Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
135840719
label
Busing (2 of 3)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
135840719
contentType
document
title
Busing (2 of 3)
citationUrl
identifierLocal
47
collections
Records of the White House Office of Public Liaison (Reagan Administration)
Morton Blackwell's Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
135840719
coverageEndDate
logicalDate
1984-12-31
year
1984
coverageStartDate
logicalDate
1981-01-01
year
1981
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
0937f6a18ee871c5
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Blackwell, Morton: Files
Folder Title: Busing (2 of 3)
Box: 3
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
November 17, 1981
TO:
William Bradford Reynolds
FROM: Morton C. Blackwell
RE:
Exchange of correspondence between your office and
Mr. Lester S. Jung
I reviewed the letter of November 10 dispatched by Thomas
M. Keeling of your office to Mr. Lester S. Jung's letter
to the President.
The issue of busing has motivated many people into
organizational activism. Unfortunately many opponents
of busing have an almost total lack of understanding of
the position and direction of the Administration on this
issue.
The Attorney General and you have been doing some excellent
work which would ease the concerns of many people
passionately commited to their neighborhood schools.
I would suggest that you send a follow-up note to Mr. Jung
and provide him with a copy of recent testimony or other
position papers emanating from your office on the subject.
Neighborhood school supporters might not agree with
every jot and tittle of such testimony or papers, but
it would open their eyes to the fact that this Administration
is vastly more supportive of the neighborhood school
concept than was the Carter Administration.
I have attached copies of Mr. Jung's letter and the
response by Mr. Keeling.
WBR: TMK: CMC saf
NOV 10 1981
DJ 169-017-42
Mr. Lester S. Jung, Jr.
2809 Bee Hive Place
St. Louis, Missouri 63129
Dear Mr. Jung:
Thank you for your letter dated August 27, 1981,
addressed to the President which was mailed to Morton
Blackwell on September 4, 1981.
Your views have been noted.
Sincerely,
Wm. Bradford Reynolds
Assistant Attorney General
Civil Rights Division
By:
Thomas M. Keeling
Acting Chief
General Litigation Section
August 27, 1981
Mr. President:
040017
After four years of the previous administration, it became
obvious to this family and millions of others that this country
was in need of a dynamic change. And dynamic it has been.
I praise your relentless, straight ahead efforts to bring
this country back economically as well as to re-establish a proud,
America, not willing to be intimidated by the Soviets, terrorists,
and others threatening our recovery and being.
I have applauded your budget and welfare cuts with enthusiasm
to even those liberal types who might not agree with me, but cer-
tainly admire your timing and enthusiasm.
Due to pre-election commitments, one area of the existing
administration that has been a disappointment to me is the forced
busing issue.
It was said in this administration that the forced busing
issue was a "social" issue, and would be dealt with after the
"economic" issues were dealt with.
With economic issues being dealt with for the most part,
isn't it time to see some results from Terrell Bell, William
French Smith, and numerous others in government to take positive
action on what they admit is a counter-productive waste of money,
human resources, oil reserves, and the many other negatives
associated with this unpopular injustice?
It is obvious that Richard Bradford Reynolds and other Justice
Department carryovers from the Carter travesty are not paying
attention to the wishes of your administration and should be
replaced.
In all bused areas it has caused nothing but diluted education,
violence, sexual and drug promiscuity, tense learning environments,
etc. to its' victims.
In recent correspondence with Paul Laxalt, Strom Thurmond,
Jesse Helms, and numerous others, I was assured that these were
also their sentiments and all claimed to have proposed legislative
action to support quality education to all by means of the neigh-
borhood school concept.
In St. Louis and suburbs, we are still waiting for both
Houses to make some obvious efforts to uphold what they support
by majority-an anti forced busing legislation.
But instead, we are faced with William Hungate, the 8th District
Court of Appeals, and other areas of government "misbehaving" as if
we were living in a dictatorship, by delegating where a child will
attend school, unless of course, we choose private education to
escape these dictates.
Personally, I would rather not be faced with that decision.
I have always supported public education, since my children appear
to be learning at an acceptable pace and are disciplined adequately
if necessary.
Mr. President, I along with millions of others in this great
country appeal to you that some positive action be taken concern-
ing the injustice of forced busing and to re-establish quality
education to all involved through the neighborhood school concept
to public education.
Thank you, God Bless you and your family. Our prayers are
with you.
Respectfully,
Jung Jr. Family
May 19, 1982
609 Huntley Heights Dr.
Manchester, Mo. 63011
file
Morton Blackwell
Office of Public Liason, Room 191
Busing
Old Exec. Off. Bldg.
White House
Washington DC 20500
Dear Mr. Blackwell,
This is a copy of a letter that I have just sent to President Reagan.
Please make sure that he is aware of my opinions.
Thank you,
Susan Jegtineyer
Susan Tegtmeyer
May 19, 1982
609 Huntley Heights Dr.
Manchester, Mo. 63011
President Ronald Reagan
The White House
Washington DC 20510
Dear President Reagan,
Our personal freedoms are slipping away quickly! The culprits taking
these freedoms away are the federal judges who act as if we live
in a dictatorship rather than a democracy. I feel like it's a waste
of time to vote anymore when the legislators can't or won't stand
up to these tyrants and stop them.
Your platform during the presidential election included getting forced
busing stopped and getting more control back on the state level. I
haven't seen this happen yet and am greatly dissappointed. Please
carry through with your promises. That's what got you elected.
This stupid social engineering plan of busing all the school children
in the country only destroys their lives and lowers their educations.
Please put a stop to it immediately!!!
Thank you,
Susan d Jegtmeyer
Susan D. Tegtmeyer
Kelly
U.S. Department of Justice
sent
Civil Rights Division
3015
Office of the Assistant Attorney General
Washington, D.C. 20530
7
JUN 1982
MEMORANDUM
TO: Morton Blackwell
Special Assistant to The President
for Public Liaison
FROM: Wm. Bradford Reynolds
Assistant Attorney General
WBR
Civil Rights Division
SUBJECT: Standard paragraph for responding to
citizens' letters on "forced busing"
Ms. Sally Kelley of your office has requested that we
provide you with a standard paragraph to be used in responding
to citizens' letters on "forced busing." I assume that such
a paragraph would be used to respond to general complaints or
comments about busing and that any letters questioning specific
court orders, which may have been issued in cases where the
United States is a party, would continue to receive individual
treatment, including possible referral to this Department.
Set forth below is a paragraph (edited appropriately as though
from the White House staff) which I have used in responding
to some letters generally addressed to the "busing" or "social"
issues.
"In your letter, you express concern
that the Administration is retreating from the
President's earlier pronouncements in opposition
to forced busing. Please rest assured that the
President remains unalterably opposed to the use
of forced busing and that the actions and policies
of Administration officials reflect this opposition.
