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Busing, June 1, 1976 (2)
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White House Special Files Unit Files
Issue Decision Papers for the President
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Busing for school integration
Education, Elementary
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The original documents are located in Box 4, folder "Busing, June 1, 1976 (1)" of the White
House Special Files Unit Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 4 of the White House Special Files Unit Files at the Gerald R. Ford Presidential Library
THE PRESTIENT
HAS SEEN
THE WHITE HOUSE
WASHINGTON
June 1, 1976
MEMORANDUM FOR THE PRESIDENT
FROM:
Phil Buchen and Jim Cannon
Juni
SUBJECT:
Busing Legislation
This memorandum briefly describes the substance of
the busing legislation the Attorney General has sub-
mitted for your consideration.
DESCRIPTION
As you know, under current case law, where a Federal
District Court finds that a school board has acted
to foster, promote or perpetuate racial discrimina-
tion in a school system, the Court may order the
board to take whatever steps might be necessary to
convert the entire school system into a "unitary"
(i.e., racially balanced) system. The Attorney
General's bill (attached at Tab A) proceeds from the
premise that the proper role of the courts in
fashioning a remedy in a school desegregation case
is simply to require the racial composition in the
school system that would have existed but for
unlawful acts by the school board.
Specifically, the bill would require a Federal Dis-
trict Court to determine the extent to which the
racial or ethnic concentration in a school system
is attributable to the unlawful action of a State
of local school board and to limit the relief to
eliminating only that racial or ethnic concentration.
The bill would prohibit a court from ordering the
transportation of students to alter the racial or
ethnic composition of a school unless it finds that
the current racial or ethnic composition of the
school resulted in substantial part from unlawful
acts of the State or local school board and that
transportation of students is necessary to adjust the
racial or ethnic composition of the school to that
which would have existed but for such unlawful acts.
-2-
Additionally, the bill provides for a review by the
court every three years to determine if the remedy
imposed is still appropriate. With respect to forced
busing, the bill requires that, except in extra-
ordinary circumstances, no forced busing shall con-
tinue for more than five years.
Finally, the bill would authorize the Attorney General
to appoint Federal School Desegregation Mediators to
assist the court and the parties in school desegrega-
tion cases. It would also provide that, before a
Federal judge may order busing, he must give notice
to ennumerated Federal, State and local officials, who
shall create a committee composed of leaders of the
community, which committee shall immediately endeavor
to fashion a feasible desegregation plan which can be
put into effect over a five-year period. Such a plan
would be subject to approval by the court.
IMPLICATION
The Attorney General argues in the "draft" message he
has prepared for your consideration (attached at Tab B)
that the bill will minimize the extent to which Federal
courts may order the forced busing of school children.
This interpretation is, of course, subject to review
by the courts.
One thing is clear, however, and that is that this bill
would involve the Federal government in major desegre-
gation litigation by:
authorizing the Attorney General to appoint
Federal School Desegregation Mediators to work
with the courts in designing appropriate
desegregation plans, and
requiring the Secretary of Health, Education
and Welfare, in concert with other Federal,
State and local officials, to appoint (and
presumably oversee) the citizens' committees
which will be responsible for developing the
five-year desegregation plans.
These and other points can be discussed at tomorrow's
meeting.
A Bill
To provide for orderly adjudication of school desegregation
suits, and for other purposes.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled, That this Act may be cited as the "School
Desegregation Act of 1976. 11
TITLE I -- Adjudication of Desegregation Suits
Sec. 101. Purpose: Application
(a) The purpose of this Title is to prescribe stand-
ards and procedures to govern judicial relief in school de-
segregation cases brought under Federal law in order (1) to
prevent the continuation or future occurrence of any acts
of unlawful discrimination in public schools and (2) to
assist in the identification and elimination, by all neces-
sary and appropriate remedies, of the present consequences
within the schools of acts of unlawful discrimination found
to have occurred. This title is based upon the power of
the Congress to enforce the provisions of the Fourteenth
Amendment to the Constitution of the United States.
