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Busing (3)
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16978665
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Busing (3)
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James M. Cannon Files (Ford Administration)
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The original documents are located in Box 5, folder "Busing (3)" of the James M. Cannon 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 Gerald Ford donated to the United States of America his copyrights in all of his unpublished writings in National Archives collections.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 5 of the James M. Cannon Files at the Gerald R. Ford Presidential Library THE WHITE HOUSE WASHINGTON June 1, 1976 MEMORANDUM FOR: DICK CHENEY JIM CANNON FROM: PHIL BUCHEN SUBJECT: Meeting by the President with Roy Wilkins and others from the Leadership Conference on Civil Rights At your request, I was able to reach Roy Wilkins by telephone on Saturday, May 29. I advised him that the President could not meet with his group before the Levi decision was made but that the President did want to hold the meeting. I told Mr. Wilkins I thought I could call this week to advise him on approximately when the meeting could be scheduled. It occurs to me that we should hold this meeting before the President announces his legislative initiative on busing. Mil arm FORD & LIBRARY 038870 DECISION THE WHITE HOUSE WASHINGTON May 25, 1976 MEMORANDUM FOR THE PRESIDENT FROM: JIM CANNON SUBJECT: Request by Roy Wilkins for a Meeting to Discuss School Desegregation Roy Wilkins has requested that you meet with a delegation representing the leadership conference on Civil Rights to discuss the Administration's school desegregation posture. It is apparent that he wants to discuss the Boston case. It is our understanding that the Supreme Court has indicated to the Justice Department that, if it is going to file a brief in the Boston case, it must do so by the end of the week, not later than Friday morning. While your senior advisers are agreed that you should meet with Wilkins and his delegation, we are not agreed as to the timing of such a meeting. There are two options: 1. Meet with Wilkins on Thursday, May 27. This would be responsive to Wilkins' request and would afford you an opportunity to explain to him personally your view on this matter, the substance of your conversation with the Attorney General, and your desire to establish a con- tinuing dialogue on school desegregation matters. On the other hand, the Attorney General points out that meeting with this group would require you to meet with all other groups involved in the case and "disfigure the Justice Department's decision." Moreover, he states that such a meeting would be "outrageous and shocking." Given the lateness of the hour, if the Justice Depart- ment files in the Boston case on Friday morning, FORD GERALD it could and would be interpreted as a slap in the face to the Civil Rights group. 2. Meet with Wilkins after the Justice Department's decision has been made. This would preserve the integrity of your decision to allow the Attorney General to deter- mine whether it would be appropriate for the Administration to intervene in the Boston case. It would also allow you to broaden the scope of your discussions with the group to school desegregation in general, in just the Boston case. On the other hand, a refusal to meet with Wilkins before the Boston decision is made will probably evoke substantial criticism of the Administration and you personally from the Civil Rights community. It is possible that this group might even refuse to meet subsequent to a decision to enter the Boston case. STAFF RECOMMENDATIONS: Option 1: Marsh Option 2: Levi, Cannon, Schmults, O'Neill If you choose Option 2, you may wish to telephone Wilkins to inform him of your decision to meet after the Attorney General has made his decision and to discuss the broad range of issues involved in school desegregation. DECISION Option 1: Meet with Wilkins on Thursday, May 27. YES NO Option 2: Meet with Wilkins after the Justice Department's decision has been made. YES NO FORD & LIBRARY TEXT OF TELEGRAM President Gerald Ford White House, D.C. Urgent that a delegation of our national leaders meet with you to discuss the school desegregation posture of your Administration and its implications. It would be tragic for our nation if this issue became involved in the politics of the Presidential campaign. Tragic, too, if your statements were miscontrued and stiffened resistance to law and order. Mr. President, we are ready to meet with you immediately. Roy Wilkins, Chairman Leadership Conference on Civil Rights 2027 Massachusetts Ave., N.W. Washington, D.C. 20036 and 1790 Broadway, New York, N.Y. 2 3 4 5 6 The quilite House ACTION 1 T/D 2 SCHEDULE DD 3 #HA#11(1334) 62 #33287E142)PD 85/21/76 1333 21 PM 5 RFG EIVED 1976 MAY 5 ICS IPMMTZZ CSP MAY 21 1976 6 7 2823335581 TDMT WASHINGTON DC 66 #5-21 #133P EST MESSAGE 8 PMS PRESIDENT GERALD FORD SPEAKERS BUREAU 9 OTHER 10 WHITE HOUSE DC OFFICE 11 URGENT THAT A DELEGATION OF OUR NATIONAL LEADERS MEET WITH-YOU TO 12 13 DISCUSS THE SCHOOL DESEGREGATION POSTURE OF YOUR ADMINISTRATION AND 14 ITS IMPLICATIONS. IT WOULD BE TRAGIC FOR OUR NATION IF THIS ISSUE 15 16 BECAME INVOLVED IN THE POLITICS OF THE PRESIDENTIAL CAMPAIGN. 17 TRAGIC, TOO, IF YOUR STATEMENTS WERE MISCONSTRUED AND STIFFENED 18 19 RESISTANCE TO LAW AND ORDER. MR. PRESIDENT, WE ARE READY TO MEET FORM 0805 PRINTED'ST THE STANDARD REGISTER COMPANY, U. $. S.A. 20 WITH YOU IMMEDIATELY 21 GERALD R. 22 ROY WILKINS CHAIRMAN LEADERSHIP CONFERENCE ON CIVIL RIGHTS 23 2027 MASSACHUSETTS AVE NORTHWEST WASHINGTON DC 20036 AND 1790 FORD 24 25 BROADWAY NEW YORK NY 26 NNNN THE WHITE HOUSE WASHINGTON June 1, 1976 MEMORANDUM FOR THE PRESIDENT FROM: Phil Buchen and Jim Cannon 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. " 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 ward 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 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 eliminate the effect of such act or acts specifically directed at particular individuals. - 4 - 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, the Court finds that the act or acts of unlawful discrimination increased the degree of racial or ethnic con- centration 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 a 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 - 6 - 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 7 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 - 8 - by section 107, the court shall conduct a review every three years to determine whether each such provision shall 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 Instructs Sec. 201. Appointment of mediator. The Attorney General is hereby authorized to appoint, 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. (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. FORD & LIBRARY GEBALD - 9 - Sec. 203. Dye ords 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 Council of citizens composed of the leaders of the community. The Council 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. B MESSAGE TO CONGRESS I know I am speaking for the vast majority of Ameri- cans when I say we desire that the causes and effects of unconstitutional racial discrimination in our school systems must be removed. The process by which these causes and effects are remedied 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, whole-hearted compliance with non-discriminatory practices, practices we all accept because they are right. The public school sys- tem has been one of America's greatest assets. The desire for quality education is deep in the heart of American par- ents and children. And the long-standing 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 ALD - 2 - which properly reflect diverse communities' ideas about the appropriate structure of the educational process. On the long and difficult road our society has tra- veled in attempting to remove the causes and effects of racial discrimination there has at times been illegal re- sistance 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 fed- eral government certainly will not condone them. The law will be enforced. During this period it is inevitable that the deci- sions of federal district judges, faced with the arduous and often unpleasant duties of overcoming resistance, will have elements of artificiality in them. The Supreme Court has written that the remedy "may be administratively awk- ward, inconvenient, and even bizarre in some situations" (Swann V. Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 28 (1971) ) In many cases, judges have had to do things which under our system of government would better be accomplished by elected officials. - 3 - 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. 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 purpose of court ordered busing should not be to achieve a racial balance within schools which would not have occurred through the normal enrollment pattern in the absence of unconstitutional acts of school discrimination. I have always been philosphically opposed to court ordered busing, but I realize that in some cases it is constitutionally required under the opinions of the Supreme Court. But, as Congress recognized in passing the Equal -4- Educational Opportunities Act of 1974, Pub. L. 93-380, 88 Stat. 514 et seq., 20 U.S.C. (Supp. IV) 1701 et sea. , there are other remedies that may be used to achieve the elimination of the effects of racial discrimination and these other remedies should 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. Busing is not a good mechanism. Many of the federal district court judges who have ordered busing have stated publicly that it is not a desirable mechanism and that it is a mechanism of last resort. While busing may be constitutionally required, it still makes a great deal of difference to communities and the people in them how much busing will be used, and this in large part depends upon the legal theory upon which the relief for unconstitutional acts of racial discrimination is based. I do not believe we can eliminate all busing, but I do believe we can considerably reduce its use while FORD - 5 - still achieving the elimination required by the Constitu- tion of the effects of illegal race discrimination. 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) / 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 - 6 - 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." The second Brown case stated 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 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 prom- ises 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 "realistically work now"? Many judges and courts thought at first - 7 - 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 practices 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 con- tinuing effects of past racial discrimination created problems -8- that continue to confront the Nation. What are those "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 discrimination. 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. 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, - 9 - color, national origin or sex. Neither the Constitution nor the traditions 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. Only to the extent that unconstitutional official acts of race discrimination in the schools have created an artificial racial balance does the Constitution require remedial steps to create the racial balance in particular schools that would have occurred but for the illegal acts. 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 - 10 - ambiguities. These ambiguities become of overriding 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 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 discrimination 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 presumption? It means, at a minimum, that the court should assume that acts of dis- crimination 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 discrimination? 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 - 11 - school should mirror the racial composition of the school district. The ambiguities, standing by themselves, make it difficult to determine what the remedy should be designed to accomplish. The difficulty is compounded by the dis- cretion 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, combined with the factual complexity of each new case, make it diffi- cult for the district court to devise a remedy and even more difficult for appellate courts effectively to supervise the actions of the district court. 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 some kind of racial balance in the schools even if the racial distribution would have occurred without 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. It is the constitutional goal which the Supreme Court has mandated, but its appli- cation has been made difficult by the ambiguities discussed above. 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. - 13 - Any legislation should make it clear that "desegregation" means only the elimination of the effects of racial discrimination 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 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. 3601 et seq. Racial dis- crimination in housing should be attacked directly and elim- inated 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 im- pact 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. - 14 - 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. "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 attributes that make a system illegally operated can often be eliminated without an insistence upon a racial composition in each school that in some degree reflects the racial composition of the school district as a whole. - 15 - The objective of an order altering the racial or ellinic student composition of schools should be to recreate that student composition of each particular school that would have existed but for the illegal acts of discrimination. It will sometimes prove impossible or not useful to retreate such conditions in particular schools. This may be SQ 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 sontal process that has been deformed by official action. To that end, the courts should attempt to recreate patterns of racial or ethnic integration that would have existed in the absence of illegal acts. Thus, 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 reflec- ted 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 FORD - 16 - 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 discrimina- tory conduct. 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 divert 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 terminate 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 gerry- mandering 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 construction. But however long each - 17 - component of the remedy may take to achieve, any legisla- tion should ensure that the courts monitor the process and dissolve their orders once the effects of racial discrimina- tion have been ameliorated to the extent possible. It should also ensure that the use of forced busing 1s, except in extraordinary circumstances, strictly limited in duration. Under section 5 of the Fourteenth Amendment Congress has an important role in defining the nature of the consti- tutional prohibition and creating a remedy. Congress has exercised this power in the Equal Educational Opportunities Act of 1974, by establishing a hierarchy of tools and devices to carry out the remedy. But that effort has not proved to be sufficient, and Congress once more must meet the challenge and fulfill its constitutional role. The legislation that I am transmitting to Congress today will meet that challenge. 