For example, in Senate hearings on certain anti-
busing measures pending in Congress, Assistant
Attorney General Wm. Bradford Reynolds emphasized
that "The Administration is
clearly
and
unequivocally on record as opposing the use of
mandatory transportation of students as an element
- 2 -
of relief in future school desegregation cases."
Instead, as Assistant Attorney General Reynolds
testified, the Department of Justice is now
following a remedial policy in school desegregation
cases that emphasizes the removal of state-enforced
barriers to open access to public schools and
insurance that students of all races are provided
equal opportunities to obtain an education of
comparable quality. Additionally, in two major
busing cases currently pending before the Supreme
Court, the Department of Justice reversed the
position taken by the previous Administration and
argued in support of anti-busing measures enacted
by the states of California and Washington. As you
can see, the Administration is vigorously pursuing
the President's goal of eliminating forced busing
from the panoply of remedial techniques used
in future school desegregation cases."
A copy of the testimony referred to in the paragraph is
attached in the event you wish to use this standard paragraph.
Do not hesitate to call if I can be of any further assistance.
Department of Justice
STATEMENT
OF
WILLIAM BRADFORD REYNOLDS
ASSISTANT ATTORNEY GENERAL
CIVIL RIGHTS DIVISION
BEFORE
THE
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
HOUSE OF REPRESENTATIVES
CONCERNING
SCHOOL DESEGREGATION
ON
NOVEMBER 19, 1981
Thank you for inviting me to testify on the critically
important subject of school desegregation.
As you know, I testified last month before a Senate
Subcommittee looking at this same question. I believe that all
of us involved in the development of policy in this area and
in enforcement will benefit from the thorough study now
underway in the House and Senate.
Few contemporary domestic issues command as much public
attention as the question of how this Administration and
Congress plan to respond to the problem of unconstitutional
racial segregation of our public schools. Virtually everyone,
I believe, agrees with the ultimate objective -- that is,
complete eradication of state-imposed racial segregation.
Moreover, we all probably can agree that the achievement of
this objective is central to the constitutional promise of
equal protection of the laws.
In recent years, however, we have witnessed growing
disenchantment by many with some of the remedies used to
accomplish the constitutional imperative of eliminating
racial discrimination in public schools. The testimony
presented to this Subcommittee and two Senate Subcommittees
underscores an increased public awareness of the need to
develop enlightened and forward-looking school desegregation
remedies.
-2-
I know that this Committee has before it several
bills and proposed constitutional amendments dealing with
the subject of school desegregation. While these proposals
differ in a number of respects -- both in terms of the procedural
approach suggested and in terms of the substantive relief
contemplated -- all sound the same theme: compulsory busing
of students in order to achieve racial balance in the public
schools is not an acceptable remedy.
As a matter of Administration policy, this theme has
been endorsed by the President, the Vice President, the
Secretary of Education, the Attorney General, and me.
The Administration is thus clearly and unequivocally on
record as opposing the use of mandatory transportation of
students to achieve racial balance as an element of relief in
future school desegregation cases. Stating our opposition
to compelled busing, however, is but a starting point in
developing just and sound policies to achieve the central
aim of school desegregation -- equal educational opportunity.
If mandatory busing is not an acceptable tool with which to
combat unconstitutional racial segregation of our public
schools, it is incumbent upon all branches of government to
develop reasonable and meaningful alternatives designed to
remove remaining state-enforced racial barriers to open
student enrollment and to ensure equal educational oppor-
tunity for all, without regard to race, color or ethnic origin.
- 3 -
It is in the area of developing just such meaningful
alternative approaches to accomplish to the fullest extent
practicable the desegregation of unconstitutionally segregated
public schools that we at the Department of Justice have
been concentrating our attention in recent months. I
am pleased to have this opportunity to share with you the
thoughts and tentative conclusions resulting from our analysis
to date.
Let me note at the outset that my remarks today are
directed only to the policy considerations raised by the
several bills currently before the Judiciary Committee. Other
questions have been raised regarding the constitutionality
of legislation that seeks to restrict the jurisdictional authority
of federal courts to order certain relief. Those complex
constitutional issues are being carefully scrutinized by the
Department of Justice. Because that review has not yet been
completed, I will, for the present, place to one side all
discussion relating to the constitutional implications of
the bills before this Subcommittee and the Subcommittee on
Courts, Civil Liberties and the Administration of Justice.
Rather, I will focus solely on the remedial considerations
under development by this Administration to vindicate the
constitutional and statutory requirements of equal educational
opportunity. I hope that this Subcommittee will find the
Administration's analysis -- and the policies borne of that
analysis -- useful in its deliberations in this area.
- 4 -
The Department's responsibility in the field of school
desegregation derives, as you know, from Titles IV, VI and IX
of the Civil Rights Acts of 1964, as well as the Equal Education
Opportunity Act of 1974. It is important to emphasize that
these statutes do not authorize the Department of Justice
to formulate education policy. Nor could they, for under
our federal system, primary responsibility for formulating
and implementing education policies is constitutionally
reserved to the states and their local school boards. In
carrying out this responsibility, however, the states cannot
transgress constitutional bounds, and the Department's basic
mission under these federal statutes, a mission to which
this Administration is fully committed, is to enforce the
constitutional right of all children in public schools to be
provided equal educational opportunity, without regard to
race, color or ethnic origin.
In discussing with you the particulars of how we intend
to enforce this constitutional right, it is important to
frame the discussion in proper historical perspective.
Brown V. Board of Education, 347 U.S. 483 (1954), is,
of course, the starting point. In Brown, the Supreme Court
held that even though physical facilities and other tangible
elements of the educational environment may be equal, state-imposed
racial segregation of public school students deprives minority
students of equal protection of the laws. Id. at 493. Casting
-5-
aside the shameful "separate-but-equal" doctrine established
some 84 years earlier in Plessy V. Ferguson, 110 U.S. 537
(1896), the Court held that state-imposed racial separation
inevitably stigmatizes minority students as inferior. Id.
at 494. The Court concluded, therefore, that state-enforced
racially separated educational facilities are inherently unequal.
Id. at 495.
One year after the initial decision in Brown, the Supreme
Court, in Brown II, ordered that the Nation's dual school
systems be dismantled "with all deliberate speed." Brown v.
Board of Education, 349 U.S. 294, 300-301 (1955) (Brown II).
The goal of a desegregation remedy, the Court declared, is
the admission of students to public schools on a "racially
nondiscriminatory basis." Ibid.