(b) The provisions of this title shall apply to
all judicial proceedings, and the award or modification of
-2-
all judicial relief, after the date of its enactment, seek-
ing the desegregation of public schools under Federal law.
Sec. 102. Definitions
For purposes of this title --
(a) "Local education agency" means a public board
of education or any other agency or officer exercising ad-
ministrative control over or otherwise directing the oper-
ations of one or more of the public elementary or secondary
schools of a city, town, county or other political subdivi-
sion of a State.
(b) "State education agency" means the State board
of education or any other agency or officer responsible
for State supervision or operation of public elementary or
secondary schools.
(c) "Desegregation" means elimination of the effects
of unlawful discrimination in the operation of schools on
the part of a State or local education agency.
(d) "Unlawful discrimination" means action by a
State or local education agency which, in violation of con-
stitutional rights, discriminates against students, faculty
or staff on the basis of race, color or national origin.
-3-
(e) "State" means any of the States of the Union.
Sec. 103. Liability
A local or State education agency shall be held lia-
ble (a) to relief under Section 104 of this Act if the
Court finds that such local or State education agency has
engaged or is engaging in an act or acts of unlawful dis-
crimination and (b) to relief under Section 105 of this Act
if the Court further finds that the act or acts of unlawful
discrimination which occurred within thirty years prior to
the filing of the suit increased the present degree of racial or
ethnic concentration in the student population of any school.
Sec. 104. Relief - Orders prohibiting unlawful acts.
In all cases in which, pursuant to section 103 (a)
of this Act, the Court finds that a local or State educa-
tion agency has engaged or is engaging in an act or acts
of unlawful discrimination, the Court shall enter an order
enjoining the continuation or future commission of any such
act or acts and providing any other relief that, in the
Court's judgment, is necessary to prevent such act or acts
from occurring, or to remedy, as to particular individuals, such
act or acts specifically directed at them.
GERALD R. FORD
Sec. 105. Relief - Orders eliminating the present effects of
unlawful acts.
(a) In all cases in which, pursuant to section 103 (b)
of this Act, or any other provision of federal law, the Court
finds that the act or acts of unlawful discrimination increased
the present degree of racial or ethnic concentration in the
student population of one or more schools, the Court shall order
only such relief, in conformity with sections 213-216 of the
Equal Education Opportunity Act of 1974, as may be necessary to
eliminate the present effects found, in compliance with this
section, to have resulted from the discrimination.
(b) Before entering an order under this section the
Court shall receive evidence, and on the basis of such evi-
dence shall make specific findings, concerning the degree to
which the racial or ethnic concentration in particular schools
affected by unlawful acts of discrimination presently varies
from what it would have been had no such acts occurred. Should
such findings not be feasible or useful because of the great
number of schools that were or may have been effected, the
demographic changes that have occurred over a period of years,
or some. other circumstance; the Court shall receive evidence,
and on the basis of such evidence shall make specific findings
concerning the degree to which patterns of racial or ethnic
- 5 -
concentration in the school system affected by unlawful acts
of discrimination presently varies from what it would have been
had no such acts occurred.
(c) The findings required by subsection (b) of this
section shall in no way be based on a presumption, drawn from
the finding of liability made pursuant to section 103 (b) of
this Act or otherwise, that the degree of racial or ethnic
concentration in the schools or any particular school is the
result of unlawful acts of discrimination.
(d) The Court shall notify the Attorney General of
any proceeding pursuant to subsection (b) of this section to
which the United States is not a party, and the Attorney General
may, in his discretion, intervene in such proceeding on behalf
of the United States to present evidence and take all other
actions that he may deem necessary to facilitate enforcement
of this Act.
