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Justice Dept. Asks Court To Permit Reduced Busing

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Washington--In its first appeal to the U.S. Supreme Court to halt busing for school desegregation, the Reagan Administration has asked the Court to permit the Nashville, Tenn., school district to eliminate busing for young pupils on the grounds that it has caused educational and social disruption.

In a friend-of-the-court brief filed on Nov. 12, the Justice Department said that the 11-year-old desegregation plan in Nashville placed "a disparate burden on young black children by requiring them to leave their neighborhoods in the early primary grades while white children remained in their neighborhoods during those years." The brief also opposed the use of racial quotas in determining the enrollments of middle schools and high schools.

The move--the first since Assistant Attorney General William Bradford Reynolds earlier this fall invited school boards that oppose busing to enlist the Administration's help in dismantling busing plans--was made in support of the Nashville school board's appeal of a ruling by the U.S. Court of Appeals for the Sixth Circuit.

The Supreme Court has not yet acted upon the Nashville board's petition for review. The Court has declined to review several desegregation cases this fall, and the Justices have turned down numerous major desegregation appeals in the past five years.

But some observers believe the interest of the federal government has significantly increased the chances that the Court will take the Nashville case, Metropolitan County Board of Education of Nashville and Davidson County, Tenn. v. Kelley.

The case is also being closely watched by civil-rights advocates because it is a "second-generation" busing case, meaning one in which a desegregation plan has already been in effect for several years.

The Sixth Circuit in August 1981 blocked implementation of a new desegregation plan for the Nashville metropolitan area that had been approved by U.S. District Judge Thomas A. Wiseman Jr. The plan brought schools in outlying, semirural areas of Davidson County into the desegregation plan for the first time, and it added black studies and remedial classes to the district's programs.

'White Flight'

On the basis of testimony that busing students in grades 1 through 4 hampered parental involvement in the schools and encouraged "white flight," Judge Wiseman approved a plan permitting young pupils to return to neighborhood schools.

Review by the Sixth Circuit was sought by the naacp Legal Defense and Educational Fund Inc., which represents the minority plaintiffs in the case. The legal-defense fund contended that, because the semirural schools had never before been involved in busing and because the school district had closed schools in black neighborhoods, the school system was never fully desegregated. Further, the organization maintained that the new plan would resegregate the school system.

Although the Sixth Circuit upheld the instructional components of the new plan, the appellate court rejected the pupil-assignment portion, relying on the legal precedent of the Supreme Court's 1971 decision in Swann v. Charlotte-Mecklenburg Board of Education.

Because the Swann decision held that educational benefits of neighborhood schools "cannot outweigh the constitutional requirement to desegregate the schools," the circuit court held the neighborhood-school plan for young pupils to be unconstitutional.

In addition, the circuit court rejected the school district's proposal to consider a school desegregated if no more than 85 percent of its students are of the same race. The court said Swann mandated that each school's racial makeup approximate that of the district as a whole; the Nashville-Davidson County school system is 68 percent white and 32 percent black.

The Administration's brief labeled the Sixth Circuit's findings as "erroneous."

"Swann does not foreclose the district court from considering educational, social, and economic costs in fashioning relief, nor does it require the district court to use a systemwide racial ratio in the manner prescribed by the court of appeals," the Justice Department's brief said.

"Lower courts, school boards, and governmental enforcement agencies," it continued, "are clearly in need of guidance regarding the proper interpretation of Swann."

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