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[p.1852]

Efforts to Curb Busing and Other Desegregation Remedies.— Especially during the 1970s, courts and Congress grappled with the appropriateness of various remedies for de jure racial separation in the public schools, both North and South. Busing of school children created the greatest amount of controversy. Swann, of course, sanctioned an order requiring fairly extensive busing, as did the more recent Dayton and Columbus cases, but the earlier case cautioned as well that courts must observe limits occasioned by the nature of the educational process and the well–being of children,64 and subsequent cases declared the principle that the remedy must be no more extensive than the violation found.65 Congress has enacted several provisions of law, either permanent statutes or annual appropriations limits, that purport to restrict the power of federal courts and administrative agencies to order or to require busing, but these, either because of drafting infelicities or because of modifications required to obtain passage, have been largely ineffectual.66 Stronger proposals, for statutes or for constitutional amendments, were introduced in Congress, but none passed both Houses.67

Of considerable importance to the possible validity of any substantial congressional restriction on judicial provision of remedies for de jure segregation violations are two decisions contrastingly dealing with referenda–approved restrictions on busing and other[p.1853]remedies in Washington State and California.68 Voters in Washington, following a decision by the school board in Seattle to undertake a mandatory busing program, approved an initiative that prohibited school boards from assigning students to any but the nearest or next nearest school that offered the students’ course of study; there were so many exceptions, however, that the prohibition in effect applied only to busing for racial purposes. In California the state courts had interpreted the state constitution to require school systems to eliminate both de jure and de facto segregation. The voters approved an initiative that prohibited state courts from ordering busing unless the segregation was in violation of the Fourteenth Amendment, and a federal judge would be empowered to order it under United States Supreme Court precedents.

By a narrow division, the Court held unconstitutional the Washington measure, and with near unanimity of result if not of reasoning it sustained the California measure. The constitutional flaw in the Washington measure, the Court held, was that it had chosen a racial classification—busing for desegregation—and imposed more severe burdens upon those seeking to obtain such a policy than it imposed with respect to any other policy. Local school boards could make education policy on anything but busing. By singling out busing and making it more difficult than anything else, the voters had expressly and knowingly enacted a law that had an intentional impact on a minority.69 The Court discerned no such impediment in the California measure, a simple repeal of a remedy that had been within the government’s discretion to provide. Moreover, the State continued under an obligation to alleviate de facto segregation by every other feasible means. The initiative had merely foreclosed one particular remedy—court–ordered mandatory busing—as inappropriate.70

Termination of Court Supervision.—With most school desegregation decrees having been entered decades ago, the issue has arisen as to what showing of compliance is necessary for a school district to free itself of continuing court supervision. The Court grappled with the issue, first in a case involving Oklahoma City[p.1854]public schools, then in a case involving the University of Mississippi college system. A desegregation decree may be lifted, the Court said in Oklahoma City Board of Education v. Dowell,71 upon a showing that the purposes of the litigation have been “fully achieved,”—i.e., that the school district is being operated “in compliance with the commands of the Equal Protection Clause,” that it has been so operated “for a reasonable period of time,” and that it is “unlikely” that the school board would return to its former violations. On remand, the trial court was directed to determine “whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past [de jure] discrimination had been eliminated to the extent practicable.”72 In United States v. Fordice,73 the Court determined that the State of Mississippi had not, by adopting and implementing race–neutral policies, eliminated all vestiges of its prior de jure, racially segregated, “dual” system of higher education. The State must also, to the extent practicable and consistent with sound educational practices, eradicate policies and practices that are traceable to the dual system and that continue to have segregative effects. The Court identified several surviving aspects of Mississippi’s prior dual system which are constitutionally suspect, and which must be justified or eliminated. The State’s admissions policy, requiring higher test scores for admission to the five historically white institutions than for admission to the three historically black institutions, is suspect because it originated as a means of preserving segregation. Also suspect are the widespread duplication of programs, a possible remnant of the dual “separate–but–equal” system; institutional mission classifications making three historically white schools the flagship “comprehensive” universities; and the retention and operation of all eight schools rather than the possible merger of some.


Footnotes

64 Swann v. Charlotte–Mecklenburg Board of Education, 402 U.S. 1, 30–31 (1971) .
65 Milliken v. Bradley, 418 U.S. 717, 744 (1974) .
66 E.g., Sec. 407(a) of the Civil Rights Act of 1964, 78 Stat. 248 , 42 U.S.C. Sec. 2000c –6, construed to cover only de facto segregation in Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 17–18 (1971) ; Sec. 803 of the Education Amendments of 1972, 86 Stat. 372 , 20 U.S.C. Sec. 1653 (expired), interpreted in Drummond v. Acree, 409 U.S. 1228 (1972) (Justice Powell in Chambers), and the Equal Educational Opportunities and Transportation of Students Act of 1974, 88 Stat. 514 (1974), 20 U.S.C. §§ 1701 –1757, see especially Sec. 1714, interpreted in Morgan v. Kerrigan, 530 F.2d 401, 411–15 (1st Cir.), cert. denied, 426 U.S. 995 (1976) , and United States v. Texas Education Agency, 532 F.2d 380, 394 n.18 (5th Cir.), vacated on other grounds sub nom. Austin Indep. School Dist. v. United States, 429 U.S. 990 (1976) ; and a series of annual appropriations riders, first passed as riders to the 1976 and 1977 Labor–HEW bills, Sec. 108, 90 Stat. 1434 (1976), and Sec. 101, 91 Stat. 1460 , 42 U.S.C. Sec. 2000d , upheld against facial attack in Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980).
67 See, e.g., The 14th Amendment and School Busing, Hearings before the Senate Judiciary Subcommittee on the Constitution, 97th Congress, 1st Sess. (1981); and School Desegregation, Hearings before the House Judiciary Subcommittee on Civil and Constitutional Rights, 97th Congress, 1st Sess. (1981).
68 Washington v. Seattle School Dist., 458 U.S. 457 (1982) ; Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982) . The decisions were in essence an application of Hunter v. Erickson, 393 U.S. 385 (1969) .
69 Washington v. Seattle School Dist., 458 U.S. 457, 470–82 (1982) . Justice Blackmun wrote the opinion of the Court and was joined by Justices Brennan, White, Marshall, and Stevens. Dissenting were Justices Powell, Rehnquist, O’Connor, and Chief Justice Burger. Id. at 488. The dissent essentially argued that because the State was ultimately entirely responsible for all educational decisions, its choice to take back part of the power it had delegated did not raise the issues the majority thought it did.
70 Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527, 535–40 (1982) .
71 498 U.S. 237 (1991) .
72 Id. at 249–50.
73 112 Ct. 2727 (1992).
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