(e) No order entered under this Act or any provision
of federal law shall require the transportation of students to
alter the racial or ethnic composition of schools unless, pursuant
to this section, the Court finds that the racial or ethnic con-
centration in particular schools, or, if such findings are not
feasible or useful, the patterns of racial or ethnic concentration
in the school system resulted in substantial part from unlawful
discrimination by a local or State education agency, and that
transportation of students is necessary to adjust the racial or
ethnic composition of particular schools, or patterns of racial
or ethnic concentration in the school system, substantially to
what they would have been if the unlawful discrimination had not
occurred.
(f) In all orders entered under this section the Court
may without regard to this section's other requirements, direct
local or State school authorities to institute a program of
voluntary transfers of students from any school in which their
race is in the majority to available places in one in which it is
in the minority.
Sec. 106. Voluntary action; local control.
All orders entered under section 105 shall rely, to
the greatest extent practicable and consistent with effective
relief, on the voluntary action of school officials, teachers
and students, and the Court shall not remove from a local
or State education agency its power and responsibility to
control the operations of the schools except to the minimum
extent necessary to prevent unlawful discrimination and to
eliminate its present effects.
Sec. 107. Review of Orders.
Subject to the provisions of section 105 (f) of this
Act, no requirement of the transportation of students contained
in any order entered under section 105 of this Act or subject
to that section's provisions shall remain in effect for a
period of more than three years from the date of the order's
entry unless at the expiration of such period the Court finds:
- 7 -
(1) that the defendant has failed to comply
with the requirement substantially and in good
faith; or
(2) that the requirement remains necessary to
eliminate the effects of unlawful discrimination
determined in compliance with the provisions of
section 105 of this Act.
If the Court finds (1) above, it may extend the requirement
until there have been three consecutive years of substantial
compliance in good faith. If the Court finds (2) above,
after the expiration of three consecutive years of substantial
compliance in good faith, it may extend the effect of the
requirement, with or without modification, for a period not
to exceed two years, and thereafter may order an extension
only upon a specific finding of extraordinary circumstances
that require such extension. The Court may, however, continue
in effect a voluntary transportation program to implement
relief under section 105(f) of this Act. The provisions of
this section shall not apply to any plan approved and ordered
into effect under section 203.
Sec. 108.
With respect to provisions of its order not covered
GERALD FORD
- 8 -
by section 107, the court shall conduct a review every
three years to determine whether each such provision shail
be continued, modified, or terminated. The court shall
afford parties and intervenors a hearing prior to making
this determination.
TITLE II -- Federal School Desegregation Mediator
Sec. 201. Appointment of mediator.
The Attorney General is hereby authorized to appoint,
1
at such times and for such period as he deems appropriate,
a Federal School Desegregation Mediator or Mediators to
assist the court and the parties in a school desegregation
lawsuit.
Sec. 202. Functions of a mediator.
GERALD
(a) When a mediator is appointed pursuant to
section 201, he shall provide assistance to the court, the
parties and the affected community to the ends of (1) full
and orderly implementation of the constitutional right to
equality of educational opportunity, (2) insuring that desegregation
is accomplished in a manner which is educationally sound and (3)
seeking to secure community support for proper elimination of
unlawful school discrimination.
(b) A mediator may request the assistance of other
Federal agencies.
GEBALD FORD (EXAND
Citizens Council" pg9
Suggest the
word "Committee"
be subsitated for the
word "Council" where
it apprears. Reminds
too much of "White City
Conncil." This can be
mentioned to Ed Levi after
meeting
Just
- 9 -
Sec. 203.
It is the sense of the Congress that required
transportation of students beyond the nearest school in order
to reduce the lingering effects of past unlawful discrimination
is an unusual remedy which should be used sparingly. Accord-
ingly prior to ordering such required transportation, the
district judge shall give notice to the Attorney General of
the United States, to the Secretary of Health, Education and
Welfare, to the Governor of the State, the Mayor or other
chief executive official of the governing unit involved, and
the Secretary of Health, Education and Welfare in cooperation
with these officials shall create a committee composed
of the leaders of the community. The committee shall immediately
endeavor to fashion a feasible plan which can be put into
effect over a five year period, including such matters as the
relocation of schools, which can give assurance that such
progress will be made toward a removal of the effects of unlaw-
ful discrimination over the five year period, with specific
dates and goals, so that in the meantime required transportation
can be avoided or greatly minimized. Such a plan shall be
submitted to the court for its approval. If, during the contin-
uance or at the expiration of a plan approved under this section,
the court determines that the plan is inadequate, progress made
under such plan shall be taken into account in framing any order
under Section 105 of this Act.