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 provide that the constitutional goal of eliminating race discrimination in its causes and effects will - 18 - be met with the minimum amount of busing required by the Constitution. The legislation I transmit today will sweep away the confusion and ambiguity concerning the goal of the remedy. The legislation brings certainty to the remedial goal. Instead of the ambiguous word "segregation" it uses "unlawful 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. "Desegre- gation" 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 discrimina- tion 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 pro- duce system-wide racial balance. Courts will produce only that balance within a school that would have occurred, but - 19 - for the unlawful discrimination by school authorities. 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 im- balance caused by voluntary choice, by private discrimination, or by unlawful discrimination other than discrimination 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. The legislation provides for a review by the judge every three years of the remedien he has imposed. With respect to forced busing, it requires that except in extraordinary circumstances no forced busing can continue for more than five years. These provisions would return the operation of a school system to local authoriting at the earliest possible time. Finally, we must give rellewed emphasis to the fact that public schools are and must be of basic concern to local communities. Those efforts should be directed toward bringing local community leaders together BO that proper educational procedures can be developed and Can gain the maximum community support. The intervention of the federal courts to enforce - 20 - the constitutional 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 mechanisms 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 cases. Most importantly the legislation provides that before a federal judge orders busing a community council 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 mini- mization of forced busing. The efforts to restore our public schools to the conditions in which they would have been but for unconstitu- tional acts of racial discrimination by school officials - 21 - 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 minimum of devisiveness can be an exercise in the harmony that we seek to achieve and can lead to the end we all so deeply desire. THE WHITE HOUSE WASHINGTON June 1, 1976 DECISION MEMORANDUM TO THE PRESIDENT FROM: JIM CANNON SUBJECT: Alternatives to Court Ordered Busing PURPOSE To offer for your consideration possible alternatives to court ordered busing which the Federal government could make available to a community seeking remedies to school segregation. ISSUE Busing has become the most controversial remedy ordered by the Federal courts to facilitate desegregation. As an appropriate remedy to desegregate, busing was first affirmed by the Supreme Court in 1971, 17 years after the Brown decision. A chronology of the major school desegre- gation decisions is at Tab A. The school bus started to become a major element of elemen- tary and secondary education in the 1920's as consolidated school districts replaced the little red school house. Today, more than 21 million school children, 51% of the total school enrollment of 41 million, are bused to school. Busing for better education has been widely accepted in this country, but decisions by Federal courts to order busing of children against prevailing community opinion are often resisted and accompanied by violence and dis- order. Since most situations in which desegregation is occurring will involve some voluntary or involuntary busing, the need is to find a means by which the Executive Branch can best assist a community to undertake voluntary or coopera- tive busing plans rather than leaving it to the courts to impose forced busing. FORD is LIBRARY 078870 -2- BACKGROUND On August 21, 1974 you signed the Education Amendments of 1974 which included the "Esch Amendments. " These amendments (Tab B) are designed to place legislative limits on the extent to which busing could be ordered by Federal courts or agencies. Last Fall you directed the Attorney General and the Secretary of HEW to explore better ways to bring about school desegregation than court ordered busing. In an October 27, 1975 meeting with Senator Tower you directed Phil Buchen to ask Justice and HEW to review the busing situation with the objective of seeking alter- native remedies. On November 20, 1975, you met with Attorney General Levi and Secretary Mathews and requested that they consider and develop: 1. means of helping local school districts stay out of court. 2. alternative remedies and legal theories which a court might find acceptable once a school district was in court. I have been working with HEW and others in your Administra- tion on item 1 while Phil Buchen has been regularly in contact with the Attorney General on item 2. On February 17, 1976, we outlined approaches and concepts under consideration. You indicated four which you felt merited further examination. On April 12, 1976, I reported to you that we were develop- ing approaches based on these premises: 1. Communities should find solutions on their own rather than have them imposed by the Federal government. 2. Remedies can best be reached before any court action begins. 3. Any approach must be in accord with Federal law enforcement responsibilities. FORD & LIBRARY -3- On May 17, 1976, I reported to you that we were in the process of refining and further examining three possible approaches to help a community avoid a court order to bus. ALTERNATIVES TO COURT ORDERED BUSING The following proposals have evolved as the most respon- sible courses of action available to be offered to a com- munity to better enable it to desegregate its schools prior to the initiation of legal action. While it is likely that each of the alternatives would result in some busing the intent is to have such plans be developed by a community itself rather than imposed on it by the courts. Alternative I: Mediation Service Establish a Community Mediation Service, somewhat parallel to the Federal Mediation and Conciliation Service, to provide mediation assistance to a com- munity in its efforts to desegregate. As proposed, it would be available to a community both before and after it was under a court order to desegregate. Such service could head off busing by court order by providing assistance to a community, at its request, to develop an acceptable plan to desegre- gate its schools. If any busing were involved it would result from a community decision assisted by the mediation process, not from a court order. We believe such a mediation service could be set up by Presidential Executive Order. Alternative II: Presidential Representative At the request of a community, the President would designate a nationally known person to be his special representative to insure that the full resources of the Federal government were made available to communities who were initiating efforts, prior to legal action, to desegregate their schools. This Presidential representative would seek to facilitate the use of the many existing Federal resources and also to involve religions, academic, business and labor groups in the response to a com- FORD munity's request for assistance. GERALD This could be done by Presidential action. -4- - Alternative III: National Community and Education Commission Secretary Mathews proposes the establishment of a National Community and Education Commission to assist communities in preparing for desegregation activities and for avoiding community violence and disruption. (Tab C) The bipartisan Commission would be independent of both HEW and Justice and would be composed of nine members who were nationally representative of busi- ness, education, labor, community leadership and local government. The Commission would have a staff of approximately 50 and an annual budget of $2 million. Its responsibilities would be to work through local community leaders, using existing Federal resources, to encourage and facilitate constructive, comprehen- sive planning for school desegregation at the local level. Its approach would be to work quietly with a broad spectrum of local leaders -- -- to identify problems before they develop. -- to informally mediate so that communities themselves can cooperatively devise solu- tions. -- to expedite Federal assistance, both tech- nical and fiscal, from existing programs. - to encourage assistance from the private sector. It would specifically not serve as a court-appointed intermediary between parties in a legal suit related to desegregation. We believe such a Commission could be created by Presidential Executive Order. DISCUSSION The various advantages and disadvantages of these alternatives and the related staff comments and recommendations can, we believe, best be covered in the discussion at Wednesday's FORD & LIBRARY GERALD -5- - meeting with the Attorney General, the Secretary of HEW, Secretary of Labor and other members of your staff. DECISION Alternative I: Mediation Service Approve Disapprove Alternative II: Presidential Representative Approve Disapprove Alternative III: National Community and Education Commission Approve Disapprove GENALE R. FORD TAB A CHRONOLOGY OF SCHOOL DESEGREGATION DECISIONS A. Brown V. Board of Education (1954) The landmark Supreme Court decision in the school desegregation area in this century was Brown V. Board of Education (of Topeka), decided in 1954. In Brown, the Supreme Court held that segregation in public schools on the basis of race, even though the physical facilities and other "tangible" fac- tors may be equal, denies children of the minority group the equal protection of the laws in violation of the Fourteenth Amendment. In the Brown decision, the Supreme Court did not prescribe any specific method for accomplishing desegregation. B. Brown II (1955) In a follow-up to its 1954 Brown decision, the Supreme Court in 1955 directed that desegregation proceed with "all deliberate speed." C. "Freedom of Choice" In the years immediately following Brown, from 1954 to 1964, the courts wrestled with the issue of appropriate remedies in cases of de jure segregation, finally concluding in a number of cases that the "freedom of choice" method of dismantling dual school systems was an acceptable approach. Under freedom of choice, school districts merely gave students -- black and white -- the choice of the schools they wished to attend. The result was a modest degree of desegregation, as some blacks elected to attend formerly white schools. However, rarely did whites choose to attend formerly black schools. The result was that only 1.2 percent of black students in the 11 southern states attended schools with whites in 1963-64. D. Civil Rights Act of 1964 and Bradley Case Shortly after passage of the Civil Rights Act of 1964, the Supreme Court stated in Bradley V. School Board of Richmond (1965) that "delays in desegrega- ting school systems are no longer tolerable." The -2- Civil Rights Act of 1964 provided additional support for the desegregation process through Titles IV and VI. Under Title IV, technical assistance may be given to applicant school boards in the preparation, adoption, and imple- mentation of plans for desegregation of public schools. If efforts to secure a school district's voluntary desegregation failed, administrative enforcement proceedings under Title VI would be initiated. E. Green Decision (1968) In April 1968, HEW's Office for Civil Rights directed that, where freedom of choice plans had not effectively eliminated dual school systems, the systems should adopt plans that would accom- plish this task. During that year, the Supreme Court strengthened the HEW position in deciding Green V. New Kent County School Board (Virginia). In Green, after noting that in many areas desegre- gation was not yet a reality, the Court said that the time for mere "deliberate speed" had run out. The Court held that where a freedom of choice assign- ment plan failed to effectively desegregate a school system, the system had to adopt a student assignment plan which "promised realistically to work now. This was the death, since rarely, if ever, did freedom of choice result in effective school desegre- gation. F. Alexander V. Holmes (1969) In the summer of 1969, the Court decided Alexander V. Holmes County Board of Education (Mississippi), holding that school districts had a constitutional obligation to dismantle dual school systems "at once" and to operate now and hereafter as unitary systems. The Court, quoting from Green, reiterated its deter- mination that school systems must develop desegregation plans that "promise realistically to work now. Thus, Alexander clearly reaffirmed the Court's position on the issue of timing in desegregation cases. G. Busing - Swann V. Charlotte-Mecklenburg Board of Education (1971) In the spring of 1971, the Supreme Court handed down the first "busing" decision in the case of Swann ve -3- Charlotte-Mecklenburg Board of Education (North Carolina). In Swann, the Court held that: 1. desegregation plans could not be limited to the walk-in neighborhood school; 2. busing was. a permissible tool for desegre- gation purposes; and, 3. busing would not be required if it "endangers the health or safety of children or significantly impinges on the educa- tional process. " The Court also held that, while racial balance is not required by the Constitution, a District Court has discretion to use racial ratios as a starting point in shaping a remedy. H. HEW Responsibilities to Enforce (1973) The immediate desegregation mandate of Alexander and the insistence in Swann that schools having disproportionately minority enrollment were pre- sumptively in violation were not acted upon by HEW, which permitted these districts to remain "under review." HEW attempted to secure compliance through persuasion and negotiation, and the Title VI enforce- ment mechanism fell into disuse. These conditions led to the initiation of Adams V. Richardson, in which HEW was charged with delinquency in desegre- gating public educational institutions that were receiving Federal funds. This suit alleged that HEW had defaulted in the administration of its responsibilities under Title VI of the Civil Rights Act of 1964. The district court (District of Columbia) stated on February 16, 1973, that, where efforts to secure voluntary compliance with Title VI failed, the limited discretion of HEW officials was exhausted. Where negotiation and con- ciliation did not secure compliance, HEW officials were obliged to implement the provisions of the Title VI regulations: provide for a hearing; determine compliance or noncompliance; and, following a deter- mination of noncompliance, terminate Federal finan- cial assistance. -4- - The district court's decision was modified and affirmed by the Court of Appeals (D.C. Circuit, 1973) Essentially, the district court order