Braking the Law: Antibusing Legislation and the Constitution

Introduction

The road to school desegregation began in 1954 with Brown I, which struck down the separate-but-equal doctrine that Plessy v. Ferguson had enunciated over halfa century earlier. A year later, in Brown II, the federal district courts were directed to use their equitable powers to fashion remedies for ending segregation. Such remedies were to be implemented “with all deliberate speed,” a term connoting a standard substantially less than immediacy. A great deal less than immediate segregation followed, resulting in a new Court order that remedial action be implemented “at once.”

Having assumed the role of monitoring rather than promulgating particularremedial schemes, the Supreme Court has not sought uniform solutions to the problemof segregation. Rather, the Court has disapproved some remedies as ineffective in aparticular factual setting,7 while it has declared other remedies to be reasonable andeffective. In Swann v. Charlotte-Aecklenburg Board of Education the Court declared that bus transportation of pupils was a permissible tool of school desegregation. In acompanion case, North Carolina State Board of Education v. Swann the Court invalidated North Carolina’s “Anti-Busing Law,” I which operated as a prohibition upon school busing to achieve desegregation. The Court stated that “bus transportation has long been an integral part of all public educational systems, and it is unlikely that a truly effective remedy could be devised without continued reliance upon it.”

On March 17, 1972, the President presented Congress with a package of two bills. The Student Transportation Moratorium Bill  was offered for immediate passage. The essence of this Bill is a provision which would stay the implementation of any federal court order requiring the transportation of a pupil to any school to which he or she was not being transported before the entry of the order. The stay would apply to orders entered after the date of the Bill’s enactment and would last until July 1, 1973, or until permanent antibusing legislation were passed, should that occur first.

The second part of the President’s package is the Equal Educational Opportunity Bill. Section 403a of this Bill contains a remedial prohibition concerning the busing of children in the first six grades of school.  It provides that no busing order by a federal court, agency or department may require an increase in the average daily distance or time that children must travel, or in the average daily number of children transported as measured by the comparable averages for the preceding school year. In the case of pupils in the seventh grade or above, the limits set by section 403a could be exceeded, but only upon a “clear and convincing” showing that alternative relief would be ineffective. The appropriate court of appeals, pending review¢, would be required to stay such an order granting relief in excess of the section 403b limits. Section 405 states that the Bill does not prohibit the states from voluntarily adopting additional remedies.

The House passed the Bill, having amended section 403 to forbid a federal order from requiring “the transportation of any student,” regardless of grade level, “to a school other than the school closest or next closest his place of residence which provides the appropriate grade level and type of education for such student.”

The House version would forbid the crosstown busing which was found necessary and appropriate in Swann. The President’s proposal could actually foreclose all remedial busing for grade-school children in a community which had not bused such children in the previous year, and would place a substantial evidentiary burden upon anyone seeking remedial busing for older children. The Student TransportationMoratorium Bill could delay effective relief for over a year. The antibusing proposalsappear to conflict with recent Supreme Court decisions concerning how desegregationis to be achieved. This Note will examine this apparent conflict in order to determinewhether the proposed legislation is constitutionally permissible. The term ‘forbidden busing’ will be used throughout as shorthand for relief which the Supreme Court hasdeclared may be both appropriate and required, but which either the StudentTransportation Moratorium Bill or the Equal Educational Opportunity Bill would forbid the federal courts to order.

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