GERALD
MESSAGE TO CONGRESS
I know I am speaking for the vast majority of
Americans when I say that the causes and effects of uncon-
stitutional racial discrimination in our school systems must
be removed. The process by which we have sought to achieve
this has been a long and difficult one. The goal must be
achieved, and I believe substantial progress has been
made.
The ultimate aim must be voluntary, wholehearted
compliance with non-discriminatory practices, practices we
all accept because they are right. The public school system
has been one of America's greatest assets. The desire for
quality education is deep in the heart of American parents
and children. And the longstanding tradition of local
control of the educational system is very important.
The way to achieve the removal of the causes and
effects of racial discrimination in the schools is not the
same in every locality in which unconstitutional acts of
discrimination have occurred. This is because of a variety
of factors such as the geographic array of schools in various
systems and the special characteristics of individual systems
FORD LIBRARY & SERVICE
- 2 -
which properly reflect diverse communities' ideas about
the appropriate structure of the educational process.
On the long and difficult road our society has
traveled in attempting to remove the causes and effects
of racial discrimination there has at times been illegal
resistance to the orders of federal courts and at times
there has been some violence. This resistance and this
violence are illegal. They contradict the Constitution.
The federal government certainly will not condone or
tolerate them. The law will be enforced.
We must realize that what is involved in the
effort to put an end to unlawful racial discrimination in
the schools is a basic constitutional doctrine. That
doctrine has been set forth in a number of decisions of
the United States Supreme Court. And it is not surprising
that there are certain ambiguities in the statements of
the Court -- in the ways in which the doctrine should
translate into action, particularly as to the scope of the
remedy.
During this period it is inevitable that the
decisions of federal district judges, faced with the arduous
and often unpleasant duties of overcoming resistance, will
FORD LIBRARY & GERALD
- 3 -
have elements of artificiality in them. The Supreme
Court has written that the remedy "may be administratively
awkward, inconvenient, and even bizarre in some situations"
(Swann V. Charlotte-Mecklenberg Board of Education, 402
U.S. 1, 28 (1971))
Courts have used various mechanisms for removing
the causes and effects of racial discrimination in the
schools, and the most controversial of them has been the
forced busing of students. In an essential way, the use of
busing highlights the ambiguities in the constitutional
doctrine as stated by the Supreme Court. In my view, and
consistent with the doctrines of the Supreme Court, the
only purpose of court ordered busing should be to achieve
the racial balance within particular schools which would
have occurred through the normal enrollment pattern in the
absence of unconstitutional acts of school discrimination
or, if that is not feasible, to recreate the normal pattern
of racial or ethnic integration which would now exist within
the district but for such acts.
I have always been philosophically opposed to court
ordered busing, but I realize that in some cases it is
GERRED
- 4 -
constitutionally required under opinions of the Supreme
Court. It is, however, not a good mechanism. Many of
the district court judges who have ordered busing have
stated publicly that it is not desirable and that it is
a remedy of last resort. The Congress itself, which has
an important role in defining the nature of the consti-
tutional prohibition and the appropriate remedy under sec-
tion 5 of the Fourteenth Amendment, has also indicated
its disfavor of court ordered busing. In the Equal
Educational Opportunity Act of 1974, P.L. 93-380, 88 Stat.
514 et seq., 20 U.S.C. (Supp. IV) 1701 et seq., it estab-
lished other remedies that may be used to eliminate the
effects of racial discrimination and directed that these
other remedies be given priority. These other remedies
include voluntary transfer systems, creation or revision
of attendance zones or grade structures without requiring
student transportation, construction of new schools or
the closing of inferior schools, and creation of magnet
schools. For reasons involving ambiguities in the legal
doctrine in this area which I will shortly describe, that
congressional effort to solve the problem of busing has
- 5 -
proven insufficient. Congress once more must meet the
challenge and fulfill its constitutional role.