requires that HEW properly recognize its statutory obligations, ensuring that the policies it adopts and implements are consistent with those duties and not a negation of them. I. Keyes - "Segregative Intent" (1973) In June 1973, the Supreme Court rendered its deci- sion in Keyes V. School District No. 1 (Denver, Colorado). This was the Court's first decision on the merits in a school desegregation case arising in a State which did not have an official policy of racial dualism in 1954. In Keyes, the Court held that where it could be demonstrated that a school board had acted with "segregative intent" to maintain or perpetuate a "dual school system" this was tantamount to de jure segregation in viola- tion of the Constitution. A finding of de jure segregation as to one part of the system creates a presumption that segregative intent existed in the entire system and in such cases, the school board had "an affirmative duty to desegregate the entire system 'root and branch' J. Milliken - Cross District Busing (1974) In its most recent ruling respecting school desegre- gation, Milliken V. Bradley (Detroit, Michigan), the Supreme Court refused to require busing between school districts absent a showing that there has been a constitutional violation within one district that produced a significant segregative effect in another district. B TAB B ESCH AMENDMENTS (1974) You signed into law on August 1974, Amendments to the Elementary and Secondary School Act which included the Esch amendments which were designed to place legislative limits on the extent to which busing could be ordered by Federal Courts or agencies. The key elements of those provisions are: A. Remedies to Correct Segregation When formulating desegregation plans, Federal Courts and agencies must use following remedies in order listed: (1) Assign students to closest school (considering school capacity and natural physical barriers). (2) Assign students to closest school (considering school capacity only). (3) Permit students to transfer from school where their race, color or creed is a majority to one where it is a minority. (4) Create or revise attendance zones or grade structures without requiring busing beyond that described below. (5) Construct new schools or close inferior ones. (6) Construct or create "magnet" (high quality) schools. (7) Implement any other educationally sound and administratively feasible plan. B. Additional Restrictions on Federal Courts or Agencies (1) No ordered busing of students beyond school next closest to home. GERALD -2- (2) No ordered busing at risk of students' health. (3) No new desegregation plans may be formulated to correct shifts in atten- dance patterns once school system determined non-segregated. (4) No desegregation plans can ignore or alter school district lines unless such lines were drawn to, or tend to, promote segregation. (5) No ordered busing shall be effective until the beginning of an academic school year. C. Rights Granted to Individuals and School Districts (1) Allows suits by individuals (or Attorney General on individuals' behalf) under the Act. (2) Permits voluntary busing beyond limits outlined. (3) Allows reopening of pre-existing Court orders or desegregation plans to achieve Title II compliance. (4) Requires termination of court-ordered busing if Federal Court finds school district non-segregated. It should be noted that the priority of remedies set forth in the Esch Amendments is merely a slight elaboration on existing case law. A review of the cases from Swann on up to Boston and Louisville clearly shows that the Courts have always turned to busing as a last resort. Moreover, since several of the prior remedies set forth in the Esch Amendments (such as construction of new schools) would not accommodate immediate desegregation of a school system, it is doubtful that, as a matter of constitutional law, they are binding as to the Courts. Finally, as to the appli- cation of the Esch Amendments to Federal agencies (notably the Office of Civil Rights in HEW), it appears that OCR has never required busing on a massive scale and has, since their enactment, observed the terms of the Amendments. INFORMATION THE THE THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE WASHINGTON, D.C. 20201 MAY 20 1976 MEMORANDUM FOR THE PRESIDENT Pursuant to our conversation, I have prepared for your consideration a proposal to establish a National Community and Education Commission to assist communities in preparing for desegregation activities and in avoiding trauma, violence and disruption. At Tab A I have enclosed a brief discussion of the nature and functions of such a Commission and at Tab B a proposed draft Presidential Executive Order estab- lishing the Commission. I would call to your attention the following two specific issues in terms of this approach. Implementation Strategy - Executive Order or Legislation Although the Commission could be established either through legislation or an Executive Order, the Executive Order approach appears preferable for the following reasons: The chances of Congress considering legislation to implement this proposal in the near future are very slight. You have the authority and precedent to create an action-type council or commission by Executive Order. As long as the Executive Order does not contradict or supersede any statutes, you may create councils, commissions, and committees to carry out any function from studying a problem to developing programs. You may also give such bodies review and regulatory authority and the power to mediate. It is common practice for such commissions to receive appro- priations from Congress without authorizing legislation. In most cases, the "parent" Department (in this case HEW) requests funds for the commission as a line item in its appropriation. Although the Executive Order approach does not require Congressional action, it is imperative that consultations with minority members on the appropriate committees be initiated promptly if such a proposal is approved by the Administration. Unless handled carefully, the Democratic Congress could endanger the proposal by arguing that the FORD Page 2 Memorandum For The President Administration is taking away Congress' authority to legislate. Even with an Executive Order, Congress' support and tacit approval is needed to enable the Commission to succeed in its complex mission. Appropriations Strategy - Commission To accomplish its mission effectively, the Commission would require a permanent staff of approximately 50 persons, as well as the ability to hire such consultants as it may need for specific projects. Support costs for such an enterprise would be around $2 million annually. As noted above, HEW would request funds for the Commission as a line item in its appropriation. Although funds could be requested through an emergency supplemental or obtained through a reprogramming of present HEW funds, the preferred course of action is a budget amendment which would fund the Commission as of October 1. I believe the approach suggested herein provides the most viable and effective strategy for the Administration to demonstrate it is truly concerned about the issue of the disruption of communities because of desegregation activities. I would recommend your approval of this approach and the issuance of such an Executive Order after appropriate consultation with the Congress. David Calians Enclosures ESTABLISHMENT OF THE NATIONAL COMMUNITY AND EDUCATION COMMISSION A MAJOR INITIATIVE IN SCHOOL DESEGREGATION Summary Description In an effort to encourage and facilitate constructive, comprehensive planning for school desegregation at the local level, it is proposed that the National Community and Education Commission be established by Executive Order. The Commission would be a Presidentially-appointed, bipartisan group of distinguished citizens drawn from business and other professional circles. Its charge would be to assist local communities in carrying out desegregation planning activities designed to build lines of communication, avert disorder, and encourage con- structive interracial classroom environments through the example of constructive interracial community environments. Specific Function The Commission's chief responsibility would be to advise local com- munity leaders at the earliest stages of desegregation planning. Assistance would be initiated at the request of the affected community, and at that point a determination would be made by one or more Com- mission members as to what course of Commission activity offered the greatest promise of success within the particular community. In general, however, the orientation of the Commission would be toward working quietly with a broad spectrum of local leaders to identify problems before they develop and to devise solutions which could be carried out locally. While working within a community, the Commission would function primarily in a supportive and advisory role. In the course of its consultations with the community and the school district, one of the Commission's chief functions would be to inform local leaders of additional sources of desegregation assistance (Federal, State, local and private) and encourage that these sources be investi- gated. Such sources include direct funding through the Emergency School Aid Act; technical assistance through OE's General Assistance Centers; OE's ten regional offices, and the Justice Department's Community Relations Service; formal mediation service through the Federal Mediation and Conciliation Service; and other forms of aid through the U.S. Commission on Civil Rights, State human relations agencies, and related private agencies. Although the Commission's activities will overlap to some extent with those of the organizations mentioned above, the Commission should be -2- able to minimize unnecessary duplication through careful liaison with these other resources. It will be particularly important to work out non-duplicative roles with the Community Relations Service (CRS) since the function of CRS -- helping communities defuse tensions and conflicts arising from inequities or discrimination based on race, color, or national origin -- is notably similar to that of the pro- posed Commission. The CRS focuses less of its attention on pre-crisis intervention now than it did prior to FY 1974. Budget cuts that year effectively removed CRS from its earlier pre-crisis role, even though some individuals have held that the nature of the CRS function and expertise makes the agency particularly well suited to pre-crisis assistance. Thus, although CRS may not be currently active in some of the Commission's more important roles, its staff probably will have valuable insights and experiences to share with the Commission. In keeping with its general functions already described, the Commis- sion's role would not be to serve as a court-appointed intermediary between parties in a legal suit related to desegregation. Mediation would be a proper role for the Commission only in instances where it was conducted informally and with the voluntary participation of the major elements of the community. Similarly, the Commission would not be empowered to act for any State or Federal agency in an enforcement or compliance capacity. Moreover, it would not be expected to draw up desegregation-related student assignment plans at the request of a State or Federal agency. Federal Incentives for Comprehensive Community Planning The Commission is intended primarily to provide help to school districts which have not yet adopted or been issued a desegregation plan (although districts at other points in the desegregation process certainly would not be precluded from receiving assistance from the Commission). In order to provide support for districts which are conducting compre- hensive, community-based planning for desegregation, it is proposed that a specified amount of funds in the Emergency School Aid Act (ESAA) discretionary account be set aside to support local planning acti- vities, including those initiated with Commission involvement. The ESAA discretionary account (Section 708 (a)) is the only part of the ESAA under which a school district without an eligible desegregation plan may receive funds. Therefore, it would be possible to stipulate by regulation that a community which showed proof of effort to conduct community-wide desegregation planning could receive funding to conduct such planning and other activities authorized under ESAA. The intention would be that this planning would involve all major sectors of the community, including business and housing representatives. -3- Structure The Commission would be made up of nine members who would be appointed by the President for three-year terms of office. To provide continuity within the Commission, terms of office for individual members would be staggered at one-year intervals. The Commission chairman would be selected by the President, with the first chairman appointed for a full three-year term. Commission members would be expected to main- tain their regular occupations but would be compensated at EL IV for the days they work on Commission activities. To ensure bipartisan representation, restrictions would be placed on the number of Commis- sion members permitted from each political party. The Commission would have the authority to hire staff on an excepted service basis and to retain consultants as needed for specific projects. DRAFT EXECUTIVE ORDER NATIONAL COMMUNITY AND EDUCATION COMMISSION Throughout the history of our Nation, the education of our children, especially at the elementary and secondary level, has been a community endeavor. The concept of public education began in the community and continuous support for public schools has been provided by the community. Although the States, and to some extent the Federal government, have been providing increasing financial assistance for education, it has become clear that the solution of many of the most pressing problems facing our schools lies within the community which supports those schools. This fact has particular relevance to the problem of school desegregation. Over the past two decades, communities have been under pressure from the courts, the Department of Health, Education, and Welfare, and in some cases the States, to institute changes in the assignment of students to schools. Too often this has been accomplished without the involvement of the community or with its involvement only after confron- tions have occurred and community positions have been established. 