LEGISLATIVE RESPONSES TO SCHOOL DESEGREGATION LITIGATION HEARING BEFORE THE SUBCOMMITTEE ON TIE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTH CONGRESS SECOND SESSION APRIL 16, 1996 Serial No. 115 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 36-257 CC WASHINGTON : 1997 For sale by the US. Government Printing Office Superintendent of Documents. Congressional Sales Office. Washington. DC 20402 ISBN 0-16-054179-4 Hsol- 3a& COMMITTEE ON THE JUDICIARY HENRY J. HYDE, Illinois, Chairman CARLOS J. MOORHEAD, California JOHN CONYERS, JR., Michigan F. JAMES SENSENBRENNER, JR., PATRICIA SCHROEDER, Colorado Wisconsin BARNEY FRANK, Massachusetts BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California HOWARD COBLE, North Carolina RICK BOUCHER, Virginia LAMAR S. SMITH, Texas JOHN BRYANT, Texas STEVEN SCHIFF, New Mexico JACK REED, Rhode Island ELTON GALLEGLY, California JERROLD NADLER, New York CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia BOB INGLIS, South Carolina MELVIN L. WATT, North Carolina BOB GOODLATTE, Virginia XAVIER BECERRA, California STEPHEN E. BUYER, Indiana JOSE E. SERRANO, New York MARTIN R, HOKE, Ohio ZOE LOFGREN, California SONNY BONO, California SHEILA JACKSON LEE, Texas FRED HEINEMAN, North Carolina ED BRYANT, Tennessee STEVE CHABOT, Ohio MICHAEL PATRICK FLANAGAN, Illinois BOB BARR, Georgia ALAN F. COFFEY, JR., General Counsel/Staff Director JuLIAN EPSTEIN, Minority Staff Director SUBCOMMITTEE ON THE CONSTITUTION CHARLES T. CANADY, Florida. Chairman HENRY J. HYDE, Illinois BARNEY FRANK, Massachusetts BOB INGLIS, South Carolina MELVIN L. WVA.TT, North Carolina MICHAEL PATRICK FLANAGAN, Illinois JOSE E. SERRANO, New York F. JAMES SENSENBRENNER, JR., JOHN CONYERS, JR., Michigan Wisconsin PATRICIA SCHROEDER, Colorado MARTIN R. HOKE, Ohio LAMAR S. SMITH, Texas BOB GOODLATTE, Virginia KATHRYN A. HAZEEM, Counsel KERI D. HARRISON, Assistant Counsel ROBERT RABEN, Minority Counsel CONTENTS HEARING DATE Page A p ril 16 , 19 96 ...................................................................................................... .... 1 OPENING STATEMENT Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution ............................. 1 WITNESSES Armor, David J., research professor, the Institute of Public Policy, George M ason U niversity ................................................................................................ 27 Canavan, Marcy, chairman, Prince George's County Board of Education .......... 49 Cooper, Charles J., partner, Shaw, Pittman, Potts & Trowbridge ...................... 36 Hoke, Hon. Martin R., a Representative in Congress from the State of Illin ois ................................................................................................................... 15 Lipinski, Hon. William 0., a Representative in Congress from the State of Illin o is .......... ........................................................................................ ........... 8 Shaw, Theodore, associate director-counsel, NAACP Legal Defense and Edu- cation F u nd .......................................................................................................... 4 7 Taylor, William, vice chairman, Leadership Conference on Civil Rights ........... 33 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Armor, David J., research professor, the Institute of Public Policy, George M ason University: Prepared statement ........................... .... ......................... 31 Canavan, Marcy, chairman, Prince George's County Board of Education: Pre- pared sta tem en t ................................................................................................... 53 Cooper, Charles J., partner, Shaw, Pittman, Potts & Trowhridge: Prepared sta te m en t .............................................................................................................. 39 Hoke, Hon. Martin R., a Representative in Congress from the State of Illinois: Prepared statem ent ............................................................................................. 17 Lipinski, Hon. William 0., a Representative in Congress from the State of Illinois: Article dated March 20, 1995, from the Chicago Sun Times ........................ 12 Maps provided by the Chicago Public School Board showing underutilized and overutilized facilities ............................................................................. 10 Prepared statem ent ........................................................................................ 14 APPENDIX M aterial subm itted for the hearing ....................................................................... 