Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, April 16, 1990 TAG: 9004140399
SECTION: EDITORIAL PAGE: A9 EDITION: METRO
SOURCE: PERRY MORGAN
DATELINE: LENGTH: Medium
Could compulsory busing of students be used to integrate the schools? Could students be assigned on the basis of race in order to achieve in the classroom racial ratios comparable to those prevailing in the community? Could age of students be taken into account in busing orders? What about one-race schools? Could there be one, a few, none at all?
Practically speaking, all the questions collapsed into one: Could federal district judges assume all the powers of elected school boards in order to remove "root and branch" all vestiges of state-imposed segregation?
The Supreme Court answered yes with a unanimous vote that masked deep divisions. Having for some time been converting the Constitution from the Ten Commandments' Thou-Shall-Not to the Sermon on the Mount, the court put action in the front seat and reflection in the back.
"There's a lot of conflicting language here," said a judge of the 5th Circuit Court of Appeals. "It's almost as if there were two sets of views, laid side by side."
Sloppy was the word for it. And contradictory.
The emphasis on action was understandable since the court's policy of desegregating the schools with "all deliberate speed," announced 17 years earlier, had yielded scant results. But in authorizing busing-by-the-numbers, the court, facing hard constitutional questions, ducked and dissembled. Instead of saying that the Constitution required racial quotas, it said quotas were permitted as a starting point.
As to one-race schools, the court opined, one or two might be permissible but the presumption was against them. This presumption ran head-on into the court's nod toward consideration of age in busing children. Another question begged for answer: How long should district judges be permitted to serve as unelected, one-man school boards exercising even the power of the purse?
Warren Burger, chief justice at the time, answered that redemption was within the grasp of elected school boards. If they were obedient and faithful to court orders, there would come a time when they could be adjudged free of the sin of official segregation and fit again to operate their school systems.
Some would wonder, even in the furor unleashed by the decision, what was the point of achieving racial balance if the achievement was to provide the means of reverting to imbalance. The question perhaps was unfair: If the court was to redeem its 1954 decision to desegregate the schools, it would have to proceed, as it did, through main force and awkwardness. Some questions would have to be left to the future.
The future is here now; the questions noted above remain, and the Supreme Court must answer because appellate courts are in conflict. The 4th Circuit Court of Appeals permitted Norfolk to end busing in lower grades and to make assignments based on place of residence. Neighborhood schools returned. So did a number of one-race schools.
A federal district judge permitted similar changes in Oklahoma City schools, but an appellate court ordered busing of children in lower grades resumed although racial balance remains in most of those grades because of residential patterns. The conflict between the appellate-court opinions means the Constitution is speaking with two voices.
As it considers the conflict, the Supreme Court ought to reflect upon the product of its own performance. If by-the-numbers busing made the schools equal, did it make them better? If the latter didn't matter - equality rather than quality, arguably, being the court's main business - did the court promote or retard integration by resort to compulsory busing?
In rural districts where white flight was not possible, the yellow bus brought maximum integration to schools and kept it there. But in many urban districts, especially those surrounded by largely white suburbs with no history of official segregation, the court achieved nothing more than integration of the impoverished - a mockery of the intent expressed in its landmark 1954 decision in Brown vs. Board of Education. And, as well, a symbol of far-reaching reaction to all sorts of governmental activism.
Going on 40 years now, the federal courts have played a dominant role in the nation's schools. The educational results warrant no expansion of that role, nor of compulsion, nor of the authoritarianism awakened in the breasts of many district judges.
The Supreme Court should honor the compact extended in its busing decision - offering some freedom of action to school boards that carried out the decision in good faith. The court has achieved all the change, good and bad, that it's capable of. It should consider with deep skepticism any additional constitutional contrivances urged upon it.
by CNB