2 The problems that have arisen in the process of school integration have not been due to the inadequacy of law or the lack of appropriate resources. Rather, they can be attributed to the fact that the burden of initiating and enforcing school desegregation has been borne by the courts and the Federal government without the benefit of those forces from within the community that are uniquely able to bring about necessary change in an orderly and peaceful manner. It is therefore the purpose of this executive order to provide a means to activate and energize effective local leadership in the desegregation process at an early stage in order to reduce the incidence and severity of the trauma that would otherwise accompany that process, and to provide a national resource that will be available to assist communities in anticipating and resolving difficulties encountered prior to and during desegregation. NOW, THEREFORE, by virtue of the authority vested in me as President of the United States of America, it is hereby ordered as follows: 3 Section 1. Establishment of the Commission. (a) There is hereby established a National Community and Education Commission (hereinafter referred to as the "Commission"), the purpose of which shall be to consult with, provide technical assistance to, and informally mediate between, community groups and State and local governmental organizations (including educational agencies) in order to anticipate and resolve problems and conflicts relating to the desegregation of schools. (b) Composition of the Commission. The Commission shall be composed of nine members who shall be appointed by the President from among individuals who are nationally recognized and respected in business, education, government and other fields and whose experience, reputation, and qualities of leadership render them uniquely capable of carrying out the purposes of the Commission. No person who is otherwise employed by the United States shall be appointed to serve on the Commission. No more than five of the members of the Commission at any one time shall be members of the same political party. 4 (c) Terms of members. The term of office of each member of the Commission shall be three years, except that of the members first appointed to the Commission three shall be appointed for a term of one year and three shall be appointed for a term of two years. Any member appointed to fill an unexpired term on the Commission shall serve for the remainder of the term for which his predecessor was appointed. (d) Chairman; quorum. The Chairman of the Commission shall be designated by the President. Five members of the Commission shall comprise a quorum. (e) Compensation of members. Each member of the Commission shall be compensated in an amount equal to that paid at level IV of the Federal Executive Salary Schedule, pursuant to section 5313 of title 5, United States Code, prorated on a daily basis for each day spent on the work of the Commission, including travel time. In addition, each member shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for persons employed intermittently in the Government Service. 5 (f) Executive Director; staff. The Commission shall have an Executive Director, designated by the Chairman with the approval of a majority of the members of the Commission, who shall assist the Chairman and the Commission in the performance of their functions as they may direct. The Executive Director shall be appointed without regard to the provisions of title 5, United States Code, governing appointments in the competitive service. The Commission is also authorized to appoint, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, or otherwise obtain the services of, such professional, technical, and clerical personnel, including consultants, as may be necessary to enable the Commission to carry out its functions. Such personnel, including the Executive Director, shall be compensated at rates not to exceed that specified at the time such service is performed for grade GS-18 in section 5332 of that title. 6 Sec. 2. Functions of the Commission. The functions of the Commission shall include, but shall not be limited to: (1) Consulting with leaders in the community and local groups in determining means by which such leaders and groups can, through early involvement in the development of, and preparation for, school desegregation plans, contribute to the desegregation process in such a way as to avoid conflicts and the invocation of judicial procedures. (2) Encouraging the formation of broadly based local community organizations to develop a program designed to encourage comprehensive community planning for the desegre- gation of schools. (3) Providing advice and technical assistance to communities in preparing for and carrying out comprehensive plans to desegregate the schools, involving the broadest possible range of community interests and organizations; (4) Consulting with the Community Relations Service of the Department of Justice (established under title X of the Civil Rights Act of 1964), the Office for Civil Rights in the Department of Health, Education, and Welfare, the National Institute of Education, the U.S. Office of Education, 7 General Assistance Centers (funded under title IV of the Civil Rights Act of 1964), the United States Civil Rights Commission, and State and local human relations agencies to determine how those organizations can contribute to the resolution of problems arising in the desegregation of schools within a community; and (5) Providing informal mediation services among individuals, groups, and agencies within a community in order to resolve conflicts, reduce tensions, and develop acceptable means of desegregating schools without resort to administrative and judicial processes. Sec. 3. Limitations on activities of the Commission. It shall not be the function of the Commission-- (1) to prepare desegregation plans; (2) to provide mediation services under the order of a court of the United States or of a State; or (3) to investigate or take any action with respect to allegations of violations of law. Sec. 4. Cooperation by other departments and agencies. (a) All executive departments and agencies of the United States are authorized to cooperate with the Commission and furnish to it such information, personnel and other 8 assistance as may be appropriate to assist the Commission in the performance of its functions and as may be authorized by law. (b) In administering programs designed to assist local educational agencies and communities in planning for and carrying out the desegregation of schools, the Secretary of Health, Education, and Welfare and the heads of agencies within that Department shall administer such programs, to the extent permitted by law, in a manner that will further the activities of the Commission. Sec. 5. Expenses of the Council. Expenses of the Commission shall be paid from such appropriations to the Depart- ment of Health, Education, and Welfare as may be available therefor. Sec. 6. Confidentiality. The activities of the members and employees of the Commission in carrying out the purposes of this executive order may be conducted in confidence and without publicity, and the Commission shall, to the extent provided by law, hold confidential any information acquired in the regular performance of its duties if such information was provided to the Commission upon the understanding that it would be so held. HEALTH DEPARTMENT OF THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE IMPARTMENT any WASHINGTON, D.C. 20201 MAR 29 1976 MEMORANDUM FOR THE HONORABI JAMES M. CANNON Here is a report on the reaction of our best staff in the Department to the options in your memo on "Alternatives to Busing:" 1. Many successful superintendents have been success- ful because of a low profile. The recognition, while flattering, might well be counterproductive. Civil rights groups could have a field day with suits aimed at proving that the efforts of these individuals really were not good enough. Furthermore, since many of the superintendents in such a group would have used busing, the President could be seen as endorsing busing by one group and then, for the same gesture, criticized for tokenism by the other side. Of course, as the Commissioner of Education notes, there is some value to reinforcement for people doing a hard job well. 2. DHEW is already doing much of what is suggested in this option. However, since the federal government is seen as the problem, its role as a point of reference or place for assistance is, regrettably, limited-- regardless of how fine its services are. 3. The same comment just made applies here, too. More research can always be done, but as you will see from the attached status report, DHEW is already in the midst of a multitude of good studies. And the National Institute of Education predicts that these studies will show busing is "working" in eight out of ten situations. There might be some more work done, however, in studies on using community institutions outside the schools to aid in desegregation. Memorandum for the Honorable James M. Cannon Page Two 4. The staff advised great caution with this option. They made the point that to attack busing raises the question of alternatives and since there are not many good ones, the Administration would be left with its back to a wall. Our working papers are available if they would be helpful. Secretary Attachments MEATTIC SOUN THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE WASHINGTOI, D.C. 20201 THE MAR 29 1976 MEMORANDUM FOR THE PRESIDENT The best advice I can bring together from across the country leads me to recommend a few basic precepts from which to make judgments on a whole host of complex issues and options on the matter of busing and desegregation. The best policy position would be one with three basic elements: 1. It is important that the President first reaffirm the national commitment to the basic moral principle that segregation is incompatible with any good vision of the future of this country and that no child should be denied the benefits of an equal education because of race. Any position that does not begin at this point and clear the air on it will mire down. other 2. Your position on busing can then be restated and expanded by the assertion that because of this moral imperative, must we cannot do other than pursue, with all diligence, the issue of the best means. There is evidence that busing is not an effective means in some situations, and we cannot escape an obligation to find better approaches to the problem. It is important at this point, however, not to go on to try to prove that any of the alternatives we now have is a certain cure either. None is. And there are a great many cases where transportation by buses is working well secording to the research reports we have. quality educater 3. The "truth" that nobody is saying is that the solution is in taking an approach much broader than concentrating on busing or any of its alternatives. The first part of that solution is to turn the issue away from just a busing question. The busing debate is really not a constructive debate at all, and the issue must be "depoliticized" as' much as possible. Perhaps this issue has met a stale- mate in the political processes and must be lifted out of that atmosphere and placed in a nonpartisan, nonpolitical - 2 - forum for serious and far-réaching reassessment. The suggestion is that you push for real, useful-- not just rhetorical- attention to the problem. 4. The other part of the solution is to focus on the problem as it really is, not as it seems to be. The issue is not what means are used to achieve desegregation but who controls that decision and how parental and community concerns are taken into consideration. To reframe the case and to focus on reuniting the community and parents with school control has great potential and is the way the cities have had some success with getting on with desegregation. way 5. The public feels that the federal government (whether by the courts or the legislative process) has not only failed to solve the problem but has made it worse. There- fore, any solution from any part of the federal govern- ment is likely to fail--even if it were the "right" solu- tion. The only good option for the Executive Branch may be to act as a "helper" and a partner to aid com- munities in helping themselves. 6. Using the precedent of the government to create a national force that is not governmental (the National Academy of Sciences and the National Council on the Arts and Humani- ties are examples), perhaps we should consider working with local governments and community groups to create port a body from the best of the local community, education and parental leadership, titled perhaps the National Com- Cout munity and Education Council. It could work as a medi- ating force and provide technical assistance to communi- ties to deal with problems before they become crises. In fact, the evidence from successes in Atlanta and Dallas is that citizen alliances of the type the Council should foster were the decisive forces. As I noted earlier, "success" seems to turn most on how well a community goes about making decisions that come up before the question of busing or any other means. The Council could also help cities to get the whole community, not just the schools, involved in voluntary efforts to prevent unhealthy racial isolation and foster constructive human relations. - 3 - The courts might find such a body a welcome referral point (that is, to get ideas but in no sense would it be proper for such a council to be an agent of the courts), and cities or community alliances might find it a source of good ideas and even endorsement. Another alternative would be to use the occasion of getting the ESA legislation renewed to allow us to encourage many of the activities that the Council would foster without the fanfare of creating a new agency. In sum, there do not seem to be any solutions that come from dealing with busing directly or even in searching for alternatives. The best chances for success seem to be in pioneering some new ground. Americans traditionally have solved problems not by changing the problem, but by changing their view of the problem. ON-GOING DEPARTMENT STUDIES AND ACTIVITIES RELATED TO DESEGREGATION The Department has planned or on-going many analyses, evaluations, or research projects related to questions of quality education, urban education, and desegregation. The major ones are listed below: Office of Education The desegregation-related studies underway in OE are primarily directed toward the evaluation of OE's desegregation assistance programs and their effects on schools. One special study will look at a small number of districts that are success- fully and peacefully desegregating in an attempt to discover the practices that contribute to successful desegregation. The evaluation of the Emergency School Aid Act (ESAA) basic and pilot programs is a longitudinal study of the effectiveness of two of the largest components of ESAA in meeting the objectives of the legislation. Special attention is being given to the relative efficacy of alteinative school programs in raising student achievement. The study is being conducted through a contract with the System Development Corporation. The report on the first year of the study has been issued with subsequent reports due in May 1976 and May 1977. The evaluation of Title IV of the 1964 Civil Rights Act is assessing the effectiveness of this program in delivering training and technical assistance services to desegregating school districts. The study is being conducted by Rand Corporation, with the final report scheduled for release in June 1976. The OE study of exemplary desegregated schools is examining evidence showing the degree to which various school practices and programs contributed to successful desegregation. The final report is due in June 1976 from the contractor Educational Testing Service. -2- National Institute of Education NIE has a number of on-going studies relating to various aspects of school desegregation. In FY 1976 the total amount spent on desegregation research was $682, 000. The aim of those studies is to assist in making desegregated education settings exciting and humane places for children and is not to study the effects of desegregation on children. Some of the most policy relevant of these studies are: Six ethnographic studies of the cultural milicu and environment of desegregated schools. These studies are being carried on in New York, Pittsburgh, Pontiac, Durham, San Francisco, and Memphis. They are due July 1978. A study of status equalization and changing expectation in integrated classrooms. This will be due in 1978 or 1979. A study of racial integration, public schools, and the analysis of white flight. Due October 1976. A study entitled "Political Protest and School Desegregation: A Case Study of Boston". Due September 1976. A study of social impact on school desegregation, dealing with how much school desegregation is possible before it becomes counterproductive. Completed January 1976. A study of desegregation research and appraisal. This has resulted in a compendium that updates and evaluates the finding of recent research on integration and desegregation. Completed and at printers. Assistant Secretary for Planning and Evaluation The Office of the Assistant Secretary for Planning and Evaluation (ASPE) is beginning an analysis of Federal School Desegregation Policy as it has evolved through judicial, legislative, and administrative action in the last twenty -3- years. The analysis consists of six related studies. The first of these is a legal study that describes the implementation of desegregation actions in the nation's schools. It will systematically describe features of the various desegregation plans implemented in response to Federal actions. It will be due a year from now. Three other studies will investigate the impact of Federal action and different desegregation plans on the racial and socio- economic characteristics of schools and communities, attitudes toward desegregation, and student educational attainment. These studies will be completed in eighteen months. A fifth study will investigate minority parti- cipation in Federally funded education programs. This study is in the design phase and will be completed in eighteen months. A study of Federal policy alternatives will complete the analysis. 