Impact of Decision In Norfolk Case Remains Unclear

Busing’s Fate Said in Hands Of Supreme Court Justices

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School-desegregation experts agreed last week that a federal appeals court's ruling permitting the Norfolk public schools to abandon busing in the elementary grades opens the door for school districts across the country to follow in the Tidewater Virginia district's footsteps.

But, they were quick to add, it remains unclear how many districts are legally positioned to take that step, how many will actually do so, and how many will be successful.

As a result of the Feb. 6 decision by the U.S. Court of Appeals for the Fourth Circuit, Norfolk officials are now free to implement a neighborhood-school plan that would leave 11 of the district's 36 elementary schools more than 95 percent black; none are more than 70 percent black now. The Norfolk board is expected to vote this week on whether to implement the plan with the start of the upcoming school year.

"Our holding is a limited one, applicable only to those school systems which have succeeded in eradicating all vestiges of [legally sanctioned] segregation," said the court in its opinion, which is binding only in Maryland, Virginia, West Virginia, and the Carolinas, but could be cited as precedent by federal courts elsewhere.

"In those systems," the court continued, "the school boards and not the federal courts will run the schools, absent a showing of an intent to discriminate."

Unitary Districts

According to the desegregation experts, there are no accurate national statistics indicating the number of districts that have been declared fully desegregated or "unitary" as was Norfolk in 1975, and are thus in a position to take advantage of the Fourth Circuit Court's ruling.

In interviews last week, officials in three districts that have attained unitary status but have continued to bus students voluntarily--Columbus, Ohio, Louisville, Ky., and Pasadena, Calif.--said they had no plans to alter their desegregation programs.

But in a largely unnoticed legal development, school officials in Oklahoma City received a federal district judge's approval last April to end cross-town busing in grades 1 through 4 and to implement a neighborhood-school policy that is almost identical to Norfolk’s. The plan, which left 11 of the Oklahoma district’s 64 elementary schools more than 90 percent black, went into effect with little fanfare with the opening of schools last September.

Ronald L. Day, a lawyer for the Oklahoma City school board, said his clients' decision in December 1984 to adopt the new student-assignment plan was not influenced by the Norfolk litigation, but stemmed rather from demographic shifts in the city over the past decade.

Nonetheless, he said he was "certainly encouraged" by the decision, adding that he was hopeful it would be applicable to his case.

The lawsuit, Dowell v. Board of Education of the Oklahoma City Public Schools, has been appealed to the U.S. Court of Appeals for the 10th Circuit, with arguments scheduled for March 20.

'Open Invitation'

According to the NAACP Legal Defense Fund, which represents the black plaintiffs in both the Norfolk and Oklahoma City cases, the Fourth Circuit Court's decision threatens to reverse more than years of progress in school desegregation. The plaintiffs have not yet decided whether to seek a rehearing before the full panel of judges on the Fourth Circuit Court or to take the case directly to the U.S. Supreme Court.

"In terms of its national significance, we feel if it is not changed, it will be an open invitation to districts across the country to obtain a declaration of unitariness, let it stand for a few years, and then go back to neighborhood schools," said Napoleon B. Williams Jr., a lawyer for the civil-rights organization. "That would be the worst possible deprivation of rights and a clear violation of the Constitution."

Other desegregation advocates offered more reserved analyses of the decision’s potential ramifications.

”The opinion generally reflects what I have always felt the law has been, namely, that a district that has been declared unitary is free to make changes in its pupil-transportation system so long as it doesn’t do so with discriminatory intent,” said David Tatel, a noted desegregation lawyer and former head of the office for civil rights in the old U.S. Department of Health, Education, and Welfare.

”My sense is that it probably won’t entice many districts to do anything, because the ones that were dissatisfied with their busing orders were free to try this earlier,” he continued.

”I don’t see anyone jumping on that bandwagon unless they’re stupid,” added an official responsible for desegregation monitoring in a large Northern city. “It was nice of Norfolk to take the issue on, but the real test will be how the Supreme Court rules on this.”

If the Court upholds the decision, added the official, who requested anonymity, “you’ll see a lot of districts starting to compare themselves with the Norfolk profile.”

”I know there would be a lot of community pressure here,” he added. “The question will be, ‘If Norfolk could do it, why can’t you?”

Key Issues

In its opinion, the Fourth Circuit Court noted that the key issues before it was whether the burden of proof in the dispute had shifted from the Norfolk school board to the plaintiffs, following a federal district judge’s 1975 order declaring the district unitary.

In their analysis, the judges noted that although they could not identify any other cases that presented the same questions in factually similar situations, they agreed with the district judge hat the burden of proof rests with the black parents.

Having reached that decision, the judges concluded that the parents had failed to prove that the Norfolk board’s decision was motivated by segregative intent.

'Original Sin'

"While the history of discrimination [in Norfolk] cannot and should not be ignored, it cannot, in the manner of original in, condemn governmental action that is not itself unlawful," the court ruled. "If the rule were otherwise, virtually every action of the school board with respect to any of its various affairs would be suspect.”

The judges noted that the plan’s creation of several virtually all-black schools was “disquieting.” Nevertheless, they continued, “that fact alone is not sufficient to prove discriminatory intent.”

”[The plan] is a reasonable attempt by the school board to keep as many white students in public education as possible and so achieve a stably integrated school system,” they wrote. “It also represents an attempt to improve the quality of the school system by seeking a program to gain greater parental involvement.”

”We do not think this is a case in which a school board, upon obtaining a judicial decision that it is unitary, turns its back on the rights of its minority students and reverts to its old discriminating ways,” the judges concluded.

Vol. 05, Issue 23, Pages 1, 18

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