During the period following Brown II, state and local
officials engaged in widespread resistance to the Court's
decision; thus, few jurisdictions made any real progress
towards desegregation. In 1968, thirteen years after Brown II,
the Supreme Court's patience ran out. In Green V. County
School Board, 391 U.S. 430 (1968), the Court was confronted
with a "freedom-of-choice" plan that had the effect of
preserving a dual system. In disapproving this plan, the
Court made clear that a desegregation plan must be judged
by its effectiveness in disestablishing state-imposed
- 6 -
segregation. Id. at 439. The burden on a school board
that has operated a dual system, the Court explained, "is to
come forward with a plan that promises realistically to work
and promises realistically to work now. Ibid.
In neither Brown nor Green, however, did the Court
assert that racial balance in the classroom is a constitutional
requirement or an essential element of the relief necessary
to redress state-enforced segregation in public schools.
Rather, the Court held simply that the Constitution requires
racially nondiscriminatory student assignments and eradication
of the segregative effects of past intentional racial
discrimination by school officials.
Because of the problems encountered by the lower courts
in implementing the Green decision, the Supreme Court returned
to the subject of a school board's remedial obligations three
years later in Swann V. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971). Swann specifically rejected any "substantive
constitutional right [to a] particular degree of racial balance"
(id. at 24), and reiterated that the basic remedial obligation
of school boards is "to eliminate from the public schools
all vestiges of state-imposed segregation." Id. at 15.
For the first time, however, the Court authorized use of
mandatory race-conscious student assiguments to achieve
this objective, explaining that racially neutral measures,
such as neighborhood zoning, may fail to counteract the
continuing effects of past unconstitutionall segregation.
Id. at 27-28. Moreover, in light of the prevalence of bus
- 7 -
transportation in public school systems, the Swann Court
upheld the use of mandatory bus transportation as a permissible
tool of school desegregation. Id. at 29-30.
Thus, in what has proved to be the last unanimous opinion
by the High Court in the school desegregation area, the first
tentative step was taken down the remedial road of court-
ordered, race-conscious pupil assignments and transportation.
Since then, that road has been traversed more and more often
by the yellow school bus.
What is interesting to note, however, is that the Swann
Court spoke in measured terms, expressing reserved acceptance
of busing as but one of a number of remedial devices available
for use when, and these are the Supreme Court's words, it
is "practicable," "reasonable," "feasible," "workable,"
and "realistic." The Court clearly did not contemplate
indiscriminate use of busing without regard to other important,
and often conflicting, considerations. Indeed, the Swann
Court, emphasizing the multiple public and private interests
that should inform a desegregation decree, expressed disapproval
of compulsory busing that risks the health of students or
significantly impinges on the educational process, made
clear that busing can be ordered only to eliminate the effects
of state-imposed segregation and not to attain racial balance
in the schools, and tacitly admonished courts to rely on
experience in exercising their equitable remedial powers.
- 8 -
Today, a decade after Swann, there is ample reason to
heed that admonition. Justice Oliver Wendell Holmes counseled
wisely, in his book The Common Law, that "the life of the law
has not been logic, it has been experience." Unlike 1971,
when no court had any empirical evidence on which to assess
the advisability or effectiveness of mandatory busing, now
we have 10 years of experience and the results of hundreds
of busing decrees on which to draw in formulating current
desegregation policies. It is against this backdrop that
courts, legislators, and the public must -- as Swann itself
signaled -- now reconsider the wisdom of mandatory busing
as a remedy for de jure segregation.
Few issues have generated as much public anguish and
resistance, and have deflected as much time and resources
away from needed endeavors to enrich the educational
environment of public schools, as court-ordered busing.
The results of numerous studies aimed at determining the
impact of busing on educational achievement are at best
mixed. There has yet to be produced sufficient evidence
showing that mandatory transportation of students has been
adequately attentive to the seemingly forgotten "other"
remedial objective of both Brown and Swann; namely,
establishment of an educational environment that offers
equal opportunity to every school child, irrespective of
race, color, or ethnic origin. In his May address to the
American Law Institute, Attorney General William French Smith
- 9 -
accurately commented on the accumulated evidence in this
area in the following terms:
Some studies have found negative effects
on achievement. Other studies indicate
that busing does not have positive effects
on achievement and that other consid-
erations are more likely to produce
significant positive influences.
In addition, in many communities
where courts have implemented busing
plans, resegregation has occurred. In
some instances upwardly mobile whites
and blacks have merely chosen to leave
the urban environment. In other in-
stances, a concern for the quality of
the schools their children attend has
caused parents to move beyond the reach
of busing orders. Other parents have
chosen to enroll their children in
private schools that they consider
better able to provide a quality
education. The desertion of our
cities' school system has sometimes
eliminated any chance of achieving
racial balance even if intra-city
busing were ordered.
These lessons of experience have not been lost on some
judges, including members of the Supreme Court, where opinion
in this area is now sharply divided. For example, Justice
Lewis Powell recently remarked in dissent in the Estes case:
- 10 -
This pursuit of racial balance at
any cost is without consti-
tutional or social justification.
Out of zeal to remedy one evil,
courts may encourage or set the
stage for other evils. By acting
against one race schools, courts
may produce one race systems. /
The flight from urban public schools has contributed to
the erosion of the tax base of a number of cities, which,
in turn, has a direct bearing on the growing inability of
many school systems to provide a quality education to their
students -- whether black or white. Similarly, the loss
of parental support and involvement -- which often comes
with the abandonment of a neighborhood school policy -- has
robbed many public school systems of a critical component of
successful educational programs. There is, in addition,
growing empirical evidence that educational achievement
does not depend upon racial balance in public schools.
To be sure, some communities have accepted mandatory
busing, thus avoiding some of its negative effects. However,
calm acceptance of mandatory busing is too often not forthcoming;
and, plainly, the stronger the parental and community resistance,
the less effective a compulsory student transportation plan
becomes.
I Estes V. Metropolitan Branches of the Dallas NAACP,
444 U.S. 437, 450 (1980) (Powell, J., joined by Stewart
and Rehnquist, J. J., dissenting from dismissal of
certiorari as improvidently granted).
- 11 -
One of the principal objections to busing is that
courts -- frequently relying on the advice of experts --
have largely ignored the measured terms of the Swann decision
and have employed busing indiscriminately, on the apparent
assumption that the cure-all for past intentional segregative
acts is to reconstitute all classrooms along strict racial
percentages. Not even in a perfect educational world would
one expect to find every school room populated by precise
racial percentages that mirror the general school age
population.
