The 14th Amendment and school busing hearings before the Subcommitteeon the Constitution of the Committee on the Judiciary, United StatesSenate, Ninety-seventh Congress, first session, on the 14th Amendmentand school busing, May 14 and June 3, 1981.United States.Washington : U.S. G.P.O., 1982.

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Senator THURMOND. I have a luncheon at 12 o'clock with University of South Carolina officials. Maybe Senator Hatch will be backin a few minutes to carry on. If not, we will let the staff continuethe hearing and give all of you a chance to be heard.Mr. Taylor is next. I believe you are director of the Center for

National Policy Review here in Washington. You have been staffdirector of the U.S. Commission on Civil Rights as well as a representative for the NAACP Legal Defense Fund. Is that correct?Mr. TAYLOR. I was an attorney for the NAACP Legal Defense

Fund.Senator THURMOND. I believe you teach at Catholic University

Law School and you are widely considered to be one of the foremost experts in the country on civil rights law.We will be glad to hear from you now.

STATEMENT OF WILLIAM TAYLOR, DIRECTOR, CENTER FORNATIONAL POLICY REVIEW, CATHOLIC UNIVERSITY OFAMERICAMr. TAYLOR. Thank you, Mr. Chairman.My involvement in school desegregation cases spans a period of

some 25 years. You have mentioned some of the areas in which Ihave been involved.Currently, I serve as counsel for the school board of Wilmington,

Del., in a case that Senator Biden referred to this morning. I alsoserve as counsel for Indianapolis public schools in another metropolitan case. I also serve as counsel for black plaintiffs in the St.Louis case, which is also a metropolitan case.Our center has also done research on a number of the questions

and issues discussed here this morning and posed by the chairman.We would be glad to submit material for the record because I thinkit does bear directly on some of the questions you are considering.I welcome the hearings this committee is having. The last hear

ings, as you may remember, Mr. Chairman, were those conductedby then Senator Mondale as chairman of the Senate Select Committee on Education in 1970 to 1972.Those hearings, I think, were a model for what Congress needs to

do in order to legislate. They heard not only from lawyers andfrom experts but from parents, members of school boards, administrators, and students in the communities around the country wheredesegregation has actually taken place. They also heard from experts who had done more serious and sustained work in some ofthe areas that are being discussed today and who hold views thatare in contradiction to some of the views expressed today.I would like briefly to address two of the questions the committee

has posed about the current status of school desegregation and alsowhat has been learned about the educational and community effects of plans that are in operation.

THE LEGAL BASIS OF COURT ORDERED DESEGREGATION

First of all, with respect to what the courts have done, contraryto statements that have been made here this morning that thecourts have engaged in forced busing for racial balance or sociological experimentation, school desegregation has been judicially re

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quired only when acts of intentional racial discrimination havebeen proven in the courts.There has been a consistent thread of decisions from Brown right

up through the Columbus and Dayton cases that the SupremeCourt decided in 1979. What was at the heart of the Brown decision, in my view, was the right of black people in this country to beexempt, quoting the Supreme Court, "from unfriendly legislationimplying inferiority in civil society."I think that point about Brown is now fairly well understood as

it applies to the southern and border States where there wereracially dual systems, but it seems to be less widely understoodabout the school desegregation cases that have arisen in the Northand the West.Yet from the Supreme Court's first decision in the Keyes case in

1973 through the Columbus and Dayton decisions, it has been perfectly clear, as Mr. Chambers has said, that desegregation is ordered only where the plaintiffs prove a condition of segregationresulting from intentional state action.If the committee were to take the trouble to go through therecord of court findings in northern cases, you would find a host ofintentionally discriminatory practices: racial gerrymandering, discriminatory site selection in the location of schools, segregativetransfer policies, the racial use of optional zones creating a zone toenable white students to move out of schools that are becomingintegrated, and discriminatory teacher assignments. Those are justa few of the practices that the courts have found have createdsegregated systems over time.I think if those who express some puzzlement about how Federal

judges, and in many cases conservative Federal judges, could orderwhat appear to be broad remedies, they only need examine thecases and learn that what the judges have been doing is whatjudges are supposed to do: applying well-established principles ofequal protection of the law to the record evidence.The courts have also exercised similar care in devising remedies

for the constitutional violations they have found. They have operated under principles that have been repeatedly stated in the Swannand Milliken cases that the scope of the remedy should be tailoredto the scope of the violation.Before they order systemwide relief that ordinarily requires

busing, they have required a demonstration that the violationswere significant and were pervasive. Where that has not been thecase, as in Dayton I, the Supreme Court refused to sustain an orderfor systemwide relief.At the same time, the courts have recognized that purportedly

neutral practices or remedies such as neighborhood assignmentmay be woefully insufficient to cure the violation. In Swann andKeyes, the Supreme Court acknowledged and spelled out that segregative school practices by public officials can have a profoundinfluence on housing patterns. They can create racial segregationin neighborhoods.Senator Thurmond. I have to go now. We will leave it to the

staff to carry on until Senator Hatch comes back.I want to thank all of you gentlemen for your presence here

today. Please continue.

