High Court, in Two Cases, Defines State Power To Limit Busing

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The U.S. Supreme Court, in cases involving Seattle and Los Angeles, defined the authority of states to limit the use of busing for purposes of school desegregation.

The ruling will not affect school districts that are under federal court desegregation orders. However, one of the rulings appears to protect communities that voluntarily adopt desegregation plans; the other holds that states may repeal requirements that exceed federal standards.

The text of the decision will appear inthe Sept. 1 issue of Education Week.

California voters were within their rights when they amended the state's constitution to conform to less restrictive federal standards, the Court said in an 8-to-1 decision. But a five-Justice majority ruled that voters in the State of Washington acted unconstitutionally in attempting to prevent school districts from carrying out voluntarily adopted desegregation plans.

Because state, not federal, requirements were in question, the California and Washington cases have no bearing on desegregation in other states. Neither decision affects federal courts' authority to order busing for purposes of desegregation where school officials have been found guilty of intentionally segregating white and minority students--the basis for the great majority of the busing plans now in effect.

Nor do the rulings expand upon, or restrict, the line of cases leading to federal desegregation orders.

But the decision in Washington v. Seattle School District No. 1, written by Associate Justice Harry A. Blackmun, may reveal something about the current Court's attitude toward efforts to restrict desegregation at the federal level, according to one prominent civil-rights lawyer and scholar.

The Court held in the Seattle case that a state may not restructure its decision-making process for racially suspect purposes. Although local school boards in Washington derive their powers from the state, the Court reasoned that local boards traditionally have had broad authority over instruction and transportation. The five-Justice majority found that Initiative 350, the antibusing referendum passed in 1978, set transportation policy at the state level only when desegregation is involved.

"The issue here, after all, is not whether Washington has the authority to intervene in the affairs of local school boards," Justice Blackmun wrote for the majority. "It is, rather, whether the State has exercised that authority in a manner consistent with the Equal Protection Clause" of the 14th Amendment to the U.S. Constitution.

By making it more difficult for members of minority groups to attain the goal of racial integration, the majority concluded, Washington's voters violated the Equal Protection Clause.

William L. Taylor, director of Catholic University of America's Center for National Policy Review, said the Seattle case may be analogous to the Helms-Johnston amendment, a bill in Congress that would restrict federal courts' authority to issue busing orders.

The Helms-Johnston bill, Mr. Taylor said, involves "selectively withdrawing the power of federal courts to provide remedies ... Its supporters are saying that Congress has plenary powers over the federal courts," a claim similar to that made by the State of Washington. "What Seattle suggests is that if that is done in a racial way, that violates the 14th Amendment," he said.

The immediate effect of the Seattle decision is to allow the school districts of Seattle, Pasco, and Tacoma to continue with desegregation plans adopted voluntarily by the local boards.

In a dissent, Associate Justice Lewis D. Powell characterized the majority decision as an "unprecedented intrusion into the structure of a state government."

Initiative 350, he added, "simply does not place unique political obstacles in the way of racial minorities."

Joining in the dissent were Chief Justice Warren Burger and Associate Justices William Rehnquist and Sandra Day O'Connor.

Federal Standard Adopted

The California case, Crawford v. Board of Education of the City of Los Angeles, also involved a statewide referendum calling for limits on the use of busing--but the authority of state courts, not that of local school boards, was called into question.

California's courts have interpreted the state constitution as prohibiting all racial segregation in public schools, whether intentional or not. Proposition I, ratified by the voters in 1979, amended the state constitution, forbidding state courts to order mandatory busing remedies unless intentional segregation is proven. The new standard conforms to federal case law, which has never required busing in the absence of proof of intentional segregation.

Lawyers for the minority plaintiffs in the 20-year-old Los Angeles school-desegregacase argued that Proposition I was motivated by racial bias, and thus unconstitutional. The California courts, however, upheld Proposition I, and the mandatory busing program in Los Angeles was stopped in March 1981.

The Supreme Court, in an opinion written by Justice Powell and signed by seven other Justices, found that Proposition I "does not inhibit enforcement of any federal law or constitutional requirement. Quite the contrary, by its plain language the Proposition seeks only to embrace the requirements of the Federal Constitution with respect to mandatory school assignments and transportation."

Justice Powell pointed out that California law is still stricter than federal law, in that the state's courts may order that voluntary desegregation techniques be used to alleviate racial imbalance even if intentional segregation has not been proven.

Justice Blackmun, in a concurring opinion, wrote that the Crawford case differs from Seattle in that Proposition I does not work "a change in the political process" but simply repeal[s] the right to invoke a judicial busing remedy."

The lone dissent was filed by Associate Justice Thurgood Marshall, who saw similarities between the two cases.

"I fail to see how a fundamental redefinition of the governmental decisionmaking structure with respect to the same issue can be unconstitutional when the state seeks to remove the authority from local school boards, yet constitutional when the state attempts to achieve the same result by limiting the power of its courts," Justice Marshall wrote.--pc

In a case that in many ways typifies "second-generation" issues in school desegregation, the U.S. Court of Appeals for the Sixth Circuit ruled that each of Nashville's schools must approximate the racial balance of the district as a whole.

The appellate panel last month overturned a plan, approved in 1981 by U.S. District Judge Thomas Wiseman, that would have permitted children in kindergarten through grade 4 to return to neighborhood schools and would have allowed secondary schools to be up to 85 percent one-race. The district has about 67,000 students, of whom about two-thirds are white; under the plan endorsed by Judge Wiseman, most elementary schools would have been virtually all white or all black.

Judge Wiseman's original ruling was based in part on "white flight" from the system, on the financial and educational costs of busing, and on the disproportionate burden the 1971 busing plan placed on minority students--arguments raised with increasing frequency by school officials seeking to undo comprehensive busing plans.