Mandatory busing has also been legitimately criticized on
the grounds that it has been employed in some cases to alter racial
imbalance that is in no way attributable to the intentionally
segregative acts of state officials. In Keyes V. Denver
School District, 413 U.S. 189 (1973), the Supreme Court held
that a finding of state-imposed racial segregation in one
portion of a school system creates a presumption that racial
imbalance in other portions of the system is also the product
of state action. To avoid imposition of & system-wide
desegregation plan, which often includes system-wide busing,
a school board subject to the Keyes presumption must shoulder
the difficult burden of proving that racial imbalance in
schools elsewhere in the system is not attributable to school
authorities. In cases in which there is no independent evidence
- 12 -
that the racial imbalance in a challenged school can
realistically be traced to the intentionally segregative acts
of school officials, application of the Keyes presumption is
unfair. Yet it has in the past been so used, resulting
in some instances in imposition of system-wide transportation
remedies encompassing not only de jure, or state-imposed,
racial segregation, but de facto racial segregation as well.
Sobered by this experience, the Administration has
reexamined the remedies employed in school desegregation
cases. Stated succinctly, we have concluded that involuntary
busing has largely failed in two major respects: (1) it has
failed to elicit public support and (2) it has failed to
advance the overriding goal of equal educational opportunity.
Adherence to an experiment that has not withstood the test
of experience obviously makes little sense.
Accordingly, the Department will henceforth, on a
finding by a court of de jure racial segregation, seek
a desegregation remedy that emphasizes the following three
components, rather than court-ordered busing:
(i) removal of all state-enforced
racial barriers to open access
to public schools;
(ii) assurance that all students --
white, black, hispanic 0 15 of any
other ethnic origin -- are
provided equal opportunities
to obtain an education of com-
parable quality;
(iii) eradication to the fullest extent
practicable of the remaining
vestiges of the prior dual systems.
- 13 -
To accomplish this three-part objective, we have developed,
I think, a coherent, sound, and just litigation policy that
will ensure fair enforcement of the civil rights laws, eliminate
the adverse results attending percentage busing, and make
educational issues the foremost consideration.
As part of that litigation policy, the Department will
thoroughly investigate the background of every racially
identifiable school in a district to determine whether the
racial segregation is de jure or de facto. In deciding to
initiate litigation, we will not rely on the Keyes presumption,
but will define the violation precisely and seek to limit
the remedy only to those schools in which racial imbalance
is the product of intentionally segregative acts of state
officials. And all aspects of practicability, such as disruption
to the educational process, community acceptance, and student
safety, will be weighed in designing a desegregation remedy.
In developing the specific remedial techniques to
accomplish this three-part objective, we recognize that no
single desegregation technique provides an answer. Nor
does any particular combination of techniques offer the
perfect remedial formula for all cases. But some desegregation
approaches that seem to hold promise for success include:
- 14 -
voluntary student transfer programs; magnet schools; enhanced
curriculum requirements; faculty incentives; in-service
training programs for teachers and administrators; school
closings in systems with excess capacity and new construction
in systems that are overcrowded; and modest adjustments to
attendance zones. The overarching principle guiding the
selection of any or all of these remedial techniques --
or indeed resorting to others that may be developed -- is
equal educational opportunity.
Let me add that our present thinking is to give this
approach prospective application only. We thus do not
contemplate routinely reopening decrees that have proved
effective in practice. The law generally recognizes a special
interest in the finality of judgments, and that interest is
particularly strong in the area of school desegregation.
Nothing we have learned in the 10 years since Swann leads to
the conclusion that the public would be well served by reopening
wounds that have long since healed.
On the other hand, some school districts may have been
successful in their efforts to dismantle the dual systems
of an earlier era. Others might be able to demonstrate that
circumstances within the system have changed to such a degree
that continued adherence to a forced busing remedy would
serve no desegregative purpose. Certainly, if, in the wake
of white flight or demographic shifts, black children are
being bused from one predominantly black school to another,
- 15 -
the school system should not be required to continue such
assignments. A request by the local school board to reopen
the decree in such circumstances would be appropriate in
my view, and the Justice Department might well not
oppose such a request so long as we are satisfied that the
three remedial objectives discussed above will not be compromised.
There is another dimension to the Administration's
current school desegregation policy that deserves mention.
Apart from the issue of unconstitutional pupil assignments,
experience has taught that identifiably minority schools sometimes
receive inferior educational attention. Whatever the ultimate
racial composition in the classroom, the constitutional
guaranty of equal educational opportunity prohibits school
officials from intentionally depriving any student, on the
basis of race, color, or ethnic origin, of an equal opportunity
to receive an education comparable in quality to that being
received by other students in the school district.
Deliberately providing a lower level of educational
services to identifiably minority schools is as invidious as
deliberate racial segregation. Evidence of such conduct by
state officials might include disparities in the tangible
components of education, such as the level and breadth of
academic and extracurricular programs, the educational achievement
and experience of teachers and administrators, and the size,
agu, and general comditions of physical facilities.
- 16 -
Indeed, Swann itself held that, independent of student
assignment, where it is possible to identify a black school
"simply by reference to the racial composition of teachers
and staff, the quality of school buildings and equipment, or
the organization of sports activities, a prima facie case of
violation of substantive constitutional rights under the
Equal Protection Clause is shown." 402 U.S. at 18. The
Court explained that the proper remedy in such cases is to
"produce schools of like quality, facilities, and staffs."
Id. at 19. Despite the recognition of this constitutional
right by a unanimous Court in Swann, suits have rarely been
brought to redress such wrongs.
In pursuing constitutional violations of this kind,
the Justice Department in no way intends to second-guess or
otherwise intrude into the educational decisions and policymaking
of state education officials. That function, as I have
previously made clear, is reserved to the states. And in many
cases substantial disparities in the tangible components of
education may well be attributable to legitimate, racially
nondiscriminatory factors. But when such disparities are the
product of intentional racial discrimination by state officials,
can it seriously be maintained that the educationally disadvantaged
students are being afforded equal protection of the laws? Our
future enforcement policies will be aimed at detecting and cor-
recting any such constitutional violations wherever they occur.
- 17 -
In sum, the Administration remains firm in its resolve
to ferret out any and all instances of unlawful racial segregation
and to bring such practices to a halt. We do not believe
that successful pursuit of that policy requires resort to a
desegregation remedy known from experience to be largely
ineffective and, in many cases, counterproductive. The
school desegregation amendments that have been proposed during
this Congress suggest a similar attitude on the part of
a number of members of the House. To the extent that those
proposals seek to restrict the use of mandatory student transpor-
tation as a tool of school desegregation, they reflect the
thinking of the Administration in this area.
In closing, let me state that this Administration will
tirelessly attack state-imposed segregation of our Nation's
public schools on account of race, color or ethnic origin.
The Department's mission continues to be the prompt and
complete eradication of de jure segregation. While the
relief we seek may differ in certain respects from the
remedies relied upon by our predecessors, the Department
of Justice will not retreat from its statutory and consti-
tutional obligation to vindicate the cherished constitutional
guaranty of equal educational opportunity.
Thank you. Mr. Chairman, I would be happy to respond
to questions that you or other members of the Subcommittee
may have.
