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Courts Back Moves To End Busing Plans

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In a major victory for the Reagan Administration, a federal appeals court has upheld the right of the Austin, Tex., school board to dismantle a court-ordered busing plan for students in elementary grades.

In its Dec. 15 decision, the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit said an earlier finding that the district was "unitary," or legally desegregated, freed the Austin board from the jurisdiction of the federal courts and ended its duty to comply with a 1980 consent decree that mandated student busing.

Meanwhile, a federal district judge in Oklahoma City last month ruled that educational considerations, and not an intent to discriminate, were the basis of that school board's decision to discontinue a mandatory student-busing plan. At the same time, U.S. District Judge Luther Bohanon dissolved the 1972 court order that established compulsory student busing in the district.

Although the courts in both cases upheld a return to neighborhood schools in the Texas and Oklahoma districts, their decisions are based on markedly different legal precedents.

They highlight a rift that has existed among federal courts since the U.S. Supreme Court declined in November 1986 to review conflicting opinions reached by two federal appeals courts in an earlier phase of the Oklahoma City suit and in a case involving the Norfolk, Va., public schools. (See Education Week, Nov. 12, 1986.)

At issue in these and a host of other desegregation cases is the degree of freedom that a school board has to abandon a busing plan once the courts have ruled that a district has achieved unitary status.

The Reagan Administration contends that all federal-court orders in such cases are nullified when a district is found to have achieved unitary status.

In contrast, lawyers for minority plaintiffs who have sued districts contend that orders barring segregation remain permanent even after courts have ended their jurisdiction.

William Bradford Reynolds, the assistant attorney general for civil rights, successfully argued the Administration's position in a rare courtroom appearance before the Fifth Circuit Court in the Austin case.

The Justice Department initially backed the plaintiffs in the case in the early 1970's, then switched to the school board's side after President Reagan took office.

"Where school systems have acted in good faith and have eliminated the vestiges of official segregation, such as in Norfolk and Austin, Tex., we have supported efforts to return public schools to local administration, as both the Constitution and common sense command," Mr. Reynolds said in a speech at the National Press Club in Washington D.C. on Dec. 29.

But civil-rights activists argue that a continuing obligation to obey court orders applies in all other non-school civil litigation, including antitrust and securities cases.

"There is no other set of cases where people win only to have [court orders] dismissed," said Napoleon B. Williams, a lawyer for the naacp Legal Defense and Educational Fund who argued the case for the Austin plaintiffs.

"When the courts break up an entity like at&t, they don't say that after three years [the company] can do what it has been forbidden to do," he added. "Why go through busing for three years to then stop it?"

Student Assignments at Issue

Under the plan implemented this fall in Austin, elementary students are assigned to their neighborhood schools, although they may volun4tarily transfer to schools where their race is in the minority. While mandatory busing continues in the higher grades, 16 of the district's 65 elementary schools now have enrollments that are 80 percent or more minority.

In its decision last month, the Fifth Circuit Court ruled on two separate appeals. The bulk of the opinion was devoted to an appeal that the court had earlier declined to hear, in which plaintiffs in the district's original desegregation case argued that the school board's plan to assign elementary students to their neighborhood schools violated the terms of a 1980 consent decree.

Both the district and appeals courts had declined to reopen the original case on the grounds that, pursuant to a court order in 1983, the school district became unitary in 1986 and that the case had been dismissed.

"The carrot of unitariness can be a meaningful incentive for school districts to desegregate only if we abide by our promise to release federal control when the job is done," wrote Judge Patrick Higginbotham in the 17-page opinion.

Effect of Rulings

Desegregation experts agree that the practical effect of rulings such as those in Norfolk and Austin is that those who wish to challenge a unitary school district's alteration of a desegregation plan must file a new lawsuit and bear the burden of proof. They will have to show that not only will the changes resegregate students by race, but also that the school board has a new and deliberate intention to practice discrimination.

Such a standard "imposes an impossible burden for the plaintiffs," said Mr. Williams of the naacp-ldf

"I think we're going to have some serious problems if that were to become the law of the land," concurred William Taylor, a noted desegregation lawyer based in Washington.

The Fifth Circuit Court's ruling in the second appeal in the Austin case seems to bear out these fears. It stemmed from a new lawsuit filed against the district shortly before the start of the school year by black plaintiffs seeking to block the new neighborhood-school plan.

The appeals court sustained the district court's denial of a temporary injunction that would have invalidated the new plan, basing its decision in part on the fact that the black plaintiffs "had failed to prove the required purposeful discrimination."

Contradictory Ruling

By contrast, in the Oklahoma City case the U.S. Court of Appeals for the 10th Circuit ruled in June 1986 that a finding of unitariness did not, in itself, prevent the original lawsuit from being reopened, provided that the court order in the case had not been formally dissolved.

The ruling, in Board of Education v. Dowell, also conflicts with the Austin and Norfolk cases in that it held that the plaintiffs, when petitioning to reopen the lawsuit, had only to prove that the original court order in the case had been violated.

The Oklahoma City school board bore the burden of proving that "changed conditions require modification [of the desegregation order] or that the facts or law no longer require enforcement of the order."

In last month's ruling, Judge Bohanon agreed with the school board's argument that changing housing patterns in the district caused longer bus rides for students and produced "hardship so extreme and unexpected as to make the decree oppressive."

"It is clear from the evidence that the current Oklahoma City School Board," he added, "more so than any this court has read about in reported case law, is conscientiously oriented to its duty to operate a unitary school system."

The plaintiffs in Oklahoma City have announced that they will appeal the most recent ruling. Many observers predict that this is the case that will ultimately be chosen by the U.S. Supreme Court when it seeks a clear and final definition of unitariness.

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