Judge Anthony Celebrezze of the Sixth Circuit agreed with Judge Wiseman. But in the appellate panel's majority opinion, Judge George Edwards wrote: "Such ... errors as we find in the District Court's opinions and orders originate with [Judge Wiseman's] apparent conclusion that the unanimous opinion of the Supreme Court in Swann has somehow been overruled or eroded. ... The Swann opinion is the law of the land." (Swann v. Charlotte-Mecklenburg Board of Education, 1971, was the first case in which the Supreme Court upheld the use of busing for school desegregation.)

The Nashville board, maintaining that "different times require different remedies," plans to ask the Supreme Court to review the case.

U.S. District Judge W. Arthur Garrity Jr., apparently determined to end his intensive involvement in Boston's desegregation case, this month issued the first draft of his final orders, establishing a timetable that will make his disengagement possible.

The 14-page document was released only a month after Judge Garrity announced that he intends to withdraw from the eight-year-old case by the end of 1982. It also follows comments he made several months ago that he was not satisfied with the 40-page "working orders" drafted by attorneys representing the school committee.

Attorneys for the school committee had submitted the "working papers" in April for Judge Garrity's review and were told that the final agreement between the school committee and other parties to the suit, which will be incorporated into a consent decree, should reflect some 400 orders issued by the court throughout the case. Any deviations from those orders, the judge said, would have to be "explicitly" outlined.

His comments were severely criticized by Boston's school superintendent, Robert R. Spillane, who argued that the city's schools are "more segregated than before" despite Judge Garrity's orders.

In the document, Judge Garrity details a plan for the suspension of his involvement in the administration of the city's schools, according to Robert H. Bohn, the lawyer who is coordinating the negotiations.

But Mr. Bohn cautioned that the judge's departure will not mean the end of desegregation in the city's public schools. "The judge says he will appoint a master to take his place to resolve, receive, and evaluate future modifications to his exit orders," Mr. Bohn said.

At a meeting scheduled for Sept. 8, attorneys representing the various parties in the case will have an opportunity "to argue for or against his draft orders and offer appropriate counterproposals," Mr. Bohn added.

At that gathering, Judge Garrity is also expected to "vacate his original order," according to Mr. Bohn, which permitted attorneys for the teachers' union, school administrators, black teachers, and parents' groups to intervene in the settlement of the desegregation case. That action would significantly reduce the number of parties involved in the final consent decree.

This summer, in preparation for Judge Garrity's withdrawal, the Boston School Committee assembled an advisory group of parents and school officials to help in carrying out the final orders.

Maryland education authorities have twice overruled the school board of a prominent Washington, D.C., suburb on school closings, boundary changes, and program moves that, minority groups claim, would resegregate the county's schools.

The Montgomery County board, governing one of the first and largest districts in the nation to initiate integration without a court order, voted last fall to close an elementary school and change attendance patterns at two secondary schools in an area with a large concentration of minority students.

Intervening for the first time in a local board's school-closing decision, the state board of education in June overruled the changes. The Montgomery board then set about formulating an "alternate plan," which would have kept the elementary school open but stripped it of its special programs. The local board's plan for revised attendance boundaries at the secondary schools remained untouched.

This month, Joseph L. Shilling, acting state superintendent of education, ordered an immediate stay of the new plan, citing evidence that the Montgomery board had acted "inconsistently" with the state board's reversal of the initial plan.

Montgomery officials have gone to court to challenge the state agency's authority to intervene in their school-closing decisions.

Rejecting the Philadelphia school board's voluntary desegregation plan as vague and incomplete, the Pennsylvania Human Relations Commission went to court this month in an attempt to force the adoption of more specific goals.

Under the board's plan, which was drafted in response to an earlier state court order, an undetermined number of schools would be "paired," on a voluntary basis, to promote improved racial balance. About 28 percent of the district's 215,000 students are white; only about 30 percent of all Philadelphia students attend schools that are considered desegregated.

The human-relations commission, which has authority to enforce state civil-rights laws, found that the board failed to specify how much desegregation the "pairing" plan would have achieved and that voluntary transfers have done little to alleviate racial isolation in the city's schools.

Three former U.S. attorneys general have warned Congress that passage of a proposed legislative curb on federal court busing orders would ''open up the floodgates" to new and dangerous legislation that would undermine the nation's federal courts.

The former Justice Department officials, Benjamin Civiletti, Nicholas Katzenbach, and Elliot Richardson, sounded that alarm during the second in a series of hearings being held this summer before a House judiciary panel on an amendment to a Justice Department authorization bill that would prevent federal courts from ordering the busing of students beyond 15 minutes or 5 miles from their homes.

The proposed Neighborhood School Act, also known as the Helms-Johnston amendment, also contains a provision that would prohibit the Justice Department from spending funds to bring or maintain an action requiring busing. The House and the Senate both have given their approval to the section of the bill restricting the activities of the Justice Department, but only the Senate has voted in favor of its controversial court-limitation section.

Earlier this year, the current Attorney General, William French Smith, sent a letter to Peter W. Rodino, the New Jersey Democrat who chairs the House Judiciary Committee, concluding that the section of the amendment pertaining to federal-court jurisdiction is consistent with the Constitution because, in his opinion, it would place no limits on the jurisdiction of the Supreme Court in desegregation cases.

But in the opening hearing last June before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice, the amendment's co-sponsor, Senator J. Bennett Johnston, Democrat of Louisiana, cast a shadow over that interpretation of the amendment's constitutionality when he testified that he certainly did intend the amendment to limit the activities of the Supreme Court.

Vol. 01, Issue 40

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