frequent barrier to resolving going to oppose our efforts to achieve stronger and stronger efforts to insure that discipUne probleIns"-and "85 per cent of some relief-- control is a factor In these schools." the personnel also believed parents are a The PRESIDING OFFICER. The Sen­ Dr. Burns said the task force had found probable cause of chronic dlsclpUne prob­ ator's 5 minutes have expired. that serious disruptions" tend to occur out­ lems." Mr. BROCK. I ask unanimous con­ side the classroom. Asked why stUdents were Students who cause discipUne problems sent to proceed for 2 additional minutes. frequently seen roaming the halls and were "are usually stUdents who cannot or who The PRESIDING OFFICER. Is there not in classrooms, he replied: do not succeed In school." objection? Without objection, it is so OFTEN LEGITIMATE "This Is generally true of stUdents who are unable to behave with acceptable standards ordered. "I think the answer to that is that many in Nashville," the report stated. Mr. BROCK. I do ask that if my col­ times disruptions may occur wilen students The task force also reported that the school leagues, apparently a majority-a ma­ are legitinlately not in cJass-changlng of program does not meet the needs of all stu­ jority of one, at least-are going to op­ class, before or after school, in the lunch­ dents and that there is a lack of understand­ pose those remedies which we have pro­ room, going to and from the lunchroom, Ing of the purposes, reasons for, and poUcies posed to stop compulsion in our schools, going to other cl.asses. The fact that a major of the school system In relation to discipline. area is outside the classroom doesn't neces­ I deeply and honestly urge that the com­ The task force Is now preparing Its recom­ mittee and its leadership propose their sarily reflect that stUdents aren't where they mendations of steps to be taken next fall are supposed to be. They may be where they to improve school discipline. Dr. Burns said solution. are supposed to be and still some incidents that this report may be ready In time for the Today we have 110ne. Today there is can occur." next board meeting on June 27. no relief, no remedy. no safeguard, no Dr. Burns said that he "would assume" surety for the parent, the child, or the that stUdents can now go to the restrooms Mr. BROCK. Mr. President, if I may in safety. "We have found nothulg which in· continue on just one or two other points: teacher. Our school population is declin­ dicates that they COUldn't," he said in re­ When the Senator from Indiana offered ing. Our school performances are declin­ sponse to a question. his amendment as a substitute for the ing. Our parental support is declining, "I would hope that there would be a sub­ Gurney amendment, I vigorously op­ and no one seems to want to provide stantial decrease in the ulCldents of behavior posed it, because I thought that it was an lJ.uanswer. and hopefully our task force report and the If response of the system to this report wlll effort to prevent a vote of the Senate on you are going to oppose the remedy contribute," he said. the basic question, We lost the vote on which we suggest, then please offer an "We did not go directly to parents Ul the basic question, after defeating the alternative that will work, because we gatherulg Information," Dr. Bnrns pointed Bayh amendment. simply cannot longer continue this con- lJlay 15, 1974 EXTENSIONS OF REMARKS 14939 dition of coercion, of abuse, and of dis­ of Senate Joint Resolution 202, the Sen­ ments tomorrow, the substitute by Mr. crimination. ate resume the consideration of the un­ CURTIS, Mr. MCCLURE, and Mr. BUCKLEY The PRESIDING OFFICER. Is there finished business. will be called up, and there is a 6-hour further morning business? The PRESIDING OFFICER. Without limitation thereon. Amendments to the Mr. PELL. Mr. President, I suggest the objection, it is so ordered. substitute would be in order. Yea-and­ absence of a quorum. nay votes could occur. It is anticipated The PRESIDING OFFICER. The clerk that the substitute will be disposed of will call the roll. PROGRAM one way or the other on tomorrow before The second assistant legislative clerk Mr. ROBERT C. BYRD. Mr. Presi­ the Senate. adjourns. So this could proceeded to call the roll. dent, the Senate will convene tomorrow indicate a somewhat lengthy day. Mr. ROBERT C. BYRD. Mr. President, at 9 a.m. After the two leaders or their I ask unanimous consent that the order designees have been recognized under for the quorum call be rescinded. the standing order, the distinguished ADJOURNMENT TO 9 A.M. The PRESIDING OFFICER (Mr. Senator from Wisconsin (Mr. PROXlI'llRE) TOMORROW JOHNSTON). Without objection, it is so will be recognized for not to exceed 15 Mr. ROBERT C. BYRD. Mr. President, ordered. minutes; after which the Senate will if there be no further business to come Is there further morning business? proceed to the consideration of Calendar before the Senate, I move, in accord­ No. 817, Senate Joint Resolution 202, ance with the previous order, that the designating the premises occupied by the Senate stand in adjournment until 9 ORDER FOR CONSIDERATION OF Chief of Naval Operations as the official a.m. tomorrow. SENATE JOINT RESOLUTION 202 residence of the Vice President. There is a The motion was agreed to; and at 7: 11 TOMORROW, AND UPON ITS DIS­ time limitation of 15 minutes on that p.m. the Senate adjourned until tomor­ POSITION RESUMPTION OF THE joint resolution, the time to be equally row, Thursday, May 16, 1974, at 9 