Last November 20 I met with the Attorney General
and the Secretary of Health, Education and Welfare and
directed them to devise legislation that would clarify
the law in this area and move toward the reduction and
eventual elimination of court ordered busing wherever
possible. Since that time we have been at work on a bill
that will enable the constitutional goal of eliminating
race discrimination in its causes and effects to be
achieved with the minimum amount of busing required by the
Constitution. I am today transmitting proposed legislation
which is the result of that effort and which, in my opinion,
will sweep away the confusion and ambiguity which now exist
concerning the purpose and scope of the busing remedy.
In devising legislation in this difficult field the
first and most important need is to clarify the legal theory
upon which the relief for unconstitutional acts of racial
discrimination is based. I do not believe we can now
terminate all busing, but I do believe we can considerable
reduce its use while still achieving the constitutionally
required elimination of the effects of illegal race
discrimination.
GERALD
- 6 -
Each school case involves two distinct questions.
The first is whether the school authorities have committed
acts of racial discrimination (the liability question).
The second is what relief the court should afford once
racial discrimination in the operation of the schools
has been established (the remedy question).
Brown V. Board of Education, 347 U.S. 483 (1954),
addressed the liability question; held conclusively that
official acts to enforce racial discrimination in the
operation of the schools violates the Constitution. The
remedy question has not yielded easily to analytical
solution. The first problem that arose was how quickly
the remedy must take effect. The second Brown case, 349
U.S 294 (1955), was the Court's first attempt to grapple
with that problem. The Court held (id. at 300) that "[i]n
fashioning and effectuating the [desegregation] decrees, the
courts will be guided by equitable principles," and that
the remedy must proceed with "all deliberate speed" (id.
at 301). .
That formula proved unsatisfactory when both school
systems and courts used "all deliberate speed" as an excuse
for inaction. A series of decisions in the 1960's called
CORD LIGRAST
- 7 -
for more rapid compliance. In 1964 the Court held that
"[t] he time for mere 'deliberate speed' has run out"
(Griffin V. County School Board, 377 U.S. 218, 234), and in
1968 that "[t]he burden on a school board today is to come
forward with a plan that promises realistically to work,
and promises realistically to work now" (Green V. County
School Board, 391 U.S. 430, 439 (emphasis in original))
What is the goal of the remedy that must "realis-
tically
work now"? Many judges and courts thought
at first that the proper remedy was to direct school
officials to cease their. racial discrimination. The
illegal practices could be prohibited and stopped. This
is a common form of equitable relief.
The courts, however, went further. Some requirement
to show there was a good faith abandonment of these prac-
tices and that they would not be renewed was no doubt
essential. Moreover, it is within the jurisdiction of a
court of equity to eradicate the lingering effects of a
wrong -- to the extent this is feasible.
This recognition of a need to eradicate the continuing
effects of past racial discrimination created problems that
TORO LIBRARY
- 8 -
continue to confront the Nation. What are those "con-
tinuing effects"? How do we ascertain them? What means
must we use to eradicate them? All of these questions go
to the nature and scope of the remedy for unlawful dis-
crimination.
We cannot begin to ask whether particular remedial
tools --- such as busing to achieve racial balance --
are necessary, when viewed in light of all their advantages
and disadvantages, until we are sure what it is that the
remedy must accomplish.
The public school system in this country developed
as people came together toward the common goal of educating
their children in a manner which reflected the shared values
of the community. This led to a tradition of diversity in
the ways of the educational process, and that diversity in
turn embodied our national commitment to individuality and
community self-reliance. At the same time we also have a
strong national commitment to social mobility and equal
opportunity. These values find their expression in the
constitutional requirement that public officials may not
discriminate against individuals on the basis of their race,
FORO
LIBRARY
- 9 -
color, national origin or sex. Neither the Constitution
nor any tradition of the public school system requires
that children go to school in their immediate neighborhood.