DOJ-1981-11
N.I.E., Room 711-N
19th and M Streets, NW
Washington, DC 20208
23 September, 1982
Thank you for the material from Jim Stedman re my busing proposal.
My responses are below:
1) CRS-4 "majority to minority transfer" - this would also be vice versa.
I appreciate Mr. Stedman's research analysis concerning whether
the bill would be unique in that he states: "the remedy
feature of the bill sets it apart from present bills not
only because this particular remedy is offered, but also
because any remedy is offered."
It would be a free-standing statute (requiring only a simple
majority) as opposed to an amendment.
2) CRS-5 No, the bill would not limit courts' jurisdiction, but
only the use of one remedy which racially discriminates.
This would be similar to Congress enacting a law allowing
or disallowing capital punishment without limiting the
courts' jurisdiction or ability to deal in other ways
with capital crimes.
Because the objective of the bill is to end a racially
discriminatory remedy, it would have to apply to all
governing bodies (e.g. what good would it do to prohibit
courts from using a discriminatory remedy while allowing
a racist school board to discriminate in its remedy?).
Re "neighborhood school,' the proposal says that one cannot
be prevented from attending his/her neighborhood school,
but this does not mean one necessarily has a pre-emptive
right to attend the school nearest his/her home.
3) CRS-6 Yes, a school system would have flexibility to alter grade
structure, etc., and thereby change the definition of
"neighborhood school."
Yes, the proposal would have to be "retroactive" or it
would be unconstitutional in that the law would not apply
to everyone equally.
(continued)
(CRS-6 continued)
Re "majority to minority transfer," this would also be
vice versa, and yes, this right would be predominant.
4) CRS-7 The bill should specify that the transfer right is predominant.
Concerning the hypothetical conflict between one's right
to attend one's neighborhood school and one's right of
transfer, 2 or 3 comments are in order. First, there is
flexibility in the term, "neighborhood school." Second,
I stressed earlier that one's right not to be prevented
from attending one's "neighborhood school" is not exactly
the same as saying one has an absolute right to attend
his/her "neighborhood school." The potential controversy
raised is a non-issue as the overwhelming evidence has
shown that people choose to attend their own "neighborhood
school" when they are guaranteed to their own satisfaction
that they are receiving equal educational opportunities.
Thus one will not see large numbers of individuals displaced
from their neighborhood schools by students transferring,
because even in a worse case scenario, every individual
will be guaranteed to his/her own satisfation that each
is receiving an equal educational opportunity in his/her
"neighborhood school.'
No, I do not intend the proposed solution to apply to all
instances of busing for the purpose of desegregation.
However, the fact of the matter is that courts have
constantly expressed their disapproval of busing schemes
that only result in "token integration," and thus nearly
all desegregation busing orders are of some "racial
balance "variety.
5) CRS-8 Even if the proposed remedy failed to "desegregate" a
"discriminatory" school system, it would only be because
those of every race were satisfied they were receiving
an equal educational opportunity and they would feel
that was most important; otherwise they would exercise
their right of transfer. Besides, this is no longer a
controversy as "achievement," "equal educational opportunity,"
etc. have been long recognized as the objectives of
desegregation (e.g. blacks did not pursue court cases to
gain an inferior education). To say "integration" against
the will of all races in a particular situation is required
by the courts is to imply that blacks could be forced to
attend inferior schools and that was not the intent of
Brown V. Board of Education.
(continued)
(continued)
6) CRS-9,10 and 11 - the examples covered on these pages are
misleading based upon an inaccurate definition
of the word, "minority." Although the proposal's
purpose is primarily to end the discrimination
against blacks in racial balance remedies (because
blacks are usually the "minority "race, the bill
would end discrimination against any race in
minority in any given situation. Thus, except
in those rare instances where the racial
proportions are exactly equal, one race is
by definition in the "minority," and in any
racial-balance busing remedy, that race would
bear a discriminatory burden. The importance
of this fact lies in the recent Supreme Court
busing case (Washington), where the Court
indicated that any desegregation remedy which
unfairly burdened one race (any race) should
be terminated.
Yours sincerely,
Dennes L. Cuddy
Dennis L. Cuddy, Ph.D.
Senior Associate, NIE
A Solution to Forced Busing
By D. L CUDDY
A cartoon recently showed Speaker
inatory Forced Busing of Minorities":
CONGRESSIONAL RESEARCH
of the House Tip O'Neill sitting on
Senate anti-busing bills which had
1. Whereas we live in an open socie-
come to the House. While it is clear that
ty, nothing should be done to prevent
SERVICE Specialist in
the Democratic leadership in the House
the voluntary integration of schools;
Education has stated:
has serious reservations about these
2. Whereas, however, forced busing
bills, it is equally clear from opinion
to achieve racial balance discriminates
polls that a majority of blacks and
against minorities (defined as those of
"The remedy feature of
whites oppose forced busing. The na-
the minority race within the school sys-
tionally prominent black syndicated
tem) because the minority population
the bill sets it apart
columnist for the Washington Post,
must be bused in inverse proportion to
from present bills not
William Raspberry, recently published
the majority race's population, forced
a column asking whether there was not
busing to achieve racial balance will be
only because this
a better way of guaranteeing equal
prohibited and no individual of any
educational opportunity to those of all
race will be denied the right to attend
particular remedy is
races.
her or his neighborhood school; but
Well (no presidential pun intended),
3. To insure that the termination of
offered, but also
I believe I have developed a solution
forced busing to achieve racial balance
that will satisfy nearly everybody,
because any remedy
does not result in coercive resegregation
including the courts and the black
of schools and unequal educational
is offered."
leadership in this nation. Congress
opportunities for students of any race,
might simply enact the following free-
any student will have the predominant.
standing statute, applicable retro-
first choice and free transportation
actively so as to apply to everyone
right to attend a school in another
equally, entitled: "To End the Discrim-
neighborhood inhabited predomi-
nantly by those of another race, when a
Dr. Cuddy is a senior associate with the Depart-
court has determined that intentional
ment of Education's National Institute of Edu-
racial discrimination in educational
cation. This article was written by Dr. Cuddy in
opportunities has occurred.
his private capacity. No official support or
endorsement by NIE is intended or should be in-
At first glance, this proposal seems
ferred.
simplistic; but I will explain below why
Mr. Cuddy believes his proposal to end arbitrary court-ordered school busing-op-
posed by nearly everyone-would help to guarantee black children alternative means
of quality education.
