The legal implications of a Senate proposal to prohibit federal courts from ordering busing were argued by attorneys and law professors at a Judiciary subcommittee hearing last week.
The group was the second of a series of panels convened by the bill’s sponsor, John P. East, Republican of North Carolina, to testify on the measure before the Subcommittee on the Separation of Powers, of which he is chairman.
Anti-Busing Measure
Senator East’s bill, S 1647, is one of four anti-busing measures introduced in the Senate this year. The House has 16 similar bills pending, and the Subcommittee on Civil and Constitutional Rights has scheduled hearings on several of those later this month.
One issue that produced considerable disagreement among those testifying on the East bill was the legality of the U.S. Supreme Court’s 1971 Swann decision, in which the court first upheld a busing order, in Charlotte, N.C.
That precedent-setting decision amounted to “judicial misbehavior,” according to Lino A. Graglia of the University of Texas. Asserting that “busing is a national tragedy,” he cited the 1964 Civil Rights Act, the 1972 Education Amendments, and the 1974 Equal Educational Opportunities Act--all of which, he said, contained sections strictly prohibiting busing to achieve racial balance.
Mr. Graglia said the Court claimed those statutes applied only to the North when it upheld the Swann decision, an action that “can only be described as scandalous.”
Gerald T. Dunne of St. Louis University argued that in the 1971 case “the Supreme Court went on a virtual binge and thrust its nose into matters beyond its competence.”
“The country needs protection against the aggressive tendency of the Court,” he added.
The opposite position was taken by Daniel H. Pollitt of the University of North Carolina, who said the Court not only made the right move, but that its action was also celebrated 10 years later by the citizens of Charlotte. He cited a dinner last spring honoring the attorney who brought the initial lawsuit against the school system and the judge who first ordered busing.
“The school board...cancelled a scheduled meeting so members could be present and applaud,” he said.
Effectiveness Questioned
Another panelist who supported the Swann decision argued that Senator East’s bill would not be effective in ending mandatory school busing.
“Whether the lower federal courts should be, or constitutionally can be, reduced in one class of cases to rendering opinions that are largely advisory is questionable, but the practical effect of the bill will be to make routine and automatic Supreme Court review that is already available to litigants,” said J. Harold Flannery, an attorney in Boston.
“The state courts...and the lower federal courts will continue to hear and decide school cases, except that one current remedy will henceforth be federally available only from the Supreme Court,” he said.
The extent of Congress’s power to limit the jurisdiction of the federal courts, which is granted under Article III of the U.S. Constitution, also produced contention in the hearing room. Senator East said that the legislative branch of the federal government “is first among equals. We can emasculate the judiciary if we want to.”
“A Radical Alteration”
Mr. Pollitt of North Carolina responded that the Senator was proposing “far more than a busing bill. It is a radical alteration of our system of government [that] would hurt an independent judiciary.”
A representative from the American Bar Association, Robert W. Meserve, also took issue with Mr. East. In submitting the association’s official position, he said, “Neither history, logic, nor constitutional language support the proposition that Congressional power is absolute.”
The appropriateness of busing as a judicial “remedy” to the ills of segregation was disputed by William F. Harvey of Indiana University, who said, “A principal reason that this legislation is needed is that today the judicial remedy has become a wrong.”
He argued that judges who order busing of students are distorting the meaning of the word “person” in the equal-protection clause of the 14th Amendment.
Class Rights
He argued that mass busing of students is unconstitutional because “there is no class remedy available, not even in class actions, for the protection of a ‘person’s’ constitutional right. The 14th Amendment does not refer to ‘class rights,’ and it was not designed to permit a class remedy,” Mr. Harvey said.
In lieu of ordering measures to correct segregation, courts should order “color blind” policies for school assignments, he added.
Burt Neuborne of New York University agreed that S 1647 was directed toward busing as a “remedy,” but he said the bill would reduce federal courts “to the role of issuing advisory opinions. It interferes with the separation of powers.”
This would be unconstitutional, he said, because “Congress may not put its finger on the scales of justice by dictating the outcome [of a lawsuit] indirectly, by denying the court power to enforce its decision,” he said.
Mr. Neuborne added that, “for Congress to pass S 1647, you would be overruling the U.S. Supreme Court. The issue is: Who has the final power to interpret the U.S. Constitution?”
He also cautioned Mr. East not to end busing but to “explore innovative alternatives.” Among them, he suggested, might be: expanding the role of parents in determining desegregation remedies; establishing a “hierarchy of possible remedies, with busing at the very bottom"; identifying alternatives such as magnet schools; taking student safety into consideration in ordering busing; and requiring that busing be ordered only to remedy de jure segregation.