But likewise, neither prohibits, absent illegal official
acts of race discrimination, a community from sending its
children to a neighborhood school.
Busing is required only if, in fashioning a remedy
for the unconstitutional acts, a court must assign students
to schools far from home. When are such assignments
necessary? That question, so basic to the task of devising
a remedy for illegal discrimination, has never received a
satisfactory answer from the Supreme Court.
The Court has emphasized that "[t]he objective
today remains to eliminate from the public schools all
vestiges of state-imposed segregation" (Swann, supra, 402 U.S.
at 15). That formula, seemingly so simple, conceals a
variety of ambiguities. These ambiguities become of over-
riding importance when lower courts must attempt to translate
the Supreme Court's generalities into the particulars of a
plan for the operation of the schools.
The Supreme Court decision in Keyes V. School District
No. 1, Denver, Colorado, 413 U.S. 189, 214 (1973), created
- 10 --
an important ambiguity. The Court emphasized (413 U.S.
at 203) that "racially inspired school board actions have
an impact beyond the particular schools that are the subject
of those actions." It therefore established a rule that,
once a district court has found acts of unlawful discrimina-
tion in some schools of a school system, it should "presume"
that unlawful discrimination was practiced throughout the
school system -- in other words, that the school system is
a "dual school system," for which the remedy is "all-out
desegregation." But what is the real effect of this presump-
tion? It means, at a minimum, that the court should assume
that acts of discrimination have been pervasive and that they
have effects throughout the system. Does it also mean that
the court must presume that some observed distribution of
the races was caused by the discrimination? That some
particular part of the distribution was caused by the dis-
crimination? That all of the distribution was caused by the
discrimination? The Supreme Court did not say. Some lower
courts have taken the last-mentioned interpretation. They
have interpreted what the Supreme Court said in Keyes as
support for orders that every school should mirror the
racial composition of the school district.
- 11 -
The ambiguities, standing by themselves, make it
difficult enough to determine what the remedy should be
designed to accomplish. But that difficulty is compounded
by the discretion traditionally accorded to trial courts
in the formulation of equitable remedies. Discretion of
this sort can cover a multitude of readings of the Supreme
Court's precedents. The ambiguous nature of the precedents
and the distinctive factual complexity of each new case
make it difficult for the district court to devise a remedy
and even more difficult for appellate courts to exercise
effective supervision.
The result of all of this is that many district
courts use a finding of some unlawful discrimination as a
"trigger" for a holding that all schools must be racially
balanced. They define "all-out desegregation" as the
elimination of racial distribution in the schools, however
caused, and bend their efforts to achieve a racial balance
which would not have occurred even in the absence of illegal
acts of racial discrimination. Such a task naturally requires
many students to be assigned to schools far from home and,
- 12 -
hence, must be accomplished by busing.
The goal of the remedy in a school case ought to be to
put the school system, and its students, where they would
have been if the violations had never occurred. In other
words, the goal ought to be to eliminate "root and branch"
the violations and all of their lingering effects. Green, supra,
391 U.S. at 438-
This articulation of the goal has been
approved by the Supreme Court. This is the consitutional
goal which the Supreme Court has mandated, and it is the goal
which any legislative approach to the problem must seek to
achieve.
First the courts have held that the existence of
schools attended predominantly by members of one race does
not in itself amount to racial discrimination; if it were
otherwise, there would be no meaning to the requirement of
"state action" as a precondition to a violation of the
Fourteenth Amendment. Keyes, supra; Spencer V. Kugler, 326
F. Supp. 1235 (D. N.J.), affirmed, 404 U.S. 1027.
Any legislation should make it clear that "desegregation"
means only the elimination of the effects of racial discrimina-
tion by state officials.