1/ It is anticipated that all six studies will be completed in approximately eighteen months. Assistant Secretary of Education A small scale effort is underway in ASE's Policy Development office to project probable effects of present court cases, to develop new measures of district and regional racial isolation, and to review other policy variables of interest to the Education Division. This work is being conducted as part of a larger policy analysis contract with Stanford Research Institute. 1/ A later effort will review the impact of Federal desegregation policy on postsecondary education. Study components will build upon the analysis developed for elementary and secondary education. HEALTH DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE OFFICE OF THE SECRETARY USA WASHINGTON, D.C. 20201 June 1, 1976 NOTE TO DICK PARSONS You raised some questions concerning desegregation of Northern school systems. As to the number of Northern districts which may be required to adopt a desegregation plan, we currently survey approximately 1100 Northern districts. One of the criteria used to select a district for our civil rights survey is that it must have a minority enrollment which is at least 10%. This would probably be the maximum number which may be required to desegregate in the future. of this number, we estimate that approximat ely 25 will be desegregating for the first time or making substantial additional changes this fall. Of the 100 largest systems in the country, 49 are in Northern states. Of these, 15 are under a final court order to desegregate, 13 are in active litigation, 3 voluntarily desegregated, and 1 (Des Moines) is under investigation by the Office for Civil Rights. Of the top 10 school systems, only 2 (New York City and San Diego, California) are not involved in active litiga- tion or under a court order. New York City is composed of 32 community districts, none of which is large enough to rank among the 100. Of the largest 20 districts, only 2 more (Albuquerque, New Mexico, and Newark, New Jersey) are not in active litigation or under court order. Albuquerque in 1972 had a black population of only 2.6% and, thus, is not a likely candidate for desegregation. Newark, on the other hand, had a black population of 72.3% and, thus, is probably too heavily minority for much desegregation in the future. - 2 - I have attached a list of the 100 largest school systems. with the following code: N - No action pending F - Final order/voluntary plan (Title VI) AL - Involved in active litigation S/ - State involvement V - Voluntary desegregation I - Under investigation (Title VI) (Deleted districts are in the 17 Southern and border states.) I apologize that this is 1972 data, but I do not believe that the facts have changed all that much. I have also attached the list of districts which may appeal an order to desegregate to the Supreme Court. Martin H. Gerry FOR GERALD TABLE 3 A NEGROES IN 100 LARGEST (1972) SCHOOL DISTRICTS, RANKED BY SIZE NUMBER AND PERCENTAGE ATTENDING SCHOOL AT INCREASING LEVELS OF ISOLATION FALL, 1970 AND FALL, 1972 ELEMENTARY AND SECONDARY SCHOOL SURVEY NEGROES ATTENDING: 0-49.9% 50-100% 80-100% 90-100% 95-100% 99-100% 100% MINORITY MINORITY MINORITY MINORITY MINORITY MINORITY MINORITY TOTAL NEGRO NEGRO SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS DISTRICT PUPILS NUM. PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NEW YORK,NY N 70 1140359 393516 34.5 63981 16.3 329535 83.7 258655 65.7 227673 57.9 185766 47.2 126879 32.2 46947 11.9 72 1125449 405177 36.0 67009 16.5 338168 83.5 288753 71.3 246845 60.9 198352 49.0 117392 29.0 26579 6.6 LOS ANGELES, CAL 70 642895 154926 24.1 9121 5.9 145805 94.1 134889 87.1 129039 83.3 122779 79.3 85923 55.5 13551 8.7 72 620659 156680 25.2 12696 8.1 143984 91.9 133238 85.0 127490 81.4 122732 78.3 99356 63.4 19409 12.4 CHICAGO,ILL 70 577679 316711 54.8 9502 3.0 307209 97.0 290694 91.8 284013 89.7 270587 85.4 236143 74.6 143900 45.4 S/AL 72 553342 315940 57.1 5419 1.7 310521 98.3 293840 93.0 280004 88.6 273657 86.6 252184 79.8 148784 47.1 PHILADELPHIA,PA S/ALT2 70 279829 169334 60.5 12541 7.4 156793 92.6 135866 80.2 118596 70.0 106782 63.1 78508 46.4 8668 5.1 72 282965 173874 61.4 11677 6.7 162197 93.3 142147 81.8 131982 75.9 116964 67.3 74830 43.0 24813 14.3 DETROIT, MICH 70 284396 181538 63.8 10618 5.8 170920 94.2 143946 79.3 134222 73.9 120209 66.2 65349 36.0 24809 13.7 72 276655 186994 67.6 13441 7.2 173553 92.8 148686 79.5 138167 73.9 127821 68.4 86000 46.0 20751 11.1 70 240447 60957 25.4 13254 21.7 47703 78.3 32352 53.1 25514 41.9 20317 33.3 12550 20.6 7498 12.3 72 241809 63826 26.4 15066 23.6 48760 76.4 33042 51.8 26579 41.6 19357 30.3 13750 21.5 8710 13.6 70 241139 85965 35.6 7202 8.4 78763 91.6 73373 85.4 63373 73.7 55895 65.0 29734 34.6 7604 8.8 72 225410 88871 39.4 7824 8.8 81047 91.2 74155 83.4 68080 76.6 59461 66.9 37414 42.1 4184 4.7 70 192458 129220 67.1 12122 9.4 117098 90.6 104688 81.0 102358 79.2 95838 74.2 87731 67.9 55378 42.9 72 186600 129250 69.3 10025 7.8 119225 92.2 109659 84.8 104571 80.9 98776 76.4 87906 68.0 54047 41.8 70 160897 31994 19.9 13040 40.8 18954 59.2 11190 35.0 6470 20.2 3938 12.3 2375 7.4 724 2.3 72 161969 40397 24.9 16057 39.7 24340 60.3 15914 39.4 9008 22.3 6534 16.2 2179 5.4 1649 4.1 70 164736 55648 33.8 1528 2.7 54120 97.3 52380 94.1 50884 91.4 47246 84.9 37505 67.4 12899 23.2 72 154581 59638 38.6 8966 15.0 50672 85.0 47427 79.5 47007 78.8 46424 77.8 35820 60.1 7577 12.7 CLEVELAND, OHIO AL 70 153619 88558 57.6 3725 4.2 84833 95.8 80505 90.9 79015 89.2 75162 84.9 60050 67.8 30852 34.8 72 145196 83596 57.6 4001 4.8 79595 95.2 76719 91.8 75526 90.3 73789 88.3 64904 77.6 32773 39.2 70 145330 137502 94.6 1674 1.2 135828 98.8 133421 97.0 130688 95.0 127792 92.9 95261 69.3 46117 33.5 72 140000 133638 95.5 488 0.4 133150 99.6 130028 97.3 127115 95.1 124972 93.5 100609 75.3 47709 35.7 70 148304 76303 51.5 4979 6.5 71324 93.5 68751 90.1 68268 89.5 63749 83.5 56327 73.8 37979 49.8 72 138714 80158 57.8 5862 7.3 74296 92.7 69235 86.4 65385 81.6 61694 77.0 54015 67.4 35795 44.7 70 133368 4214 3.2 4214 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 72 135780 4509 3.3 4509 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 70 133674 5097 3.8 5097 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 72 131987 5604 4.2 5291 94.4 313 5.6 U 0.0 0 0.0 0 0.0 0 0.0 0 0.0 70 117324 27230 23.2 14189 52.1 13041 47.9 11201 41.1 10664 39.2 9212 33.8 6069 22.3 4303 15.8 72 128889 29363 22.8 24634 83.9 4729 16.1 2343 8.0 2343 8.0 527 1.8 527 1.8 527 1.8 MILWAUKEE, WIS F 70 132349 34355 26.0 4197 12.2 30158 87.8 26193 76.2 20740 60.4 15590 45.4 3939 11.5 0 0.0 72 127986 38060 29.7 5850 15.4 32210 84.6 29849 78.4 27553 72.4 24616 64.7 16349 43.0 3312 8.7 CO 70 125343 6454 5.1 6454 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 C.O 72 126707 8131 6.4 7827 96.3 304 3.7 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 SAN DIEGO, CAL 70 128783 16008 12.4 5146 32.1 10862 67.9 9017 56.3 7428 46.4 3522 22.0 0 0.0 0 0.0 N 72 124487 16492 13.2 5353 32.5 11139 67.5 8284 50.2 7201 43.7 5909 35.8 74 0.4 74 0.4 70 122493 36054 29.4 9237 25.6 26817 74.4 20747 57.5 19794 54.9 19794 54.9 19794 54.9 13345 37.0 72 113644 37100 32.6 26121 70.4 10979 29.6 4860 13.1 2903 7.8 1608 4.3 1608 4.3 0 0.0 COLUMBUS, OHIO 70 109329 29440 26.9 7614 25.9 21826 74.1 15604 53.0 13313 45.2 7181 24.4 1724 5.9 655 2.2 AL 72 106588 31312 29.4 9203 29.4 22109 70.6 16131 51.5 11575 37.0 8720 27.8 3589 11.5 0 0.0 70 105347 20417 19.4 4771 23.4 15646 76.6 12832 62.8 10095 49.4 8426 41.3 5280 25.9 2303 11.3 72 107540 20367 18.9 19524 95.9 843 4.1 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 ST. LOUIS, MO F 70 111233 72965 65.6 1827 2.5 71138 97.5 64166 87.9 60371 82.7 58794 80.6 57435 78.7 36316 49.8 72 105617 72629 68.8 1830 2.5 70799 97.5 67366 92.8 64507 88.8 60238 82.9 53184 73.2 33493 46.1 70 109856 76388 69.5 5925 7.8 70463 52.2 62567 81.9 60034 78.6 56996 74.6 54293 71.1 37053 48.5 72 103839 77504 74.6 3807 4.9 73697 95.1 64960 83.8 58777 75.8 57244 73.9 51317 66.2 24539 31.7 INDIANAPOLIS, IND F 70 106239 38044 35.8 7785 20.5 30259 79.5 22925 60.3 21156 55.6 18331 48.2 11971 31.5 3318 8.7 72 98076 38522 39.3 9667 25.1 28855 74.9 22798 59.2 17798 46.2 16178 42.0 11744 30.5 3121 8.1 BOSTON, MASS F 70 96696 28822 29.8 5174 18.0 23648 82.0 18757 65.1 15205 52.8 11367 39.4 6420 22.3 3172 11.0 72 96239 31728 33.0 5663 17.8 26065 82.2 20525 64.7 15844 49.9 15403 48.5 6082 19.2 1009 3.2 70 105598 72523 68.7 4777 6.6 67746 93.4 63111 87.0 56531 77.9 53863 74.3 47418 65.4 24332 33.6 72 96006 73985 77.1 4606 6.2 69379 93.8 63600 86.0 59917 81.0 57045 77.1 44835 60.6 33090 44.7 *MINUTE DIFFERENCES BETWEEN SUM OF NUMBERS AND TOTALS ARE DUE TO COMPUTER ROUNDING. TABLE 3 A NEGROES IN 100 LARGEST (1972) SCHOOL DISTRICTS, RANKED BY SIZE * NUMBER AND PERCENTAGE ATTENDING SCHOOL AT INCREASING LEVELS OF ISOLATION FALL, 1970 AND FALL, 1972 ELEMENTARY AND SECONDARY SCHOOL SURVEY NEGROES ATTENDING: 0-49.9% 50-100% 80-100% 90-100% 95-100% 99-100% 100% MINORITY MINORITY MINORITY MINORITY MINORITY MINORITY MINORITY TOTAL NEGRO NEGRO SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS DISTRICT PUPILS NUM. PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT 70 93454 3382 3.6 2738 81.0 644 19.0 644 19.0 644 19.0 644 19.0 644 19.0 0 0.0 72 95742 3725 3.9 2731 73.3 994 26.7 336 9.0 336 9.0 336 9.0 336 9.0 0 0.0 DENVER, COL 70 97928 14434 14.7 6431 44.6 8003 55.4 6426 44.5 5406 37.5 5332 36.9 947 6.6 0 0.0 72 91616 15729 17.2 7162 45.5 8567 54.5 5999 38.1 5659 36.0 5574 35.4 1110 7.1 0 0.0 70 85117 13766 16.2 6264 45.5 7502 54.5 2881 20.9 2749 20.0 2749 20.0 2270 16.5 667 4.8 72 90182 14313 15.9 14158 98.9 155 1.1 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 ALBUQUERQUE, NM N 70 83781 2048 2.4 742 36.2 1306 63.8 779 38.0 555 27.1 191 9.3 0 0.0 0 0.0 72 86658 2221 2.6 910 41.0 1311 59.0 888 40.0 403 18.1 152 6.8 0 0.0 0 0.0 70 85859 5379 6.3 3793 70.5 1586 29.5 793 14.7 793 14.7 48 0.9 48 0.9 48 0.9 72 86963 8412 9.7 4308 51.2 4104 48.8 2117 25.2 1572 18.7 1572 18.7 0 0.0 0 0.0 70 85270 15398 18.1 6265 40.7 9133 59.3 8005 52.0 5125 33.3 4090 26.6 2553 16.6 2553 16.6 72 86407 16060 18.6 6991 43.5 9069 56.5 6069 37.8 3588 22.3 3588 22.3 2894 18.0 2894 18.0 TENN 70 95313 23473 24.6 5877 25.0 17596 75.0 15727 67.0 14643 62.4 11674 49.7 9276 39.5 4942 21.1 72 85406 23866 27.9 18271 76.6 5595 23.4 611 2.6 0 0.0 0 0.0 0 0.0 0 0.0 70 88095 23542 26.7 2309 9.8 21233 90.2 18845 80.0 17725 75.3 17289 73.4 15363 65.3 11399 48.4 72 82268 24416 29.7 5076 20.8 19340 79.2 15895 65.1 15044 61.6 12172 49.9 10901 44.6 2295 9.4 SAN FRANCISCO, CAL F 70 91150 25988 28.5 3681 14.2 22307 85.8 14417 55.5 8239 31.7 6776 26.1 741 2.9 281 1.1 72 81970 25055 30.6 1312 5.2 23743 94.8 5264 21.0 2110 8.4 1870 7.5 92 0.4 92 0.4 NC / 70 82507 25404 30.8 23050 90.7 2354 9.3 1053 4.1 445 1.8 76 0.3 0 0.0 0 0.0 72 79813 25821 32.4 25251 97.8 570 2.2 375 1.5 375 1.5 375 1.5 219 0.8 0 0.0 NEWARK, NJ N 70 78456 56651 72.2 1620 2.9 55031 97.1 51685 91.2 48959 86.4 46541 82.2 35843 63.3 11217 19.8 72 78492 56736 72.3 1300 2.3 55436 97.7 54074 95.3 49333 87.0 47731 84.1 41074 72.4 10455 18.4 CINCINNATI, OHIO AL 70 84199 37853 45.0 6399 16.9 31454 83.1 20661 54.6 14954 39.5 12068 31.9 10266 27.1 5924 15.7 72 77878 36808 47.3 4258 11.6 32550 88.4 21443 58.3 14391 39.1 12950 35.2 9649 26.2 4047 11.0 70 74021 9587 13.0 7547 78.7 2040 21.3 335 3.5 229 2.4 0 0.0 0 0.0 0 0.0 72 77083 9713 12.6 8617 88.7 1096 11.3 184 1.9 184 1.9 184 1.9 0 0.0 0 0.0 SEATTLE, WASH 70 83924 10736 12.8 4358 40.6 6378 59.4 2690 25.1 330 V 3.1 330 3.1 0 0.0 0 0.0 72 75239 10837 14.4 4808 44.4 6029 55.6 1475 13.6 751 6.9 315 2.9 0 0.0 0 0.0 CLARK CO,, NEV (LAS VEGAS) F 70 73822 9567 13.0 5960 62.3 3607 37.7 2870 30.0 2870 30.0 2870 30.0 2472 25.8 515 5.4 72 75223 10092 13.4 10092 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 JEFFERSON CO., COL (LAKEWOOD) ? 70 67675 71 0.1 71 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 72 74185 144 0.2 144 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 70 77253 11853 15.3 1099 9.3 10754 90.7 7950 67.1 7124 60.1 6096 51.4 3395 28.6 1310 11.1 72 72305 11443 15.8 924 8.1 10519 91.9 7995 69.9 6441 56.3 5571 48.7 3500 30.6 487 4.3 70 77822 10672 13.7 2933 27.5 7739 72.5 7332 68.7 7332 68.7 6153 57.7 3078 28.8 1887 17.7 72 71190 10950 15.4 4768 43.5 6182 56.5 3329 30.4 2712 24.8 2305 21.1 426 3.9 0 0.0 PITTSBURGH, PA 70 73481 29595 40.3 6900 23.3 22695 76.7 17009 57.5 16714 56.5 13596 45.9 9942 33.6 3905 13.2 72 70080 29274 41.8 6659 22.7 22615 77.3 15612 53.3 14835 50.7 13142 44.9 8521 29.1 3086 10.5 PORTLAND,ORE N 70 76206 7008 9.2 4352 62.1 2656 37.9 1494 21.3 1217 17.4 0 0.0 0 0.0 0 0.0 72 68632 7307 10.6 4933 67.5 2374 32.5 1146 15.7 635 8.7 367 5.0 0 0.0 0 0.0 LA 70 64198 24785 38.6 5457 22.0 19328 78.0 17810 71.9 17022 68.7 15612 63.0 13414 54.1 7211 29.1 72 67342 26184 38.9 5714 21.8 20470 78.2 18404 70.3 17566 67.1 17285 66.0 15177 58.0 6988 26.7 70 66760 18338 27.5 4597 25.1 13741 74.9 7445 40.6 5392 29.4 2184 11.9 462 2.5 0 0.0 72 67030 19172 28.6 12588 65.7 6584 34.3 2670 13.9 519 2.7 0 0.0 0 0.0 0 0.0 70 69791 31034 44.5 5658 18.2 25376 81.8 16888 54.4 14618 47.1 12808 41.3 9635 31.0 3141 10.1 72 66263 30255 45.7 11448 37.8 18807 62.2 14026 46.4 11967 39.6 9906 32.7 9079 30.0 4376 14.5 70 63572 13201 20.8 6425 48.7 6776 51.3 4791 36.3 4186 31.7 2577 19.5 2577 19.5 2577 19.5 72 66030 13982 21.2 13005 93.0 977 7.0 0 0.0 0 0.0 0 0.0 0 0.0 o 0.0 OAKLAND, CAL 70 67830 38567 56.9 2498 6.5 36069 93.5 28988 75.2 22601 58.6 18465 47.9 5102 13.2 991 2.6 72 65189 39121 60.0 2678 6.8 36443 93.2 30530 78.0 25165 64.3 19220 49.1 6877 17.6 465 1.2 KANSAS CITY, MO 70 70503 35375 50.2 3301 9.3 32074 90.7 29504 83.4 26446 74.8 23342 66.0 20344 57.5 AL 5275 14.9 72 65414 35578 54.4 3789 10.6 31789 89.4 31614 88.9 29502 82.9 28281 79.5 20279 57.0 10154 28.5 BUFFALO, NY 70 70305 27069 38.5 7249 26.8 19820 73.2 16172 59.7 15181 56.1 14934 55.2 13168 48.6 1785 6.6 72 64296 26548 41.3 7568 28.5 18980 71.5 17145 64.6 13658 51.4 13658 51.4 10967 41.3 3220 12.1 FORD *MINUTE DIFFERENCES BETWEEN SUM OF NUMBERS AND TOTALS ARE DUE TO COMPUTER ROUNDING. 