12 / Human Events / OCTOBER 30 1982
this bill should satisfy nearly everyone
The key here is that the decision re-
Further to my article, "A
concerned with this issue.
garding satisfaction that equal educa-
The purpose of this bill is to protect
tional opportunities are being
Solution to Forced Busing"
minority rights. Court-ordered racial
guaranteed is in the hands of blacks
balance busing denies blacks equal pro-
themselves, and not in the hands of
(HUMAN EVENTS, October 30), the
tection of the law. Because the courts
possibly racist school boards. There-
do not allow "token" integration, most
fore, if the school in a particular black
all forced school desegregation
neighborhood is inferior, then every
success of this proposed solution
remedies call for system-wide balanced
black student IS guaranteed the right
integration.
and transportation to attend a superior
to forced busing greatly depends
However, this means that if a system
school in a predominantly white neigh-
is 90 per cent white and 10 per cent
borhood.
on whether it would be accepted
black, then only 10 per cent of the white
Thus, there could be even more inte-
students must be transported, but 90
by the Supreme Court. In that
gration than under court-ordered racial
per cent of the black students must be,
balance busing. However, if black par-
regard, the Court's recent de-
to achieve system-wide balanced inte-
ents in a particular neighborhood feel
gration. This is flagrant discrimination
their school is superior, then they have
cision regarding the state of
against blacks, just as if a court ordered
the right to inform a judge or anyone
90 per cent of America's black youth
else of authority that he or she cannot
Washington's busing case offers
drafted into the Army, but only 10 per
take their children against their will and
cent of this country's white youth
bus them, in disproportionate numbers
much hope.
drafted, so that there would be an equal
to white students, from a superior
number of blacks and whites in the ser-
school to an inferior one. That is not
Writing for the Court, Justice
vice.
what the civil rights movement has been
The solution I propose should also
all about. In fact, such discriminatory
Harry Blackmun said: "In our
satisfy the courts because they would
action by judges amounts almost to a
return to the days of slavery in this
view, Initiative 350 must fall
still remain involved in determining
where equal educational opportunities
country.
because...it uses the racial
have been denied on the basis of race.
If there is a case of coercive action
They would not, however, have the
which inhibits blacks from exercising
nature of an issue to define the
right to burden blacks especially by
their "first choice" rights and thereby
findings of discrimination imputed
leads to the maintenance of inferior
governmental decision-making
from some affirmative action-type
schools in minority neighborhoods,
numbers game. But the courts would
then a judge could simply levy fines
structure, and thus imposes
have enforcement authority regarding
against those responsible until the court
the "first choice and free transporta-
determines that all schools within the
substantial and unique burdens
tion" provisions of the law if passed.
system are equal.
Also, the courts' jurisdiction would not
Because my proposal protects
on racial minorities." In effect,
be limited any more than any other con-
minority rights, allows the courts to re-
gressional statute (e.g. disallowing
main involved in determining where
the Court is saying that any de-
capital punishment) concerning judicial
racial discrimination in education has
latitude would limit the courts.
occurred and in eliminating such dis-
segregation remedy which unfairly
The black leadership of the nation
crimination, would end the discrimina-
tory burden on blacks of racial balance
burdens one race should be dis
should be satisfied with my proposed
solution, because unlike "freedom of
busing, would place the decision
allowed. And since perhaps the
choice" where blacks might be told that
regarding satisfaction of guaranteed
schools in white neighborhoods are
equal educational opportunities in the
majority of court-ordered busing
already filled or that they might have to
hands of blacks and whites themselves,
would not disallow alternatives to
attend those schools at their own trans-
rulings involve "racial-balance"
portation expense, the solution I am
forced busing (e.g. magnet schools) to
proposing guarantees the right of all
end unlawful segregation, and would
remedies which, by definition,
black students to attend a school in a
allow for more integration, I believe
predominantly white neighborhood
this is as close to a panacea as this na-
unfairly burden minorities, it
even before the white students of that
tion will come regarding an issue on
seems clear that the Supreme
neighborhood may attend that school,
which the majority of all races agree.
and free transportation is guaranteed as
And that agreement is that court-
Court now might be ready to end
well.
ordered racial balance busing is op-
forced racial-balance busing in
Thus, even in a worst-case
posed by nearly everyone, and should
scenario where a white racist
be ended as long as there is an alterna-
this nation. That is why the
school board may contemplate dis-
tive means of guaranteeing black chil-
criminating against blacks, with
dren equal educational opportunities,
sooner someone in Congress intro-
"first choice and free transporta-
and my proposal would help do just
tion" guaranteed, all school
that. If only someone in Congress will
duces my proposed solution, the
boards will in their own self-
now introduce this legislation, forced
better.
interest see to it that schools in pre-
busing could be ended to the satisfac-
dominantly black neighborhoods
tion of nearly everyone involved.
D. L. Cuddy
receive equal, if not superior, facil-
ities, teachers and appropriations.
OCTOBER 30, 1982 / Human Events / 13
Congressional Research Service
The Library of Congress
Washington, D.C. 20540
September 13, 1982
FROM
: Jim Stedman
Specialist in Education
Education and Public Welfare Division
SUBJECT : Constituent's Anti-busing Proposal
This memorandum was prepared in response to your request of August 23, 1982,
concerning the busing bill (entitled "To End the Discriminatory Forced Busing of
Blacks") proposed by your constituent Dr. D.L. Cuddy in his paper, "A Solution
to Forced Busing." As discussed with your legislative aide, Ms. Trudy Wright,
this memorandum will consider the following:
(1) the proposal's similarity to bills already before the House
Judiciary Committee; and
(2) questions raised by the bill that may possibly merit further
consideration.
This memorandum neither endorses nor rejects Dr. Cuddy's proposal; rather, it
places the proposal in the context of current legislation and identifies certain
issues that may be relevant to further consideration of the bill.
The Proposal
Before considering the similarity of the proposal to current bills, it is
necessary to present an outline of Dr. Cuddy's proposal as we read it. The bill
presents what may be characterized as findings of fact and a series of resulting
limitations of the use of mandatory busing to achieve school desegregation.
CRS-2
First, the hill states that because "we live in an open society, nothing
should be done to prevent the voluntary integration of schools." Second, the
bill presents the finding that mandatory busing for racial balance is dis-
criminatory against blacks because they "must be bused in inverse proportion
to the majority race's population." As a result of this finding, the bill
would prohibit mandatory busing for "racial balance" and would establish that
the right of individuals to attend their neighborhood schools cannot be denied.
This, in essence, would establish a right to neighborhood attendance. Third,
in order to avoid "coercive desegregation" and "unequal educational opportuni-
ties," all students would have "first choice" and free transportation to attend
schools in other neighborhoods "inhabited predominantly by those of another
race." This right of transfer would be afforded students only in the event a
court had determined that the school system was discriminating on the basis of
race.
The bill's main features are (1) the prohibition of mandatory busing to
achieve racial balance; (2) the creation of a right to neighborhood attendance;
and (3) the establishment of voluntary transfer as the remedy for courts to im-
pose when they find racial discrimination in a school system.
