CONTENTS CHRONOLOGICAL LIST OF WITNESSES THURSDAY, SEPTEMBER 24, 1970 Spong, Hon. William B., a U.S. Senator from the State of Virginia. Page 2207 2207 Preyer, Hon. Richardson, a Representative in Congress from the State of North Carolina_ - 2247 THURSDAY, OCTOBER 8, 1970 Brest, Paul, assistant professor, Stanford University School of Law, and Gary Orfield, professor, Woodrow Wilson School of Public and International Affairs, Princeton University. 2269 Spong, Hon. William B. 2207 Miscellaneous articles, publications, etc., entitled: A bill to enforce the guarantees of the 14th amendment with respect Comments of the Preyer (Bickel) bill of school integration (H.R. Correspondence-Bickel is wrong.. "Desegregation-Where Do We Go From Here," from the New Republic, February 7, 1970... Further comments and Mr. Bickel's reply-The debate over school desegregation, by Marian Edelman.. 2245 2341 2217 2220 2345 2329 2348 "Hill School Policy," from the Washington Post, September 25, 1970 "HUD Official Resigns," from the Minneapolis Tribune, September 19, 1970____ 2327 2298 Questions and answers. 2306 Replies to Alexander M. Bickel-the debate over school desegregation.. 2332, 2342, 2346 School desegregation data for Senator Mondale. 2295 "S. 4167-Introduction of a Bill Relating to School DesegregationThe Unanswered Questions-II," from the Congressional Record, August 3, 1970. 2353 The Advocates-Part 1, April 12, 1970.. 2361 The Advocates-Part 2, April 19, 1970.. 2374 "Yale Law Expert Says School Integration Is Neither Required nor Possible," from the New York Times, September 25, 1970_ _ 2328 EQUAL EDUCATIONAL OPPORTUNITY THURSDAY, SEPTEMBER 24, 1970 U.S. SENATE, SELECT COMMITTEE ON EQUAL EDUCATIONAL OPPORTUNITY, Washington, D.C. The select committee met, pursuant to recess, at 10 a.m., in room 3118, New Senate Office Building, Hon. Walter F. Mondale (chairman of the committee) presiding. Present: Senators Mondale, McClellan, Spong, and Javits. Staff members present: William C. Smith, staff director and general counsel, and A. Sidney Johnson, deputy staff director. Senator MONDALE. The hearing will come to order. I will ask Senator Spong to introduce our witness. STATEMENT OF SENATOR WILLIAM B. SPONG, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator SPONG. Thank you, Mr. Chairman. I think the committee is very fortunate to have before us this morning Dr. Alexander M. Bickel of Yale University. Some months ago, Dr. Bickel aided in the drafting of a bill which Congressman Richardson Preyer, of North Carolina, introduced in the House. Some months later, feeling very strongly that the Congress should try to legislate on a national policy of school desegregation, I introduced the same bill in the Senate. We also have with us this morning, Mr. Chairman, Congressman Preyer, who is here to hear Dr. Bickel's testimony. I am very pleased that he could be with us. Senator MONDALE. Would the Congressman like to come to the witness table? We would be delighted to have him. Professor Bickel, we are very pleased to have you with us this morning. You may proceed as you wish. STATEMENT OF ALEXANDER M. BICKEL, PROFESSOR OF LAW, YALE UNIVERSITY; AND FELLOW, CENTER FOR ADVANCED STUDY IN THE BEHAVIORAL SCIENCES Professor BICKEL. Thank you, Mr. Chairman. I have a statement which I wasn't able to get down here in time. Perhaps the best thing for me would be to read it. It might take 20 minutes or so. Senator MONDALE. I think I would prefer that. Professor BICKEL. I appear, as you know, at the invitation of the committee, and I represent no group or organization. I greatly appre ciate, of course, being asked to give my views on the very important matters the committee has under consideration. I believe national policy on public education in the United States has now reached the most significant turning point since 1954, when Brown v. Board of Education was decided. A brief recital of some familiar but often misunderstood history may show us where we are and how we got here. BROWN VERSUS BOARD OF EDUCATION Brown v. Board of Education dealt with legally enforced segregation, and declared it unconstitutional. I am not now talking about various strands in the philosophy that underlay the decision in Brown, or about inferences that may be drawn from the opinion. I am talking about the factual situation that was before the Justices, and I am stating, as a lawyer, what I understand them to have decided. Most lower appellate courts have understood the Brown case as I do, and none has explicitly read it otherwise. DUAL SCHOOLS: ADMINISTRATIVE RULES Brown