Second any legislation should make it clear that the
remedy must deal only with the effects of the acts of school
officials. Discrimination in other parts of society should
- 13 -
be redressed with other tools. For example, Congress has
enacted laws to rectify residential discrimination. See 82
Stat. 81 et seq. , 42 U.S.C. 2601 et seq. Racial discrimination
in housing should be attacked directly and eliminated as
speedily as possible from our society. Its effects ought not
to be the object of a "collateral attack" in school cases
As the Court has observed (Swann, supra, 402 U.S. at 22-23) :
The elimination of racial discrimination in public
schools is a large task and one that should not be
retarded by efforts to achieve broader purposes
lying beyond the jurisdiction of school authorities.
One vehicle can carry only a limited amount of
baggage. It would not serve the important object-
ive of Brown I to seek to use school desegregation
cases for purposes beyond their scope, although
desegregation of schools ultimately will have impact
on other forms of discrimination
Our objective
is to see that school author-
ities exclude no pupil of racial minority from any
school, directly or indirectly, on account of race;
it does not and cannot embrace all the problems of
racial. prejudice, even when these problems contribute
to disproportionate concentrations in some schools.
I should emphasize the language that one vehicle can only
carry a limited amount of baggage. The schools have to
try to fulfill the goal of quality education for all our
children, and no goal is more important than this to all of
our citizens.
Third, any legislation should make it clear that the
remedy should not go beyond the effects of the violations. It
should attempt to remedy past wrongs, but not to produce
a result merely because the result itself may be attractive.
- 14 -
"The task is to correct, by a balancing of the individual
and collective interests, the condition that offends the
Constitution
As with any equity case, the nature of
the violation determines the scope of the remedy" (id. at 16).
"[T]he remedy is necessarily designed, as all remedies are;
to restore the victims of discriminatory conduct to the
position they would have occupied in the absence of such
conduct. " (Milliken V. Bradley, 418 U.S. 717, 746 (1974))
Cf. Franks V. Bowman Transportation Co., No. 74-728, decided
March 24, 1976, slip op. 23. The consequence of illegal acts
by school officials can often be eliminated without an in-
sistence upon a racial composition in each school that in
some degree reflects the racial composition of the school dis-
trict as a whole.
Whenever feasible, the objective of an order altering
the racial or ethnic student compostion of schools should be
to recreate that student composition of each particular school
that would have existed but for the illegal acts of discrimina-
tion. It will sometimes prove impossible or not useful to
recreate such conditions in particular schools. This may be
so because of the great number of schools that are or may have
been affected, changes in demographic patterns, or some other
circumstance. In such cases, the objective of the desegregation
remedy is to restore as closely as possible a social process
that places great importance upon individual choice, mobility,
- 15 -
and community self-reliance. When legality is restored in a
community, our utlimate hope must be the normal operation
of the restored social process reflecting the hopes and
aspirations of all of our citizens. Thus, when the courts
cannot recreate the precise situation in particular schools
which would now exist but for the past act of illegal discrimina-
tion, they should attempt to recreate patterns of racial or ethnic
integration that would have existed in the absence of illegal
acts. To the degree that a neighborhood school system was in
effect at any level of a school system, the court should take
into account the extent to which attendance patterns would,
in any event, have reflected residential patterns of racial
and ethnic concentration. This will often require integration
measures primarily at the borders of racial and ethnic areas
of concentration. This, combined with appropriate opportunities
for transfer, voluntary busing, magnet schools, the appropriate
siting of new schools, and other forms of relief provided by
the statute, will allow for the resumption of normal and free
social processes. Of course, approximations in achieving
this goal must be permissible.
The inclusion in the decree of a provision for voluntary
transfer of individual students from any school in which their
race is in the majority to one in which it is in the minority
can be a useful device to compensate for possible non-apparent
additional lingering effects of the discriminatory conduct.
- 16 -
In some circumstances, temporary additional remedial measures
may also be appropriate to break down officially caused racial
identifiability of particular schools. But the necessity for
such devices and approximations should not diverti the courts
from the pursuit of the proper ultimate objective.