13 TABLE 3 - A NEGROES IN 100 LARGEST (1972) SCHOOL DISTRICTS, RANKED BY SIZE NUMBER AND PERCENTAGE ATTENDING SCHOOL AT INCREASING LEVELS OF ISOLATION FALL, 1970 AND FALL, 1972 ELEMENTARY AND SECONDARY SCHOOL SURVEY NEGROES ATTENDING: 0-49.9% 50-100% 80-100% 90-100% 95-100% 99-100% 100% MINORITY MINORITY MINORITY MINORITY MINORITY MINORITY MINORITY TOTAL NEGRO NEGRO SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS DISTRICT PUPILS NUM. PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT LONG BEACH, CAL 70 69927 6349 9.1 2219 35.0 4130 65.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 N 72 63838 7100 11.1 3222 45.4 3878 54.6 561 7.9 0 0.0 0 0.0 0 0.0 0 0.0 OMAHA, NEB 70. 63516 11786 18.6 3145 26.7 8641 73.3 7582 64.3 5663 48.0 3069 26.0 825 7.0 0 0.0 72 63125 12220 19.4 4813 39.4 7407 60.6 6368 52.1 4412 36.1 3251 26.6 0 0.0 o 0.0 TUCSON, ARIZ 5.4 835 27.0 2253 73.0 1068 34.6 572 18.5 398 12.9 0 0.0 0 0.0 AL 70 57346 3088 3299 5.2 1171 35.5 2128 64.5 1317 39.9 611 18.5 471 14.3 42 1.3 25 0.8 72 62878 GRANITE, UTAH (SALT LAKE CITY) 70 62767 83 0.1 83 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 N 72 62606 127 0.2 127 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 o 0.0 PASO, 70 62545 1887 3.0 1090 57.8 797 42.2 383 20.3 350 18.5 284 15.1 193 10.2 60 3.2 72 62404 1866 3.0 1307 70.0 559 30.0 322 17.3 261 14.0 227 12.2 12 0.6 0 0.0 BREVARD CO ELA 70 61908 6618 10.7 5876 88.8 742 11.2 742 11.2 742 11.2 742 11.2 0 0.0 0 0.0 72 62283 6961 11.2 6340 91.1 621 8.9 621 8.9 621 8.9 621 8.9 0 0.0 0 0.0 TOLEDO, OHIO 70 61699 16407 26.6 3954 24.1 12453 75.9 9725 59.3 7957 48.5 6187 37.7 4303 26.2 579 3.5 72 61694 16816 27.3 4277 25.4 12539 74.6 9606 57.1 8813 52.4 5682 33.8 1672 9.9 o 0.0 MINNEAPOLIS, MINN F 70 66938 5935 8.9 3416 57.6 2519 42.4 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 72 61565 6510 10.6 4372 67.2 2138 32.8 427 6.6 0 0.0 0 0.0 0 0.0 0 0.0 OKI AHOMA 70 70042 16109 23.0 3442 21.4 12667 78.6 12095 75.1 12095 75.1 12095 75.1 10911 67.7 3672 22.8 72 60275 15869 26.3 12236 77.1 3633 22.9 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 70 61994 33869 54.6 5338 15.8 28531 84.2 24887 73.5 23601 69.7 21831 64.5 18630 55.0 11360 33.5 72 57729 34290 59.4 4012 11.7 30278 88.3 26084 76.1 25103 73.2 21819 63.6 17945 52.3 12189 35.5 WICHITA, KAN V 70 63811 9362 14.7 6025 64.4 3337 35.6 2950 31.5 2950 31.5 2260 24.1 975 10.4 371 4.0 72 57254 9367 16.4 9119 97.4 248 2.6 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 POLK FLA 70 54380 11899 21.9 8622 72.5 3277 27.5 1444 12.1 1353 11.4 619 5.2 0 0.0 0 0.0 72 57006 12510 21.9 9539 76.3 2971 23.7 1431 11.4 1308 10.5 1308 10.5 0 0.0 O 0.0 70 57222 12788 22.3 12594 98.5 194 1.5 72 0.6 0 0.0 0 0.0 o 0.0 0 0.0 72 56930 12680 22.3 12511 98.7 169 1.3 0 0.0 0 0.0 0 0.0 o 0.0 O 0.0 70 54974 8284 15.1 1323 16.0 6961 84.0 6507 78.5 6507 78.5 5541 66.9 3548 42.8 1216 14.7 72 55861 8359 15.0 3173 38.0 5186 62.0 4965 59.4 4623 55.3 3653 43.7 2911 34.8 2278 27.3 70 57410 27059 47.1 8332 30.8 18727 69.2 16197 59.9 14539 53.7 12764 47.2 9066 33.5 3675 13.6 72 55562 26965 48.5 7381 27.4 19584 72.6 16396 60.8 14980 55.6 11453 42.5 9531 35.3 5438 20.2 70 59717 16776 28.1 3240 19.3 13536 80.7 13159 78.4 13026 77.6 12871 76.7 12871 76.7 8020 47.8 72 55448 13552 24.4 7593 56.0 5959 44.0 4983 36.8 4983 36.8 4717 34.8 4717 34.8 2941 21.7 FRESNO, CAL AL 70 57508 5133 8.9 1255 24.4 3878 75.6 3441 67.0 2628 51.2 2628 51.2 2073 40.4 16 0.3 72 54990 5137 9.3 1482 28.8 3655 71.2 3036 59.1 2284 44.5 1766 34.4 482 9.4 0 0.0 AKRON, OHIO N 70 56426 15413 27.3 5624 36.5 9789 63.5 7594 49.3 3661 23.8 2936 19.0 1121 7.3 0 0.0 72 54329 15679 28.9 5457 34.8 10222 65.2 6089 38.8 3450 22.0 3450 22.0 997 6.4 564 3.6 SAN JUAN, CAL (CARMICHAEL) N 70 55621 217 0.4 217 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 72 53116 300 0.6 300 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 PAR, 70 53866 26401 49.0 6777 25.7 19624 74.3 17959 68.0 17200 65.1 16419 62.2 13864 52.5 11740 44.5 72 52336 26064 49.8 6960 26.7 19104 73.3 17119 65.7 16461 63.2 14715 56.5 12368 47.5 9778 37.5 70 52888 3404 6.4 2934 86.2 47C 13.8 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 72 52250 3331 6.4 2985 89.6 346 10.4 115 3.5 0 0.0 0 0.0 0 0.0 0 0.0 DAYTON, OHIO F 70 566 09 23013 40.7 2990 13.0 20023 87.0 17900 77.8 16897 73.4 16897 73.4 13847 60.2 2183 9.5 72 52162 23254 44.6 3449 14.8 19805 85.2 17119 73.6 16475 70.8 15032 64.6 12849 55.3 5143 22.1 GARDEN GROVE, CAL 70 52684 110 0.2 110 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 N 72 51382 206 0.4 192 93.2 14 6.8 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 V.V. 70 53197 25674 48.3 3013 11.7 22661 88.3 19884 77.4 17556 68.4 13522 52.7 8527 33.2 1094 4.3 72 49133 25078 51.0 3675 14.7 21403 85.3 20564 82.0 18502 73.8 16229 64.7 10334 41.2 4636 18.5 SACRAMENTO, CAL 70 52218 8012 15.3 5273 65.8 2739 34.2 302 3.8 264 3.3 264 3.3 0 0.0 0 0.0 72 48774 8201 16.8 5236 63.8 2965 36.2 482 5.9 240 2.9 0 0.0 0 0.0 0 0.0 70 55117 24757 44.9 8139 32.9 16618 67.1 13827 55.9 11469 46.3 9954 40.2 9299 37.6 6457 26.1 72 48701 24120 49.5 9317 38.6 14803 61.4 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 ST. PAUL, MINN 70 49732 3163 6.4 2043 64.6 1120 35.4 340 10.7 340 10.7 340 10.7 0 0.0 0 0.0 72 48059 3259 6.8 2178 66.8 1081 33.2 546 16.8 349 10.7 349 10.7 0 0.0 0 0.0 70 46987 13443 28.6 5548 41.3 7895 58.7 2225 16.6 515 3.8 0 0.0 0 0.0 0 0.0 72 47947 13459 28.1 6204 46.1 7255 53.9 1937 14.4 957 7.1 0 0.0 0 0.0 0 0.0 14 TABLE 3 A NEGROES IN 100 LARGEST (1972) SCHOOL DISTRICTS, RANKED BY SIZE * NUMBER AND PERCENTAGE ATTENDING SCHOOL AT INCREASING LEVELS OF ISOLATION FALL, 1970 AND FALL, 1972 ELEMENTARY AND SECONDARY SCHOOL SURVEY NEGROES ATTENDING: 0-49.9% 50-100% 80-100% 90-100% 95-100% 99-100% 100% MINORITY MINORITY MINORITY MINDRITY MINORITY MINORITY MINORITY TOTAL NEGRO NEGRO SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS SCHOOLS DISTRICT PUPILS NUM. PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT NUMBER PCT 70 45245 4793 10.6 4187 87.4 606 12.6 606 12.6 606 12.6 0 0.0 0 0.0 0 0.0 72 47919 4855 10.1 4855 100.0 0 0.0 0 0.0 C 0.0 0 0.0 0 0.0 0 0.0 70 44504 1397 3.1 1397 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 72 47053 1299 2.8 1299 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 NC 70 49514 13727 27.7 5077 37.0 8650 63.0 7884 57.4 7822 57.0 7822 57.0 7337 53.4 6015 43.8 72 46675 14164 30.3 13483 95.2 681 4.8 390 2.8 330 2.3 330 2.3 330 2.3 330 2.3 MT. DIABLO, CAL (CONCORD) 70 48395 416 0.9 416 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 N U.C 72 46457 427 0.9 427 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 FLINT, MICH 70 45659 18475 40.5 3512 19.0 14963 81.0 7051 38.2 5621 30.4 4816 26.1 1367 7.4 385 2.1 AL 72 46115 20493 44.4 3502 17.1 16991 82.9 8984 43.8 5813 28.4 4252 20.7 574 2.8 243 1.2 70 46292 2590 5.6 71 2.7 2519 97.3 2176 84.0 1398 54.0 998 38.5 317 12.2 12 0.5 72 45567 2517 5.5 250 9.9 2267 90.1 1972 78.3 1476 58.6 830 33.0 348 13.8 0 0.0 GARY, IND 30169 64.7 3.5 29109 96.5 27673 91.7 25850 F 70 46595 1060 85.7 24009 79.6 19544 64.8 11781 39.1 72 44830 31200 69.6 1267 4.1 29933 95.9 29149 93.4 28591 91.6 28346 90.9 16971 54.4 7160 22.9 SHAWNEE MISSION, KAN 70 45289 140 0.3 140 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 72 44428 170 0.4 170 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 RICHMOND 70 47988 30785 64.2 3609 11.7 27176 88.3 17485 56.8 13776 44.7 8680 28.2 8680 28.2 2954 9.6 72 43825 30746 70.2 1962 6.4 28784 93.6 11868 38.6 1488 4.8 200 0.7 34 0.1 34 0.1 ROCHESTER, NY N 70 45500 15082 33.1 6161 40.9 8921 59.1 6661 44.2 3651 24.2 3651 24.2 652 4.3 0 0.0 72 43347 16440 37.9 5104 31.0 11336 69.0 5289 32.2 4321 26.3 3682 22.4 1581 9.6 622 3.8 FT. WAYNE, IND 7.9 0 0.0 0 0.0 70 43400 6492 15.0 1921 29.6 4571 70.4 3194 49.2 2634 40.6 512 72 43245 6961 16.1 3568 51.3 3393 48.7 2341 33.6 1849 26.6 388 5.6 0 0.0 0 0.0 DES MOINES, IOWA 8.3 2193 58.5 1558 41.5 24 0.6 0 0.0 0 0.0 0 0.0 C 0.0 70 45375 3751 72 43226 3913 9.1 2201 56.2 1712 43.8 583 14.9 0 0.0 0 0.0 0 0.0 0 0.0 ROCKFORD, ILL 70 43116 5300 12.3 2965 55.9 2335 44.1 412 7.8 412 7.8 0 0.0 0 0.0 0 0.0 N 370 0 0.0 0 0.0 0 0.0 72 41364 5636 13.6 2994 53.1 2642 46.9 601 10.7 6.6 TEX 70 39771 22 0.1 22 100.0 C 0.0 0 0.0 0 0.0 0 0.0 o 0.0 0 0.0 72 40509 37 0.1 37 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 o 0.0 RICHMOND, CAL N 70 41492 11389 27.4 5730 50.3 5659 49.7 3781 33.2 3405 29.9 3405 29.9 1621 14.2 343 3.0 72 39952 12106 30.3 4979 41.1 7127 58.9 3406 28.1 3105 25.6 3105 25.6 1667 13.8 291 2.4 JERSEY CITY, NJ 9317 54.6 8130 47.7 6595 38.7 1091 6.4 0 0.0 N 70 38430 17058 44.4 1877 11.0 15181 89.0 72 38616 17548 45.4 1861 10.6 15687 89.4 11272 64.2 8176 46.6 7613 43.4 3332 19.0 0 0.0 70 38868 10251 26.4 3473 33.9 6778 66.1 6180 60.3 4310 42.0 1062 10.4 0 0.0 0 0.0 6.1 164 1.6 72 38520 10306 26.8 3166 30.7 7140 69.3 6048 58.7 5473 53.1 3410 33.1 624 OR 70 42010 13074 31.1 1564 12.0 11510 88.0 11214 85.8 10572 80.9 10421 79.7 9601 73.4 8093 61.9 10311 78.5 2820 21.5 691 5.3 242 1.8 0 0.0 0 0.0 0 0.0 72 38349 13131 34.2 TOTAL (100) DISTRICTS 70 10564504 3396909 32.2 546100 16.1 2850809 83.9 2434965 71.7 225015 65.5 1999173 58.9 1510481 44.5 707377 20.8 72 10275264 3465635 33.7 701943 20.3 2763692 79.8 2343442 67.6 2118590 61.1 1931474 55.7 1456090 42.0 632340 18.3 *MINUTE DIFFERENCES BETWEEN SUM OF NUMBERS AND TOTALS ARE DUE TO COMPUTER ROUNDING. 15 HEALTH EDUCATION: DLFART DEPARTMENT DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE OFFICE OF THE SECRETARY USA WASHINGTON, D.C. 20201 JUN 1 1976 MEMORANDUM FOR THE HONORABLE RICHARD D. PARSONS Per your request, we have compiled the attached lists of school deseg- regation cases in the Federal courts which are: 1) on appeal or likely to be appealed; and 2) pending at the district court level. For each case in which an appeal is pending or likely, we have briefly indicated the current status and general issue involved. hinty Martin H. Gerry Director Office for Civil Rights Attachment & FORD I. Cases in Which an Appeal is Pending or Likely (*indicates cases to which the United States is a party) *Austin, Texas Secondary school plan implemented 1971-72. School board may seek appeal of a plan approved by the court in May 1976 for elementary schools. Boston, Massachusetts Four applications for certiorari are pending before the Supreme Court. Issue involves the court-ordered remedy to de jure segregation in the district whereby 25,000 of the 80,000 students are being transported. Buffalo, New York District Court found de jure segregation on April 30, 1976. No plan has been ordered yet. Dallas, Texas A minimal plan affecting grades 4-8 approved by the court on April 7, 1976. The NAACP has appealed the plan because they believe the remedy is insufficient. Dayton, Ohio A plan was approved in March 1976. The school board has appealed presumably because they contend the Master's plan is too broad. *Indianapolis, Indiana Case has been in Court of Appeals since Fall 1975. Issue is whether interdistrict relief is appropriate. Plan stayed pending appeal involves 1-way busing of 6543 blacks from city to all-white suburbs. Lansing, Michigan District court issued an order for further desegregation. May be appealed. Louisville, Kentucky GERALD R. FORD Plan approved in August 1975 (busing 22,000 of 120,000) and modified recently. Case is pending on appeal with oral argument set for June 14. Milwaukee, Wisconsin District court found de jure segregation in January 1976. School board has appealed that finding. Page 2 *Omaho, Nebraska District court issued a busing order in April 1976. Black plaintiff-intervenors appealed because the first grade was excluded from the order. Indications are that the school board will cross appeal. *Pasadena, California Before the Supreme Court on issue of whether Pasadena can get injunction dismissed or modified. (Plan implemented in 1970-71). St. Louis, Missouri Plan approved by district court does not provide for significant student desegregation. NAACP has asked the circuit to permit them to intervene. *Tulsa, Oklahoma Plan implemented in 1971-72. Pending before district court on issue of further desegregation. Wilmington, Delaware Three-judge court issued order two weeks ago. Case involves interdistrict remedy. II. Cases Pending in Federal District Court in which there Has Not Been a Finding of De Jure Segregation Cleveland, Ohio Cincinnati, Ohio Columbus, Ohio Youngstown, Ohio Kansa City, Kansas Tucson, Arizona (OCR will institute administrative proceedings) [June 1976 Wednesday 11:30 -- Congressional Meeting begins with photo. Advance text of message made available to press as soon as doors close on meeting. 