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Justices Asked To Review 'Second-Generation' Busing Issues

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Washington--In what some observers consider an important "second-generation" desegregation case, the Nashville, Tenn., school board has asked the U.S. Supreme Court to permit several changes that would increase segregation in some schools but would, school officials say, improve educational quality and parental involvement.

At issue is an order entered in 1981 by U.S. District Judge Thomas A. Wiseman Jr., which would have brought schools in outlying areas of Davidson County into the desegregation plan; permitted secondary schools' enrollments to be up to 85 percent of one race; allowed children in grades 1 through 4 to attend neighborhood schools; and added remedial programs in predominantly black schools.

The U.S. Court of Appeals for the Sixth Circuit temporarily blocked Judge Wiseman's plan in August 1981, throwing the school district into chaos a few days before the scheduled opening of school. Last July, the appellate court rejected Judge Wiseman's plan on its merits. The school board is appealing that decision.

Since 1971, most of the schools in Nashville and surrounding Davidson County have operated under a desegregation order requiring busing and approximate racial balance. About one-third of the district's schools were exempt from the original order because they were in semirural, outlying sections of the county.

In 1971, black students made up 25 per-cent of the district's total enrollment; this year, blacks make up about one-third of the district's nearly 70,000 students.

Both the black plaintiffs and the school board agreed, in court proceedings beginning in 1978, that black elementary-school students bore a disproportionate burden of busing, that black parents found it difficult to participate in their children's schools because of the distance from their homes, and that demographic changes necessitated some changes in attendance zones.

But after Judge Wiseman determined that the entire plan should be re-evaluated, the two sides differed sharply on what should be done to correct the problems.

"We think the school district has been closing schools in black areas so that the burden of transportation falls heavily on black kids," said Bill Lann Lee, a lawyer for the naacp Legal Defense and Educational Fund who is representing the minority plaintiffs in the 27-year-old suit, Kelley v. Metropolitan Board of Education of Nashville and Davidson County. "If you spread [the burden of busing] out, you get more parental involvement."

Preferred Programs

The approach preferred by the school district, and endorsed by Judge Wiseman, is to keep more students in neighborhood schools, to create more magnet schools, and to provide special programs in schools with high concentrations of minority students.

School officials contend that extensive busing has not succeeded in closing the achievement gap between black and white pupils, although black students' performance has improved, according to Marian F. Harrison, a lawyer for the school board.

"This is the first case I've ever seen or read about in which there was an extensive analysis of a racial-balance plan that has been fully implemented and on its effects--whether it works and whether it has the desired results," Ms. Harrison said. "As a second-generation case, the district judge thought maybe some priorities needed to be readjusted."

"I suspect that if we're successful in getting the Supreme Court to review this, and if Judge Wiseman's order is approved, there will be a lot more district courts willing to get into the process," she said.

Mr. Lee, however, contends that the school district did not comply fully with the 1971 order mandating racially balanced schools, and that it is thus impossible to say whether it has succeeded or failed. He agrees with the board, as did the Sixth Circuit, that special remedial programs should be added to the curriculum, but maintains that the new programs should be accompanied by better racial balance in the schools.

"Judge Wiseman recognized that there was continuing discrimination, that you have to solve the problem at the countywide level, and that there is a disparate burden [on black children]. Where he made his mistake was in deciding there should be less desegregation."

The school board's legal arguments are based largely on the Supreme Court's 1976 decision in Pasadena City Board of Education v. Spangler, in which the Court held that a school board, once it has complied with the constitutional requirement to desegregate, is not obligated to continue changing student-assignment patterns to keep schools racially balanced if demographic changes result in imbalances in some schools.

Furthermore, the board contends in a petition filed with the Court late last month, the Sixth Circuit misconstrued the Court's 1971 ruling in Swann v. Charlotte-Mecklenburg Board of Education in rejecting the student-assignment plan proposed by the board.

In Swann, the board's petition points out, the Supreme Court authorized busing for approximate racial balance as an acceptable means of desegregating schools, but has never said that busing is the only acceptable method.

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