Current Proposals in the House
Although Dr. Cuddy's bill as presented does not define a neighborhood
school, we have assumed for purposes of this section that such a school is
the one nearest a child's place of residence that offers elementary or secon-
dary education at the child's appropriate grade level. Using this assumption,
it appears that Dr. Cuddy's bill partially duplicates bills already before the
CRS-3
House. For example, H.J. Res. 28 (Representative Emerson, January 5, 1981) pro-
poses an amendment to the Constitution providing that:
No student shall be compelled to attend a public school other than
the public school nearest to the residence of such student which
is located within the school district in which such student resides
and which provides the course of study pursued by such student.
Also, H.R. 2047 (Representative Moore, February 24, 1981), entitled the "Neigh-
borhood School Act of 1981," would, among its various provisions, prohibit any
court of the United States from ordering the assignment or transportation of any
student to a school other than the one nearest the student's home, with certain
exceptions. 1/ Parenthetically, it should be noted that it is not evident
whether Dr. Cuddy's bill is proposing an amendment to the Constitution, or free-
standing legislation. This issue is considered in the next section.
If one broadens the definition of the right to attend the neighborhood
school to include the proposition that no child can be assigned by a court of
the United States to attend a particular school on the basis of race, then the
number of bills similar to this aspect of Dr. Cuddy's proposal grows signifi-
cantly larger. 2/
What appears to distinguish Dr. Cuddy's proposal from most introduced in
the House during the 97th Congress is the remedy feature. Dr. Cuddy would
establish as a right for students in districts adjudicated to be discriminatory
1/ H.R. 2047 is the House companion bill to S. 528 (Senator Johnston,
February 24, 1981) which in a slightly modified form was approved by the Senate
as an amendment to S. 951, the FY 1982 Department of Justice appropriations
authorization bill. See the Congressional Rsearch Service (CRS) issue brief on
school busing (IB 81010) for further details.
2/ See CRS issue brief IB 81010 for a listing of some of these legislative
proposals.
CRS-4
& vice versa
what may be called "majority-to-minority"transfer. Students of the race
which is in the majority in a school would have the right to transfer to any
school in which their race would be in the minority. The remedy feature of
the bill sets it apart from present bills not only because this particular
remedy is offered, but also because any remedy is offered. It could be
argued that H.R. 2047, cited above, does establish or maintain a remedy for
school desegregation by not prohibiting busing altogether, but rather
limiting its application.
Questions
Dr. Cuddy's bill raises a number of questions that may merit some consider-
ation. These are presented below in no particular order. Following each ques-
tion is a brief discussion of it.
(1) Is the proposed bill intended to offer an amendment to the Constitu-
tion or a free-standing statute? (simple majority)
The 97th Congress, particularly on the Senate side, has been engaged in a
lengthy debate over anti-busing legislation (the amendment to S. 951, cited
above) which would impose limits on the busing that courts of the United States
could order. The legislation seeks to accomplish its ends through statutory
means, not by means of a constitutional amendment. Critics have charged that
this is a "backdoor" effort to "amend" the Constitution without following the
amending process provided in the Constitution. In addition, they argue that
the legislation is unconstitutional, exceeding whatever powers under the Con-
stitution the Congress might have to affect U.S. court jurisdiction and con-
stitutional remedies. Supporters of the legislation, on the other hand, argue
3/ H.R. 5200 (Representative Young, December 11, 1981) is similar in this
regard to H.R. 2047.
No not limit jurisdiction
CRS-5
only limit one remedy, just
as Congress may pass law ne
that such legislation is clearly within the powers granted to the Congress under
capital
the Constitution and that, with regard to this specific proposal, a remedy is
being limited, not removed entirely.
without limiting counts ability punishment to deal other h
It would appear that Dr. Cuddy's proposal, if it is intended to be a free-
standing statute, would generate much of the same sort of controversy that has
ways
with
marked the anti-busing debate in this Congress over S. 951. Also, the proposal capitar
would not limit a remedy, but would prohibit this specific remedy (mandatory
drimes
busing) entirely, an aspect of the proposal which would generate additional de-
bate and raise further questions about its constitutionality.
(2) Is the bill intended to apply only to courts?
It is not clear from the proposed language whether the bill is to limit
yes
only the actions of courts, or actions of State governments, or actions of
X
local school boards as well. In addition, the bill does not specify to which
courts it might apply--the lower Federal courts, the Supreme Court, or State all
courts? Clarifying the sweep of the proposal is necessary before one can con-
sider its potential impact on such things as State and local control of educa-
tion, or its constitutionality.
(3) How is the term "neighborhood school" to be defined in the context of
the bill?
Although a definition of "neighborhood school" (nearest school offering the
appropriate grade) was assumed in the preceding section for the purposes of com-
paring Dr. Cuddy's proposal to current bills, even this definition may need some
refinement to address some of the more basic questions that arise in this con-
text.
Yes, meaning consto can't prevent
someone from going to his/her
neighborhood school.
CRS-6
Would the definition of the neighborhood school permit flexibility, that
is, could a school system change a child's neighborhood school by changing the yes
grade structure in its schools? The school nearest a fifth grade child's home
may in one year offer grades K-6, but, under a desegregation plan, be converted
into a school offering only K-3. Would the assignment of the child to another
school offering grades 4-6 but located farther from home violate the limitations
in Dr. Cuddy's bill? To some families the "neighborhood school" may not neces-
sarily be the one nearest the family's home, but rather the one in the atten-
dance zone of which the family resides. Would Dr. Cuddy's bill permit the mod- Yes
ification of attendance zones?
(4) Is the proposal retroactive? yes, or would be unconstitutionalin that
There is no language in the bill concerning to
the its law application wouldn't apply school to de- everyone
segregation plans and court orders already entered and being implemented. The equally
issue of retroactivity is controversial and complex. It raises questions about
such things as the finality of long-standing desegregation plans, the extent to
which communities might have to return to the status quo ante as they dismantle
desegregation plans, and the fairness of applying different standards to differ-
ent school districts.
(5) Does the right to attend one's neighborhood school conflict with the
avice versa
right to majority-to-minorityAtransfe in a school district adjudicated to be
discriminatory?
The bill does not state how a school system can guarantee these two rights
when they come into conflict. For example, a school at full capacity with
neighborhood children might be faced with additional children seeking entrance
who are exercising their right to transfer. Although in the body of his report,
Dr. Cuddy describes the majority-to-minority transfer right as predominant, the
Yes.
CRS-7
st should
bill, on its face, does not make such a distinction. It should be noted that
Dr. Cuddy's reading of his bill in this regard suggests that not only is the
right to attend a neighborhood school not absolute, but that the bill's re-
quirement that "nothing should be done to prevent the voluntary integration
of schools" might be limited as well. A child denied a seat in his neighbor-
hood school because another child has exercised his own right to transfer is
subject to a degree of coercion perhaps not in keeping with the bill's goal of
voluntary school desegregation.
hypothetical problem willnot arise
(7) What is meant by the phrase "forced busing to achieve racial balance?"