a.m. UNFINISHED BUSINESS divided and controlled by the Senator Mr. ROBERT C. BYRD. Mr. President, from Virginia (Mr. HARRY F. BYRD, JR.) I ask unanimous consent that on tomor­ and the Senator from Wisconsin (Mr. NOMINATIONS row, immediately after recognition of PROXMIRE) . Executive nominations received by the the distinguished Senator from Wis­ Upon disposition of that joint resolu­ Senate on May 15,1974: consin (Mr. PROXMIRE), and the con­ tion, the Senate will resume considera­ DEPARTMENT OF DEFENSE summation of his order to speak, the tion of the unfinished business, S. 1539, J. William Middendorf II, of Connecticut, Senate proceed to the consideration of a bill to amend and extend certain acts to be Secretary of the Navy, vice John W. Calendar No. 817, Senate Joint Resolu­ relating to elementary and secondary Warner. resigned. tion 202, that there be a time limitation education programs. Gen. George S. Brown, U.S. Air Force, for thereon of 15 minutes to be equally So-called busing amendments will be R,ppolntment as Chairman of the Joint Chlefa divided and controlled by the distin­ in order; and under the agreement, all of Staff for a term of 2 years, pursuant to title 10, United States Code, section 142. guished Senator from Virginia (Mr. such so-called busing amendments are to Gen. David C. Jones, U.S. Air Force, to HARRY F. BYRD, JR.) and the distin­ be' disposed of no later than 1 p.m. be appointed as Chief of Staff, U.S. Air gushed Senator from Wisconsin (Mr. tomorrow. Force, for a period of 4 years, pursuant to PROXMIRE); and that upon disposition Upon the disposition of busing amend- title 10, United States Code, section 8034.

EXTENSIONS OF RE1\'1ARKS CARNEY DEAN: A TRUE PUBLIC velopment of such projects as Bear, Fall, McClellan Waterway up the Deep Fork SERVANT and Coon Creeks, Quapaw Creek and to the vicinity of Oklahoma City. Little Deep Fork. In his Christmas letter in 1972, Carney HON. TOM STEED Carney Dean possessed a refreshing, Dean wrote: OF OKLAHOMA almost naive, enthusiasm in the cause I do not know how to stop work, and life in which he believed, a quality we too Is so good to me. IN THE HOUSE OF REPRESENTATIVES often miss in these days. Wednesday, May 15, 1974 This remark was characteristic of a I will always remember his last visit man whom I am proud to have had as Mr. STEED. Mr. Speaker, during the to Washington some 4 years ago. He had a friend. recent Easter recess I attended the fun­ been here at the end of World War I, Milt Phillips, publisher of the Seminole, eral services for a man who had an al­ passing through on his way home from Okla., Producer, caught much of the most limitless capacity for selfless work France. Then he returned more than 50 spirit of the man in his editorial, which in behalf of the cause of conservation­ years later. He came to testify at the follows: Carney O. Dean of Chandler, Okla. Agriculture Appropriations Subcommit­ He was already at the retirement age tee, headed by our colleague Congress­ NAME IT CARNEY DEAN 'WATERWAY when a group of us interested in soil man JAMIE WHITTEN, not to ask it for (By Milt Phlllips) conservation and water development money but to thank it for what it has Last week over at Chandler Carney O. Dean passed away. Our own problems here at home formed the Deep Fork Watershed Asso­ already done for soil conservation, par­ prevented our attending his services. Few of ciation in a meeting at Wellston, Okla., ticularly that of his native State. We do you who read this will know Carney Dean. High School in 1957. not have many witnesses of that kind. Some of the active leaders of First Christian Soon he became the secretary of the Long years ago he was looking ahead Church will know him and remember the association and continued devoted to this to the day when $100 million a year would years of service he provided the Christian task until his death at 81 last month. be appropriated for soil conservation. Men's Fellowship of The Disciples of Christ. While he received some compensation That was then regarded as visionary, but A few of the area here, such as John Marshall for his work, it could not begin to repay and a few others will remember Carney be­ it has since been passed. cause they were associated with him in Deep the many hours he put into it. Carney In my files I have a 2-foot-thick sheaf Fork Watershed Association. Ruby and Ye Dean did all this because he believed in of the Deep Fork Newsletter, which he Scribe knew Carney from his college days at conservation, in upstream flood control, always issued so brightly and informa­ OU when the three of us worked together and its multiple use of water. tively. in Norman's First Christian Church and the He was born in Lincoln County, Okla., church Christian Endeavor Society. Being in and spent most of his life there. I once He was possessed by the vision not school with carD;ey over those years, we came heard a soil authority describe it as the only of soil conservation systematically to know him fairly well. In later years our applied through tributaries of main paths would cross occasionally, especially most eroded county in the state. This when we visited in areas where Carney was is no longer true due to the work of streams, but also of the project to pro­ in charge of highway appraisals. or where Carney Dean and many others like him vide \'Itatel' transportation for central Carney was doing some chore in church ef­ in the Deep Fork Association in the de- Oklahoma by extending the Kerr- fort. But for the past 15 or 20 years we've