12:30 -- President reads statement to press. Message sent to the Hill with legislation. Levi, Mathews conduct joint briefing at WH. Early afternoon -- Senators and Congressmen read statements on camera on the Hill (Griffin, Roth, Quie, McCollister if possible). Afternoon -- Packet of materials to advocates. Thursday A.M. -- Levi, Mathews on one of morning talk shows (Today Show). P.M. -- Levi, Mathews hit the road to meet with editorial boards of NY Times, WSJ, Post, Christian Science Monitor, LA Times. If Mathews travels alone, he should take Justice rep with him. Sponsors of busing legislation announced on the Hill. Friday Levi should have op ed piece appear in the NY Times (sooner the better). Could be following week in response to negative editorial. Sunday Levi, Mathews appear together on one of the talk shows. QERMLE FORD LIBRARY Sources that could be very helpful: The Solicitor General Former Solicitor General Griswold Elliot Richardson Paul Fruend Some of participants in your meetings Sources that could be very harmful if they are critical Senator Brooke Arthur Flemming Stan Pottinger Marvin Esch R.FORD MERALD [vine 1976?] JMC BUSING NOTES FIRMMESS LEADER Sutup KNOWLEDE com PASSION BAL AN CE RESPONSIBLE L THOU GHTFUL live of velsates Get both louin Day How a doo Rarh FORD LIBRARY & OERALD Brown Brown Dilibech "II The Green Alexal ACT FORD LIBRARY & GERALD 60 T7 58 54 76 54 ata 08 4 Before due objective excelity of opportunity me need - puper out octipiente = and to to olver wripe dis midian prouds an opperts The for all D / chat of steps To education am mena her The due and Some be toluer and to and autration r) that of How for we're Som - now 100% 100 for & So 50 3) W states by - state avalys of Known problem 4) Fach ml Don Pure FORD LIBRARY & OERALD 5 n < Columan 6) n n Each auto winno 3 elemith they fored s of whter t of procure 1. Vegerlation to cerfres musly & GERALD R. FORD LIBRARY 2. fun wgat core 3. aimt commuts m funder plus ways to vith de sign NOT to greets schulu when ants fan then to bur coorducted Caupam for an was objecture to about 1 to w form and a quite not is when Pripm hu your pm Mit events D The election wide num WA tart y The by it when exolit The cant on What A is the Process of Ichool GERALD R. FORD In con fereur fulk GERALD R. FORD 1/* I quick August prom q. I'm bong centrons J P / leaus How w andm in Oth Preva in neeter P How do Then for to with put Adm publect Oct by How we do want me doct children Trankto 7 into paph me dont want any man school During than agmit you fear and a louration the me w release last its crime and violence 1 The wourdly wobile w south so waited your last sunction - to juin this but / w 1 liem, better you, plen the & bin checken up R. FORD GERALD JUNE 1976 SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY July BUSING CALENDAR FRIDAY SATURDAY 1 2 3 5 President met w/Mathews, Levi et al 6 7 8 9 10 11 12 President met President met w/Sec. Coleman w/county reps who desegregated President met w/academic & school board grp. 13 14 15 16 17 18 19 President met Draft legislation President w/civil rights ready meets w/10 group Draft message constitutional ready experts President meets w/educators 20 21 22 23 24 25 26 Legislation & President meets Message cleared w/Republican & ready to be leaders sent feuds President meets Message to w/Republican Congress Butri advisory group By have, Pottuge Every FORD 27 LIBRA 28 29 30 R. 02820 HEALTH. OF EDUCATION: DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE OFFICE OF THE SECRETARY U.S.A. WASHINGTON, D.C. 20201 JUN 1 1976 MEMORANDUM FOR THE HONORABLE RICHARD D. PARSONS Per your request, we have compiled the attached lists of school deseg- regation cases in the Federal courts which are: 1) on appeal or likely to be appealed; and 2) pending at the district court level. For each case in which an appeal is pending or likely, we have briefly indicated the current status and general issue involved. health Martin H. Gerry Director Office for Civil Rights Far Attachment is GERALD I. Cases in Which an Appeal is Pending or Likely (*indicates cases to which the United States is a party) *Austin, Texas Secondary school plan implemented 1971-72. School board may seek appeal of a plan approved by the court in May 1976 for elementary schools. Boston, Massachusetts Four applications for certiorari are pending before the Supreme Court. Issue involves the court-ordered remedy to de jure segregation in the district whereby 25,000 of the 80,000 students are being transported. Buffalo, New York District Court found de jure segregation on April 30, 1976. No plan has been ordered yet. Dallas, Texas A minimal plan affecting grades 4-8 approved by the court on April 7, 1976. The NAACP has appealed the plan because they believe the remedy is insufficient. Dayton, Ohio A plan was approved in March 1976. The school board has appealed presumably because they contend the Master's plan is too broad. *Indianapolis, Indiana Case has been in Court of Appeals since Fall 1975. Issue is whether interdistrict relief is appropriate. Plan stayed pending appeal involves 1-way busing of 6543 blacks from city to all-white suburbs. Lansing, Michigan District court issued an order for further desegregation. May be appealed. Louisville, Kentucky Plan approved in August 1975 (busing 22,000 of 120,000) and modified recently. Case is pending on appeal with oral argument set for June 14. Milwaukee, Wisconsin GERALO District court found de jure segregation in January 1976. School board has appealed that finding. Page 2 *Omaho, Nebraska District court issued a busing order in April 1976. Black plaintiff-interyenors appealed because the first grade was excluded from the order. Indications are that the school board will cross appeal. *Pasadena, California Before the Supreme Court on issue of whether Pasadena can get injunction dismissed or modified. (Plan implemented in 1970-71). St. Louis, Missouri Plan approved by district court does not provide for significant student desegregation. NAACP has asked the circuit to permit them to intervene. *Tulsa, Oklahoma Plan implemented in 1971-72. Pending before district court on issue of further desegregation. Wilmington, Delaware Three-judge court issued order two weeks ago. Case involves interdistrict remedy. II. Cases Pending in Federal District Court in which there Has Not Been a Finding of De Jure Segregation Cleveland, Ohio Cincinnati, Ohio Columbus, Ohio Youngstown, Ohio Kansa City, Kansas Tucson, Arizona (OCR will institute administrative proceedings) FORD GERALD [June 19767 Corrected Version 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." 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 the award of injunctive and other equitable relief in school desegregation 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 remedy, by only such means as are necessary and appropriate to that end, the degree of concentration by race, color or national origin in the stu- dent population of the schools that is attributable to such acts of unlawful discrimination. FORD LIBRARY & 07V838 -2- (b) The provisions of this Title shall apply to all proceedings for the award or modification of injunctive and other equitable relief, after the date of its enactment, seeking the desegregation of public schools under Federal law, but shall not apply to proceedings seeking a reduction of such relief awarded prior to the date of its enactment except as provided in Section 107 of this Title. 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 adminis- trative control over or otherwise-directing the operations of one or more of the public elementary or secondary schools of a city, town, county or other political subdivision 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 second- ary schools. (c) "Desegregation" " means the elimination of unlawful discrimination on the part of a local or State education agency, and the elimination of the effects of such discrimin- ation in the operation of its schools. FORE HALO -3- (d) "Unlawful discrimination" means action by a local or State education agency which, in violation of federal law, discriminates against students on the basis of race, color or national origin. (e) "State" means any of the States of the Union and the District of Columbia. Sec. 103. Liability. A local or State education agency shall be held sub- ject (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 discrimination and (b) to relief under Section 105 of this Act if the Court further finds that the act or acts of unlawful discrimination have caused a greater present degree of concentration, by race, color or national origin, in the student population of any school than would have existed had no such act occurred. 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 education agency has engaged or is engaging in an act or acts of unlaw- ful discrimination, the Court shall enter an order enjoining the continuation or future commission of any such act or acts -4- and providing any other relief necessary and appropriate to prevent such act or acts from occurring. Sec. 105. Relief - Orders eliminating the present effects of unlawful acts on concentrations of students. (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 have caused a greater present degree of concentration, by race, color, or national origin, in the student population of one or more schools, the Court shall order only such re- lief as may be necessary and appropriate to eliminate the present effects found, in conformity 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 concentration, by race, color, or national origin, in the student population of particular schools affected by unlawful acts of discrimination presently varies from what it would have been had no such acts occurred. If such find- ings are not feasible, because of the great number of schools that were affected or for some other reason; or if the relief -5- awarded will not be effective or feasible as applied only to the particular schools that were affected, because of the demographic changes that have occurred over a period of years, or for some other reason; the Court shall receive evidence, and on the basis of such evidence shall make spe- cific findings, concerning the degree to which the overall pattern of student distribution, by race, color or national origin within 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 be based on conclusions and reasonable infer- ences from evidence adduced, and 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 student distribution, by race, color or national origin in the schools or any particular school is the result of unlawful acts of discrimination. (d) No order entered under this Act or any provision of Federal law shall require the assignment of students to alter the student distribution, by race, color, or national origin, in the student-population~of schools unless, pursuant to -6- this section, the Court finds that the student composition by race, color, or national origin, of particular schools, or the overall pattern of student distribution by race, color, or national origin in the school system, resulted in substantial part from unlawful discrimination by a local or State education agency, and that assignment of students is necessary to adjust the composition, by race, color, or national origin, of particular schools, or the overall pattern of distribution by race, color, or national origin, in the school system, substantially to what it would have been if the unlawful discrimination had not occurred. (e) In all orders entered under this section the Court may, without regard to the other requirements of this section, direct a local or State education agency to institute a pro- gram of voluntary transfers of students to achieve desegre- gation. Sec. 106. Voluntary action; local control. All orders entered under section 105 shall rely, to the greatest extent practicable and consistent with effec- tive 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 -7- to control the operations of the schools except to the mini- mum extent necessary to prevent unlawful discrimination and to eliminate its present effects. Sec. 107. Review of Orders. No court-imposed requirement for assignment of students to alter the student distribuion I by race, color, or national origin, in schools, other than requirements for voluntary transfers, shall remain in effect for a period of more than three years from the date of entry of the order containing such require- ment or, in the case of all final orders entered prior to enactment of this Act, for a period of more than three years from the effective date of this Act unless at the expiration of such period the Court finds: (1) that the defendant has failed to comply with the requirement substantially and in good faith; or (2) that the requirement remains necessary to correct the effects of unlawful discrimination deter- mined under 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 -8- 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, con- tinue in effect a voluntary transfer program to implement relief under section 105 (e) 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 continuing provisions of its order not covered by section 107, the court shall conduct a review every three years to determine whether each such provision shall be continued, modified, or terminated. The court shall afford parties and intervenors a hearing prior to making this determination. TITLE II - Intervention, Mediation, Community Plan Sec. 201. Intervention. The Court shall notify the Attorney General of any proceeding pursuant to subection 105 (b) of this title to which the United States is not a party, and the Attorney General may, in his discretion, and if he determines that -9- the matter is of general public importance, 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. In such action, the United States shall be entitled to the same relief as if it had instituted the action. Sec. 202. Appointment of mediator. (a) The Attorney General is hereby authorized to appoint, at such times and for such period as he deems appro- priate, a Federal school desegregation mediator or mediators to assist the court and the parties in a school desegrega- tion suit. (b) When a mediator is appointed pursuant to this section, he shall provide assistance to the court, the par- ties 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 elimina- tion of unlawful school discrimination. (c) A mediator may request the assistance of other Federal agencies. - 10 - Sec. 203. Committee of community leaders. Whenever the Attorney General of the United States receives the notice required by section 201 of this title, he may, in cooperation with the Secretary of Health, Education and Welfare, the Governor of the State, and the Mayor or other chief executive official of the governing unit involved create a committee composed of the leaders of the community. The committee shall immediately endeavor to fashion a plan to 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 unlawful discrimination over the five year period, with specific dates and goals, that in the meantime required transportation of students can be avoided or minimized. Such a plan shall be submitted to the court for its approval and adoption as an order of the court. If, during the continuance or at the expiration of a plan approved and adopted 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. [June 1976] THE PRESIDENT HAS SEEN ... Areas in which Busing is working well (1) Louisville - see attached article (2) Swann (1971 Supreme Court) court dismissed case July, 11, 1975 84,000 total enrollment - 37,000 bussed (3) Little Rock - totally balanced system - busing in its 4th year (since 1972) - entire system subject to busing, 24,000 students (4) Pulaski County (Arkansas) - largest in State - 28,000 students - 18-20% black (5) Pine Bluff - 15,000 students - total busing (6) Waco, Texas - considerable busing case went to Court of Appeals (5th Cir.) 25,000 - 30,000 students (7) Districts in Florida - busing working well e.g. Hillsborough County Tampa Broward County (8) Government brief in Pasadena lists nearly Tat least 50 districts in which busing is running smoothly. St. Peteroburg. Florida (80,000 enrollment - 30-35,000 bussed) Tampa. florida 1 over 100,000 pupils Carprox. 40,000 bussed) 9) Fort worth (100,000 pupil - 1973 final order bitterly fought - all is well) 10) Nashville (95,000 - total enrollment (1970-71) 49,000 - bussed FORD i LIBRARY GERALD 11) Alabama Jefferson County BessemeR 12) Sarasota, Florida - Ct. sd everything find dismissed case On 9-3-75 Boston School Case - Morgan V. Hennigan 379 F. Supp. 410 (June 1974) Developments prior to District Court Decision on Liability State defendants agreed with virtually all the contentions raised by plaintiffs against city officials in Federal District Court litigation. (a) Massachusetts Racial Imbalance Law - State statute passed in 1965 requiring affirmative action to eliminate racial imbalance in Public School Systems whatever the cause (de jure finding not required) - Statute has been interpreted by Supreme Judicial Court and has been said Statute exceeds requirements of 14th A. - School Board and State involved in extensive litigation in State Court for Boston's failure to comply with the Statute (most recent case decided March 1974, three months before District Court opinion). Supreme Judicial Court found Boston School Committee not in compliance with the Statute and the orders of the State Board as of March 1974. (b) Federal Administrative Proceedings In April 1974, two months prior to Garrity's decision, Boston school officials also sanctioned by HEW with HUD and NSF participating in hearings for persistently continuing segregative practices and intentionally creating a dual school system; defendants were found to be in violation of the Civil Rights Act of 1964. Garrity's Decision on Liability (379 F. Supp. 410 - June 1974) Massive 74-page decision on liability granted in 14th A by Judge Garrity - after 15 day trial, numerous depositions, stipulations and pre-trial pleadings. Facts: Students - Heavy concentration of blacks in some schools and whites in others. - 96,000 students in system when case filed in 71-72. - 59,300 or 61% white; 30,600 or 32% black, 6,500 or 7% other. - 84% of whites attend schools that are more than 80% white - 62% of blacks attend schools more than 70% black. FORD - At least 80% of schools segregated in sense that racial composition out of line with that of the Public School System as a whole. 