This is a critical question that would perhaps be best considered in a
legal analysis. Nevertheless, some points can be made here that might be help-
ful for a more general consideration of Dr. Cuddy's bill. The proposal would
prohibit "forced busing to achieve racial balance." "Racial balance" has
been described elswhere as refering "to a precise racial representativeness in
a school's enrollment or other population" (such as faculty). (Meyer Weinberg,
"A Practical Guide to Desegregation: Sources, Materials, and Contacts,"
Vol. IV of Assessment of Current Knowledge About the Effectiveness of School
Desegregation Strategies, Institute for Public Policy Studies, April 1981, pre-
pared under contract with the National Institute of Education and the Office
for Civil Rights.)
Does Dr. Cuddy intend the phrase "forced busing to achieve racial balance"
No
to apply to all instances of mandatory busing for desegregation, or only those
instances in which it can be shown that a proportional. balance of majority and yes
minority children is sought in each school in a system? Dr. Cuddy's analysis
of his proposal suggests that he intends the term is to encompass nearly all
instances of mandatory busing, largely because he argues that "most court-
ordered desegregation remedies call for system-wide balanced integration." Toben
has been rejected integration
CRS-8
Actually, court-ordered school desegregation plans vary markedly from school
system to school system. While some indeed reflect Dr. Cuddy's characteri-
zation of busing, some few do not. It would, therefore, be possible to read the
bill as affecting only some mandatory busing plans. Among the works that
might be consulted in this regard is "Busing and the Lower Federal Courts" by
Charles V. Dale, legislative attorney in the Congressional Research Service's
American Law Division. Dale's analysis appears on pages 637-667 in the volume
of hearings before the House Subcommittee on Civil and Constitutional Rights,
entitled "School Desegregation" (serial no. 26, 97th Congress, 1st session).
(8) What would the proposal permit if the allowable remedy (majority-to-
minority transfer) fails to desegregate a discriminatory school system?
In the event that a school system were required to offer the majority-to-
minority transfer option by a court, but none or few students exercised that
option and the system remained segregated, would the court or school board be
permitted to employ mandatory assignment options, such as redrawing of atten-
dance zones, or the pairing and clustering of schools? Dr. Cuddy argues that
the imposition of the transfer option on a school system that wanted to remain
segregated would lead to the system directing additional resources into cer-
tain schools in order to forestall children from exercising the tranfer option.
This suggests that Dr. Cuddy's proposal considers the improvement of educa-
tional quality for segregated students to be a legally sufficient remedy for
school segregation. This is highly controversial issue that involves debate
over, among other issues, what Brown V. Board of Education (347 U.S. 483)
requires of school systems to guarantee equal educational opportunities to
minority group children.
This controvery is being resolved
that "achievement, "equal educational opportunity "etc. are
the goal is to imply blacks could be ordered into inferior
the goals. To say "integration" against the will of all racesis
CRS-9
At another point in his paper, Dr. Cuddy states that "[i]f there is a
case of coercive action which inhibits blacks from exercising their 'first
choice' rights and thereby leads to the maintenance of inferior schools in
minority neighborhoods, then a judge could simply levy fines against those
responsible until the court determines that all schools within the system
are equal." This statement clearly places the desegregation of schools in
a second priority position. It also finds no reflection in the language of
his proposal.
(9) Do efforts to achieve a racial balance always discriminate against
black children "because the minority population must be bused in inverse pro-
portion to the majority race's population?"
This is one of the premises stated in Dr. Cuddy's proposal and from it
flows his prohibition against mandatory busing for racial balance. The ques-
tion of racial balance has been discussed above (question 7). The logic of
this premise is explored below.
The degree to which minority group children will have to be reassigned,
relative to the reassignment of white children, in an effort to achieve a
strict racial balance in schools, depends upon the specific distribution of
children within a particular system's schools. The burden of reassignment
need not be invariably imposed unequally on blacks. In systems that are
evenly divided between blacks and whites or predominantly black, the mathe-
matical logic of reassigning children to achieve precise racial balance per-
mits that, in the first instance, equal percentages of blacks and whites might
be reassigned, and in the second instance, a smaller percentage of blacks
might be reassigned. Consider the following examples. If a system with 100
white children and 100 black children had two schools, one entirely white and
one entirely black, to achieve a racial balance in these two schools one of
CRS-10
several reassignment strategies could be followed. Half of the students in
each school could be reassigned to the other--the same number and percentage
of children from each race would be reassigned. Or, one of the schools could
be closed and all the children of that one reassigned to the other--the burden
could be either on black children or white children. Or, the enrollment of
one school could be increased and the other decreased. For example, the black
school's enrollment could be raised to 150. To achieve a racial balance, 25
black children would be reassigned to the white school and 75 of the white
children would be reassigned to the black school. The schools would now be
balanced- the former black school would have 75 blacks and 75 whites, the
former white school would have 25 blacks and 25 whites. In this instance 25
percent of the blacks and 75 percent of the whites would have been reassigned.
To take another hypothetical example, in a predominantly black system
with 600 students, 350 (58 percent) of them black, and 250(42 percent) of
them white, 300 of the black students attend one school as do 20 of the whites.
That school is 94 percent black. In the system's only other school, 50 blacks
are enrolled and 230 whites. The school is 82 percent white. To balance such
a system with each school having a 58 percent black and 42 percent white stu-
dent body, 113 of the black students could be reassigned from the black school
to the white school, and 113 of the white students could be reassigned from
the white school to the black school. In the black school there would now be
187 blacks and 133 whites (58 percent black/42 percent white). In the former
white school, there would be 163 blacks and 117 whites (58 percent black/42
percent white). Here the burden falls disproportionately on the white
students-32 percent of the blacks were reassigned, while 45 percent of the
whites were reassigned.
CRS-11
Clearly the variations that one might consider are endless and can be
made increasingly complex. A premise that black students are likely to ride
buses for desegregation purposes in disproportionate numbers may be correct
given the experience with actual desegregation plans, but an effort to
achieve a racial balance in a school system does not mathematically dictate
that blacks will be reassigned in inverse proportion to their representation
in the system or that they will be the group more burdened by reassignment.
This is specious as in only those rare
systems of equal balance racially there
would be no burden on one race
the other. Whether a system is
or 70% white & 30% black or 70 % block
230% white, the "minority" (whether
white or black) always bears a Leavier
burden & is the denied the equal
protection of the law based an race.
In the latest Supreme Court case, the
court said any remedy thaterefaily
burdens any nace should be terminated