Fourth, the remedy ought to be limited in time (Swann,
supra, 402 U.S. at 31-32). Any judicial order of this sort
strongly interferes with normal social processes and local
autonomy. The interference is necessary, but it ought to ter-
minate as soon as the court can reasonably conclude that the
object of the remedy has been attained. In some cases (for
example, those involving teacher assignments or gerrymandering
of attendance zones) a fully effective remedy can be devised
and applied expeditiously. It may take longer to overcome the
effects of discriminatory school siting and capacity decisions,
for an effective remedy may involve school closings and construc-
tion. But however long each component of the remedy may take
to achieve, any legislation should ensure that the courts monitor
the process and dissolve their orders once the effects of racial
discrimination have been ameliorated to the extent possible.
It should also ensure that the use of forced busing is, except
in extraordinary circumstances, strictly limited in duration.
Let me now address the way in which the legislation I
transmit today meets these concerns.
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First, it would bring certainty to the remedial goal.
Instead of the ambiguous word "segregation" it uses "unlaw-
ful discrimination," which in turn means racial or ethnic
discrimination in the operation of the schools. This makes
it clear that the only proper objects of the remedy are to ban
such acts and eliminate their effects. "Desegregation" is
therefore appropriately defined as the elimination of the
effects of unlawful discrimination by school officials.
In order to give meaning to these definitions, the
legislation requires courts to hold trials and to make
explicit findings of fact concerning the effects of unlawful
discrimination. In making these findings, the courts are
instructed not to rely on any presumption that the unlawful
discrimination caused all (or any particular part) of any
observed racial distribution. The effects of the discrimination
must be proved as facts; they cannot be presumed. It will no
longer be possible for courts to use a finding of unlawful
discrimination as a "trigger" for an order to produce system-
wide racial balance. Courts will mandate only that balance that
would now exist but for the unlawful discrimination by school
authorities.
Second, the legislation makes it clear, if it was not
already clear from other sections, that in a school case
only the acts of school officials are to be considered.
Racial imbalance caused by voluntary choice, by private dis-
- 18 -
crimination, or by unlawful discrimination other than discrimina-
tion in the operation of the schools, is not to be addressed in
a school case. School cases should not attempt to cure
social problems the genesis of which is outside the schools.
Third, the legislation provides for a review by the
judge every three years of the remedies he has imposed. With
respect to forced busing, it requires that except in extra-
ordinary circumstances no forced busing can continue for more
than five years. These provisions would return the operation
of a school system to local authorities at the earliest possible
time.
Fourth, we must give renewed emphasis to the fact that
public schools are and must be of basic concern to local com
munities. Efforts should be directed toward bringing local
community leaders together so that proper educational procedures
can be developed and can gain the maximum community support.
The intervention of the federal courts to enforce the constitu-
tional mandate should as much as possible leave responsibility
upon the local community. For this reason the legislation I am
proposing places emphasis on the use of mediators and mechan-
isms that will bring community leaders together to solve their
problems. The legislation authorizes the Attorney General to
intervene in suits at the remedy stage in order to enforce
the statute's objectives, and it authorizes him to appoint
mediators to assist the court and the parties in these difficult
- 19 -
cases.
Finally, the legislation provides that before
a Federal Judge orders busing, a Committee of leaders
from the area should be formed to endeavor to fashion
a feasible plan which could be put into effect over a
five-year period to make progress toward the removal
of the effects of unlawful discrimination. The
creation and implementation of such a plan could
result in the elimination or substantial minimization
of forced busing.
The efforts to restore our public schools to the
condition in which they would have been but for uncon-
stitutional acts of racial discrimination by school
officials should not be met with resistance and fear.
We should be united in our attempt to achieve this
goal. The legislation I today propose is an
important step. To work toward this goal with a
divisiveness
minimum of 88******** can be an exercise in the
harmony that we seek to achieve and can lead to
the end we all so deeply desire.
that
LIBEARY