Denver school officials have attacked Colorado’s ban on race-based busing as an unconstitutional barrier to resolving the district’s desegregation case.
Lawyers for both the school board and the case’s black plaintiffs last month urged a federal judge to overturn a 1974 amendment to the state constitution barring the assignment or transportation of students “for the purpose of achieving racial balance.”
The amendment does not apply to districts that are under federal court order but likely would prevent Denver from keeping its pledge to continue busing for racial balance after it is released from federal court oversight.
At issue is whether the U.S. Constitution permits legally desegregated school districts to continue the busing policies that helped bring racial balance.
Remedies for the Cured
Because many of Denver’s neighborhoods are racially isolated, district compliance with state law would lead it to revert to having segregated schools, the plaintiffs and district argued in U.S. District Court.
Lawyers for the plaintiffs contended that the state has turned federal constitutional law “on its head,” using what is ostensibly a ban on race-based government action to prevent a district from continuing to remedy the effects of past discrimination.
Gale A. Norton, the Colorado attorney general, has intervened in the case and argued that the state’s busing clause merely echoes the U.S. Constitution’s equal-protection clause.
Noting that the 14th Amendment has been interpreted as barring race-based policies that do not remedy past discrimination, the state’s lawyers have argued that Denver cannot continue to bus students for racial balance once it is declared unitary, or free of discrimination’s vestiges.
Such actions, they said, appear designed to address the effects of housing segregation outside the district’s control.
Both sides of the constitutionality issue have based their arguments largely on conflicting interpretations of two 1982 U.S. Supreme Court decisions. In those cases, the High Court struck down a Washington State initiative banning race-based busing but upheld an amendment to the California constitution prohibiting race-based busing to remedy segregation that no government action caused.
The High Court held a New York law with provisions similar to Washington’s referendum unconstitutional two years later.
Colorado’s lawyers also have objected to Denver’s continued use of race-based student assignments because it limits students’ freedom to switch schools under the state’s choice law.
Contingent on the district’s continued use of such practices, the plaintiffs had agreed earlier this summer not to oppose its motion to have the desegregation case dismissed. They began opposing the motion after the hearings began and the two sides disagreed over discipline, minority hiring, and other issues.