required the disestablishment of legally enforced segregation and of the dual school systems that such segregation produced. In administering disestablishment against strong resistance over the years, the lower Federal courts, the Department of Health, Education, and Welfare, acting under title VI of the Civil Rights Act of 1964, and the Supreme Court have laid down a number of rules, which may be thought of as rules of administration, or of implementation. FREEDOM OF CHOICE AND OPEN ENROLLMENT Thus, the Supreme Court, itself, made it clear that freedom-of-choice plans superimposed on an essentially dual system, and producing no more than a minor black presence in previously all-white schools, will not do. Nor will residential zoning, to the extent that it uses schools originally located so as to implement a policy of segregation, particularly if they are substandard schools; or if pupils are allowed to transfer out of schools into which they have been zoned, but in which they are in a racial minority; or if a school board otherwise fails to satisfy a judge or the Department of Health, Education, and Welfare of its good faith. Finally, faculties and all other activities must be desegregated. COMPLIANCE These rules of administration were, in my judgment, essential to the maintenance of the integrity and credibility of law. They required the manifestation in practice of the principle of Brown v. Board of Education, which in turn was crucial to a believable-meaning an honest and effective-legal order. We would have mocked the principle of Brown if we had allowed the South to wipe some laws formally off its books, and then continue with segregation as usual, through inertia, custom, and the application of private force. And so we have quite properly, indeed necessarily, implemented Brown by demanding the palpable, visible disestablishment of the prior system of legally enforced segregation and the substitution for it, in a phrase-but it is only a phrase of a unitary system. COURTS AND RACIAL BALANCE Some lower Federal courts, and, in some instances, the Department of Health, Education, and Welfare, have gone further. They have taken literally Justice Brennan's dictum in the Green case of 1968, that there should be no white schools or Negro schools, "but just schools," and have directed the achievement of a racial balance in each school of a system, corresponding more or less to the proportion of the black to the white race in the system's total school population. But such racial-balance decisions are conditioned by the particular circumstances and the history of litigation of particular school districts. To the extent that they purport to announce general propositions, they can be matched by other decisions making different generalizations. Even within a single court, the Court of Appeals for the Fifth Circuit, covering the Deep South, one can find, for example, decisions that do not accept residential zoning, and decisions that do. COURTS: EXTENT OF DUTY The Supreme Court, as Chief Justice Burger pointed out in his brief concurrence in the Memphis case, in which the Court denied certiorari last March, has not decided whether "any particular racial balance must be achieved in the schools." Nor, as the Chief Justice went on to say, has the Court told us "to what extent school districts and zones may or must be altered as a constitutional matter; to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court." And the Chief Justice added: "Other related issues may emerge." Underlying all these questions is the fundamental one whether "the ends sought by prior holdings of the Court," the ends sought by the Constitution, remain the disestablishment, root and branch, palpably and visibly, of prior systems of legally enforced segregation, or whether the end we must now seek is the dispersal of pupils of different races throughout each school system, and the achievement of a racial balance in each school. That is the open question. That is the turning point. That is the decision that faces the Court and that faces the Congress. ADMINISTRATION: RACIAL BALANCE VERSUS DISESTABLISHMENT The President, in his statement of March 24, 1970, has hit the bullet on this one, as the phrase goes, for him, the end to be sought is not racial dispersal or balance. It remains what it was in the past, both for the Court and, in title VI of the Civil Rights Act of 1964, for Congress-disestablishment. Unlike the President, the Court and the Congress have not in recent years addressed this issue head on, as it arises now, in present conditions. |