2 - Of 18 high schools, 5 are in excess of 90% white; 3 are 85% white, 2 are 90% black with white population of less than 2%, 4 are more than 50% black. (same pattern in specialized schools; Boston Latin and Girls Latin - 93% and 89% white; Boston Technical - 84% white; Girls Trade - 75% black; Boston Trade - 66% black) - Of 10 elementary schools ending in Grade 8, 5 are 82% white, one is 94% black, one - 93% minority; of remaining elementary schools (140), 62 are less than 5% black, 2 are 85% or more black. Faculty and Staff 75% of black teachers are in schools more than 50% black 81 schools never had a black teacher. Teachers not assigned on basis of residence Less than 3 of the schools are majority blacks but over 2/3 of the black teachers are sent to them. Defendants do not dispute central fact that schools are segregated. School Policies and Practices (a) Overcrowded white schools; underutilized black schools - whites bussed by black schools with available seats to white schools. (b) Used of portable classrooms to alleviate overcrowding of white schools when non-segregative methods could have achieved same results. (c) Facility utilization and construction practices and conversion has been to promote and perpetuate segregation. Specific examples in of 4 schools opinion at 429. (d) Districting and feeder patterns engaged in for purpose of perpetuating racial segregation. Court found this basically uncomprising attitude to redistricting. (e) Open enrollment and controlled transfer policies managed with intent to discriminate on basis of race. (f) Neighborhood school policy was SO selective as to amount to no policy at all, e.g. extensive busing, open enrollment, feeder pattern, districting - policy a reality only in areas of the city where residential segregation is firmly entrenched (p. 473). FORD 3 Findings looking on record as a whole prove that school authorities have carried out systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities. Predicate exists for finding of dual system. (Keyes) District Court decision affirmed by Court of Appeals Morgan V. Kerrigan, 509 F.2d. 580 (1st Cir. 1974). District Court issued plan on May 10, 1975, Court of Appeals affirmed 530 F.2d. 401 (1976). Plan Approximately 20,000 of Boston's 96,000 students are involved in the busing. Louisville School Case 489 F. 2d. 925 (1973) 510 F. 2d. 1358 (1974) Style of Case: Newburg Area Council, Inc. et. al. V. Board of Education of Jefferson County, Kentucky et. al. (challenged practices of Jefferson County School Board with respect to elementary schools) Companion Case: Haycraft, et. al. V. Board of Education of Louisville, Kentucky et. al. (Sought desegregation of Louisville school system with a plan that included disregarding Louisville and Jefferson County School District boundaries) Procedure Posture: District Court (December 1972) Original class actions separately filed, consolidated but tried separately as to status of each district. In December 1972, District Court dismissed holding that each school district was a unitary system in which all vestiges of State-imposed segregation had been eliminated. Court of Appeals I 489 F. 2d. 925 (6th Cir., December 1973) Court of Appeals reversed and held that (1) Neither Jefferson County School District or Louisville Independent School District was not a unitary system in which all vestiges of State- imposed segregation had been eliminated; (2) Federal District Court has the power to disregard school district lines within a single county in formulating a school desegregation plan. U. S. Supreme Court (July 25, 1974) Cert. granted and Case reversed and remanded for re- consideration in light of Bradley V. Milliken, 418 U.S. 717 (1974), an intervening decision of the Supreme Court in which it held that State-created district lines could not be disregarded in devising an appropriate desegregation plan for the City of Detroit. Court of Appeals II, 510 F.2d. 1358 (December 1974) Court distinguished Milliken on several grounds: 2 (1) In Milliken, unlike Louisville, no evidence of de jure segregation in outlying school districts or of dual school systems. (2) Milliken remedy would have involved 53 school districts over 3 counties; present case, only three districts in single county. (3) By statute in Kentucky, counnty is basic educational unit of State and school district boundaries are merely "artificially drawn school district lines". Also, Kentucky statute expressly authorizes reconsolidation of school district within a single county without the consent of the County School Board. Court of Appeals reaffirmed earlier decision. Cert. denied (95 Supreme Court 1658) When case got back to district court, the Jefferson County and Louisville City became single district administered by Jefferson County (Louisville Board resigned). Plan implemented, (75-76 School Year) apparently working well. (see attached section School Board has appealed desegregation order. Facts: (a) Jefferson County School District: 96,000 students; 4% black (65% of all students prior to desegregation order bussed to school) 74 elementary schools; 5 Junior High; 18 combined Junior and Senior High; 6 Special Schools Pre-Brown: Racially segregated school system, a requirement of Kentucky law. - No high school for black students in County, were bussed to all black high school in City of Louisville (across district lines). - Black elementary school run by County Board located in one area in county having substantial black population. Pre-Brown Black School surrounded by all-white or virtuallyall-white elementary schools which remained black until desegregation order. Three (3) elementary schools contain 56% of black elementary population (argument: existence of small number of one-race FURD schools not in and of itself the mark of a segregative system (Swann) ; counter - language designed to insure that tolerances are allowed for practical problem of dismantlement where other- wise effective plan has been adopted (Northcross V. Memphis, 466 F.2d. 890 (1972) and Louisville I). 3 Two (2) of the three black elementary schools were under- utilized whereas nearby racially identifiable white schools were operating over capacity; Board used portable classrooms and double shifts; white students were not assigned to nearby black schools. (b) Louisville City School District - Boundaries of school district are not coterminus (about 10,000 students, mostly with political boundaries of the city. white, live between boundaries 1956-57 - 45,841 students (33,831 white; 12,010 black) of school district and outer 1972-73 - 45,570 students (22,367 white; 22,933 black) boundaries of the city) - Pre-Brown racially segregated system - Instituted geographic attendance zone plan with open transfer provision in 1956-57 (went to assigned schools unless transfer requested by parents) - 6 high schools (3 between 94-100% black; one of which was Pre-Brown Black) - two over 97% white (one Pre-Brown) - 13 Junior High (5 between 95-100% Black 3 -Pre-Brown 4, 94-99.5% white - 3 Pre-Brown) - 46 Elementary (19 between 82-100% Black; 21, between 89-100% White - all of which Pre-Brown white) Large number of racially identifiable schools in a school district that formerly practiced segregation by law gives rise to a presumption that all vestiges of State-imposed segregation have not been eliminated (Swann) Population shifts and changed racial composition of some schools do not affect the Board's duty to convert fully to a unitary system. The duty to convert was never fully met. There are separate school districts in a single county and the districts are not unitary systems. Distinguishable from Richmond 462 F.2d. 1058 (4th Cir. 1972) affirmed sub. nom 412 U.S. 92 (1973) in which political boundaries were the issue and each of the three (3) districts had a unitary school system. Plan: Two-way busing of 11,300 black and 11,300 white children. Total of 119,000 students in system (country's 12th largest). Black percentage at every school no less than 12 and no more than 40. FORD LIFRAR, [June 1976 HEALTH but SOLD DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE DEPART OFFICE OF THE SECRETARY USA WASHINGTON, D.C. 20201 Jul Acy OFFICE OF THE GENERAL COUNSEL MEMORANDUM FOR THE HONORABLE BOBBIE KILBERG SUBJECT: Title I Services in Areas Undergoing Desegregation--Following the Child During the meeting with the President and community leaders last week, the problem of title I services in school districts undergoing desegregation was discussed. The issue of legislation to correct any problems in this area was also discussed, and we ageed to consider including such a provision in the draft bill the Department has prepared creating the National Community and Education Committee. After considering the matter, however, we have decided not to include such a provision in the draft bill, because such legislation is already pending before the Congress in a form that we believe can be made acceptable and that will be enacted. The Education Amendments of 1976 (S. 2657) now pending floor action in the Senate, has a provision which is designed to permit title I services 11 to follow children who would otherwise lose their title I eligibility because of the implementation of a desegregation plan. Although the provision in the Senate bill has a number of technical problems, we believe those can be corrected before the bill is passed, and that a provision which will adequately deal with the problems of which we are aware will be included in the final bill. We have discussed this problem with a number of members of Congress whose districts are affected, and believe there is sufficient concern in the Congress to ensure FORD GERALD Page 2--THE - HONORABLE BOBBIE KILBERG the inclusion of such a provision. Although the House passed education amendments (H.R. 12835 and H.R. 12851) do not contain such a provision, we are aware of no opposition to the principle in the House of Representatives. WHT William H. Taft IV General Counsel FORD LIBRAN & GERALD Private School Case Gonzalez V. Fairfax-Brewster School et. al, 363 F. Supp. 7200 (E. D. Va. 1973) McCrary V. Runyan, 515 F.2d. 1082 (4th Cir. 1975) 4th Circuit setting en banc, affirmed by a 4 to 3 vote the district court's holding that petitioner's policy of denying admission to blacks to a private school violated 42 U.S.C. 1981 which grants all persons within U. S. jurisdiction the same right to make and enforce contracts, and to the full and equal benefit of all laws and proceedings as is emjoyed by white citizens Court also held that schools were not "truly private" since admission policies evidenced "no plan or purpose of exclusiveness" on non-racial grounds. 1981 is a limitation upon private discrimination and reaches certain private conduct not involving State action. See Jones V. Mayers, 392 U.S. 409 Sullivan V. Little Hunting Park, 396 U.S. 229 Tillman V. Wheaton-Haven Recreation, 410 U.S. 431 The Section (1981) is violated by the schools as long as the basis of exclusion is racial, the black applicant is denied a contractual right which would have been granted to him if he had been white. Attached Justice Department Brief Note: Argument on pps 24-25 GERALE FORD LIERAND 24 We also believe that the court of appeals correctly rejected petitioners' contention that Section 1981 con- fers no judicially enforceable right in the absence of a showing that the schools would have accepted every white applicant. Section 1981 does not bar schools such as petitioners from using racially non-discrimina- tory criteria in screening applicants for admission, any more than it would have prevented the em- ployer in Johnson from discharging employees found to be performing their duties unsatisfactorily. Under this Court's decisions, Section 1981 does, however, pro- hibit private contractual discrimination on the basis of race. As the court of appeals stated, Section 1981 "is violated by the school as long as the basis of [the applicant's] exclusion is racial, for it is then clear that the black applicant is denied a contractual right which would have been granted to him if he had been white" (App. 13) 27 Discrimination on the basis of race occurs of Section 1981 since, again, the exclusionary principle at issue here is racial, rather than neutral, in nature and, as the court of appeals noted, the schools' "actual and potential constituency * is more public than private" (App. 17). Compare Cornelius V. Benevolent Protective Order of Elks, 382 F. Supp. 1182 (D. Conn.) (three-judge court). It is, of course, settled that the public accom- modations provisions of the 1964 Act preserved, rather than super- seded, remedies under the 1866 Act. Sullivan V. Little Hunting Park, Inc., supra, 396 U.S. at 237-238. 27 It is, of course, no basis for objection that Section 1981 thus coerces private parties to enter into contracts they would not other- wise enter into, in a manner inconsistent with otherwise generally applicable contract principles. That is necessarily the effect of the contract provision of Section 1981, wherever it applies. See Rail- way Mail Assn. V. Corsi, 326 U.S. 88, 93-94. 1000 25 if "persons of like qualifications" are not afforded equal "opportunities irrespective of their [race]." Phillips V. Martin Marietta Corp., 400 U.S. 542, 544. Finally, petitioners' racially discriminatory admis- sion policies are not any less within the reach of Section 1981 because those policies did not prevent respondents from attending a publicly funded school or another private school. The essential fact found by the district court, and concurred in by the court of appeals, is that respondents were denied the oppor- tunity to enter into contracts because of their race. In order to establish a violation of Section 1981, respond- ents were not required further to prove that that denial absolutely prevented them from attending school, any more than the employee in Johnson would have had to prove that he could not secure alternative employment, or the plaintiffs in Tillman that they could not gain admission to any other swimming pool, or the plaintiffs in Jones that they could not secure alternative housing, as part of their affirmative cases under Section 1981 or Section 1982. Cf. Missouri ex rel. Gaines V. Canada, supra, 305 U.S. at 348-350. II AS APPLIED TO THE PETITIONER SCHOOLS, SECTION 1981 IS A CONSTITUTIONAL EXERCISE OF CONGRESS' POWER TO ENFORCE THE THIRTEENTH AMENDMENT This Court held in Jones V. Alfred H. Mayer Co., supra, that Congress has the power under the Thirteenth Amendment to do precisely what Section GERALO FORD