83 (Ill) LEGISLATIVE RESPONSES TO SCHOOL DESEGREGATION LITIGATION TUESDAY, APRIL 16, 1996 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY Washington, DC. The subcommittee met, pursuant to notice, at 10:04 a.m., in room 2226, Rayburn House Office Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding. Present: Representatives Charles T. Canady, Henry J. Hyde, Bob Inglis, Michael Patrick Flanagan, F. James Sensenbrenner, Jr., Martin R. Hoke, Lamar Smith, Bob Goodlatte, Barney Frank, Mel- vin L. Watt, and John Conyers, Jr. Also present: Representatives Robert C. Scott and Sheila Jackson Lee. Staff present: William L. McGrath, counsel; Jacquelene McKee, paralegal; Mark Carroll, staff assistant; and Robert Raben, minor- ity counsel. OPENING STATEMENT OF CHAIRMAN CANADY Mr. CANADY. The subcommittee will be in order. Today's hearing marks the second time this subcommitt-ee has convened to explore the important topic of school desegregation. Last September, we held a field hearing in Cleveland, OH, to learn about that city's experience with a Federal court lawsuit concern- ing the public schools. Congressman Martin Hoke, a member of this subcommittee who represents Cleveland, has been very ener- getic topic, and it was helpful to examine one of these cases in some on this detail. Our purpose today is to take a broader perspective on the topic of school desegregation litigation and to ask whether this is an area where Federal legislation might be helpful and appropriate. There are literally hundreds of public school districts in this coun- try currently laboring under some sort of school desegregation de- cree, and most of these are being supervised by a court. But as the Supreme Court has reminded us time and again, Federal court intervention contravenes the important prinLiple that local auton- omy of school districts is a vital national tradition. Of course, where de jure segregation existed, it was both right and proper for the Federal courts to intervene to protect and vindi- cate the constitutional rights of minority students, but as many of these cases enter the third, fourth, and even fifth decade, it is only sensible to ask whether the Federal courts are doing all they can and should to expedite the reestablishment of local democratic con- trol over public education. That is the purpose of today's hearing. No doubt we will hear the objection that Congress has no busi- ness getting involved in this issue. The Federal courts, we will be told, are the exclusive arbiters of the appropriate instance and du- ration of their involvement in these cases. But I don't accept that argument. We recently confronted similar claims in connection with our efforts in the area of prison reform litigation. I believe we have proposed and passed very helpful prison legislation that achieves two important objectives: we have protected legitimate conbtitu- tional rights and guarantees, and we have crafted guidelines to en- sure that judicial intervention in the administration of prisons is no broader and lasts no longer than is constitutionally necessary. It is my hope and expectation that we will be able to achieve the same result in the area of school desegregation litigation. Any leg- islation we propose will be faithful to the letter and spirit of the Supreme Court's jurisprudence in this area, but I believe that there may well be a meaningful role for Congress to play in facilitating the transition from our current widespread Federal judicial man- agement of public school districts to local self-governance. I would like to thank Mr. Hoke for his leadership on this issue, and I look forward to working with him and other interested mem- bers as our efforts proceed. And I appreciate the participation of each of our witnesses today. I look forward to your testimony. Our first panel today- Mr. FRANK. Mr. Chairman. Mr. CANADY. Yes. Yes, Mr. Frank is recognized. Mr. FRANK. We are here today as part of something that's very familiar to those engaged in civil rights litigation. This is a pat- tern-and-practice situation, but it's the pattern and practice of thi3 subcommittee that's relevant. We hear from the majority that they accept the fact discrimina- tion based on race and on sex continues to be a problem in our soci- ety, although I believe we've made a great deal of progress in con- fronting those. We, I think, agree at least verbally that there is a continuing problem. But you wouldn't know that discrimination based on race or sex was a problem in thds society if you were a close follower of this subcommittee, because this subcommittee has, since the majority took over, embarked on a very interesting prac- tice; namely, to have hearings