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Supreme Court, 9-0, Backs Busing to Combat South's Dual Schools, Rejecting Admin

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« on: April 20, 2010, 07:13:25 am »

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« Reply #1 on: April 20, 2010, 07:14:01 am »

Supreme Court, 9-0, Backs Busing to Combat South's Dual Schools, Rejecting Administration Stand
OPINION BY BURGER Segregation in North Based on Housing Is Not Affected
By Fred P. Graham
Special to The New York Times


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Washington, April 20 -- The Supreme Court unanimously upheld today the constitutionality of busing as a means to "dismantle the dual school systems" of the South.

But the Court made it clear that today's decision did not apply to Northern-style segregation, based on neighborhood patterns.

In a series of decisions written by Chief Justice Warren E. Burger and supported by the eight other Justices, the Court overrode the arguments of the Nixon Administration and the Justice Department, which had intervened on the side of Southern school systems in the four cases decided today.

Dismay Over U.S. View

To the dismay of the civil rights organizations and the delight of many white Southerners, the Justice Department lawyers had argued that Southern school systems should be allowed to assign students to schools in their own neighborhoods even if this resulted in slowing the pace of desegregation in the South.

Southern lawyers had contended that the Northern areas were permitted to have neighborhood schools and that it would be discriminatory of the South were not allowed the same "privilege."

"Desegregation plans cannot be limited to the walk-in school," the Court declared. It held that busing was proper unless "the time or distance is so great as to risk either the health of the children or significantly impinge on the educational process." Young children may be improper subjects for busing when the distances are long, the Court concluded.

Limits on Decision

The Court stopped short of ordering the elimination of all-black schools or of requiring racial balance in the schools. But is said that the existence of all-black schools created a presumption of discrimination and held that Federal district judges may use racial quotas as a guide in fashioning desegregation decrees.

This is expected to touch off a new wave of desegregation orders this summer in the cities of the South, where school segregation has persisted despite the 1954 Supreme Court decision that declared legally required segregation to be un-constitutional.

Chief Justice Burger excluded "de facto" segregation of the North from today's ruling by declaring, "We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, with out any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree."

The major portion of what Mr. Burger described as "guidelines, however imperfect, for the assistance of school authorities and courts" came in a 28-page opinion upholding a busing decree governing the joint school system in Charlotte-Mecklenburg County, N.C.

The court upheld the judgment of Federal District Judge James B. McMillan, who required massive cross-town busing of children in an effort to approximate in each elementary school the ratio of 71 per cent whites and 29 per cent blacks that exists in the entire school system.

Judge McMillan's ruling was overturned by the United States Court of Appeals for the Fourth Circuit on the grounds that it was unreasonable and burdensome. In upholding Judge McMillan, the Supreme Court stressed that the school board had failed to propose an acceptable plan and that this had forced him to produce his own plan.

In such cases a district court has "broad powers to fashion a remedy," the Supreme Court said. It said that Judge McMillan's solution was acceptable under those particular circumstances, although it did not mean that other judges were required to order similar measures.

The Court's guidelines contained the following points:

-Desegregation does not require that every school in every community must always reflect the racial composition of the school system as a whole. However, if a judge wished to use mathematical ratios, as Judge McMillan did, as a "starting point in the process of shaping a remedy," this may be within his equitable discretion.

-The existence of "some small numbers" of schools of one race, or virtually one race, is not alone proof of racial discrimination. "But in a system with a history of segregation" the courts may indulge in "a presumption against schools that are substantially disproportionate in their racial composition." If such school districts have any all-black schools, the burden will be on them "to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part."

-It is not enough for school officials to draw school attendance lines that appear to be racially neutral. Officials must foster integration by such affirmative measures as gerrymandering school boundaries to include both races, pairing "white" and "Negro" schools, and drawing school zones that combine noncontiguous areas in racially diverse neighborhoods.

The authority of Federal courts to require the assignment of students on the basis of race to achieve integration is not affected by antibusing language in the Civil Rights Act of 1964. The courts' obligation is to enforce the 14th Amendment's declaration that no state shall "deny any person within its jurisdiction the equal protection of the laws."

Congress declared in the Civil Rights Act that it did not intend to enlarge the remedies of courts in enforcing the equal protection guarantee but that it also did not purport to diminish these remedies.

A companion case today concerned a ruling by the Supreme Court of Georgia, which upheld the contention by white parents in Athens, Ga., that school officials had violated the 14th Amendment by making racial assignments to achieve desegregation.

Chief Justice Burger said that, on the contrary, racial assignments were necessary to enforce the 14th Amendment rights by upsetting the segregated status quo.

Using similar reasoning in a third case, the Court declared unconstitutional an antibusing statute enacted by the North Carolina Legislature. A similar law passed by the New York Legislature has been declared unconstitutional by a three-judge Federal District Court and is pending before the Supreme Court.

In the fourth case the Court overturned the desegregation plan of Mobile, Ala., and ordered further desegregation. Mobile officials had avoided busing by adopting a neighborhood approach that left many Negroes in the eastern section of the city in predominantly black schools. The Court found this inadequate.

While the ruling today is its most sweeping school desegregation action since the 1954 case, it leaves some unanswered questions that may confound Federal District judges in the coming months.

The ruling said that "at some point" Southern school districts should have satisfied the 1954 ruling and become "unitary." However, it did not say how Southern communities would know when they had reached that point. Once there, the Court said the communities would not be "required to make year-by-year adjustments of the racial composition of student bodies."

The Court also did not say if communities can close their inner city schools and bus Negroes out, or, if they must bus children of both races equally.

But the most vexing aspect of the ruling is likely to be the broad discretion given to Federal District judges. Having been told that they must do more to break down racial imbalance but that they are not required to eliminate all "black" schools or achieve racial balance, any ruling is likely to be attacked as either too strong or too weak.

Jack Greenberg and James M. Nabrit 3d of the N.A.A.C.P. Legal Defense and Educational Fund, Inc., in New York, made the major arguments for more desegregation. Solicitor General Erwin N. Griswold presented the Government's argument.

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