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Mr. Taylor. Even in the cases where courts have ordered sys-temwide remedies, they have drawn limits. The limits have beenbased on time, on distance, and other factors on the extent towhich you can use busing.References were made to wide-scale busing. It is interesting to

me that in the past in places like Virginia, Missouri, and otherplaces, black students were bused hundreds of miles to attendboarding schools because there were no schools established forthem in the communities where they lived. I did not hear some ofthat concern about busing being expressed in those days.However, the Supreme Court has not ordered that done in the

cases here. They have ordered limited busing which accords withthe time and distances students are bused for other purposes.In addition to the logistical considerations, the courts have

placed time limits on desegregation orders. Those time limits, inessence, have been 3 to 5 years for active court supervision toaccomplish the affirmative duty to desegregate.Professor Glazer said that the court decisions were based on an

assumption that groups would be evenly distributed according totheir racial groups if there were no deliberate practices. That is notthe assumption at all.What the courts are saying, in essence, is that here is a system

that has existed in some cases for many decades. You need to dosomething to dismantle that system and to do it effectively. Ifprivate preferences, such as Professor Glazer suggests, would leadto resegregation, that can happen over a period of time because theperiod of active court supervision is limited.However, the further suggestion that racial and ethnic groups

prefer to stick together, I think, is unfounded. If black people inthis country were distributed in the schools the way other ethnicgroups were distributed, there would be far more desegregationthan there is today.In short, I think any careful review of the record of the Federal

courts and schools desegregation since Brown will disclose that thejudiciary has acted cautiously and prudently and that it has disturbed the established order of segregated schools only when aconvincing case of intentional discrimination has been made.I have to say that I am astonished by some of the statements

that I have heard made here this morning about judicial activistsand courts out of control. I would have to ask what judges are thewitnesses referring to? Are they referring to Chief Justice Burgerand his opinions in the Swann and Keyes case? Are they referringto judges like the late Judge Roth in Detroit, Judge Dillon inIndianapolis, Judge Meredith in St. Louis, or Judge Gordon inLouisville? These are judges who are cautious and conservative bytemperament and have come to their decisions only after studyingthe full record.As to the statements that the courts are out of control, I think

they are equally unfounded. They are very disturbing. We rely onthe courts in this country to protect our most basic liberties. Theyare charged with the responsibility of protecting groups whocannot obtain equal protection of the laws elsewhere in the political process.

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I think statements of the kind that I have heard made here thismorning are radical and destructive of the liberties that we all relyon. Such statements ought to be of concern not just to those whoare interested in school desegregation cases but those who rely onthe courts to protect their rights in many other areas as well.

EDUCATIONAL EFFECTS OF DESEGREGATION

Let me turn briefly to the second question about the educationalimpact of desegregation. Contrary to the suggestions, and the statement was made here this morning by Senator Biden, that businghas been a failure the evidence shows that school desegregationplans involving busing have led to educational gains, that theyhave proved stable over time, and that they have been ultimatelyaccepted by many of the communities involved.I am sorry Senator Biden is not here, but I would say specifically

as someone who has been involved in Wilmington that despite allthe dire predictions that were made before that plan was implemented, it has gone very well. It has gone peacefully. There havebeen achievement gains in the schools. The communities are staying with it even though it is only in its third year of operation.I would say Wilmington is one of the success stories. I would love

to discuss with Senator Biden the evidence on which he believesthat desegregation has not been a success in Wilmington, if that is,indeed, what he believes.On the first point, that desegregation has led to achievement

gains, the most important current research on the links betweenschool desegregation and achievement scores has been conductedby social scientists Robert Grain and Rita Mahard.What they did was to analyze very carefully more than 100 case

studies of desegregation. They have found in communities such asSacramento, Fort Worth, Nashville, Charlotte-Mecklenburg, andLouisville, the achievement scores of minority students increasedsignificantly after desegregation.No study has concluded that white students suffer academically

from desegregation.They have now gone beyond the question of whether to try to

identify conditions under which desegregation produces the bestresults. In their most recent report which became available justlast month, they conclude that metropolitan or countywide plans,such as the one Mr. Chambers described in Charlotte-Mecklenburg,and which involves substantial busing, have been the most successful in leading to achievement gains for minority students.The Grain and Mahard findings are supported strongly by the

results of the national assessment of educational progress thatappeared just last month. The assessment reports major gains forblack children in reading during the past decade, particularlyblack children in the Southeastern States. It is in the SoutheasternStates that school desegregation orders were implemented on alarge scale in the 1970's and where the plans have been metropolitan or countywide in character because no boundary line dividesthe city and suburban districts.Second, metropolitan desegregation has been stable and has

achieved community acceptance.

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A few years ago, there was a great deal of public attention onreports that suggested that desegregation was self-defeating because it would lead to white flight. It turned out that the conclusions of the most publicized report were based on data from bigcities where school desegregation had never been ordered.Almost all of the demographers and social scientists who have

studied this issue have concluded that while there may be a 1- or 2-year impact, the declines in enrollments of central city schoolsstem far more from continuing suburbanization of whites, which isa movement of very long standing, than from desegregation orders.In other words, if you looked at two central cities, one in which

there was a desegregation order and one in which there was not adesegregation order, and then looked at them 5 years later, you arelikely to see very much the same pattern whether or not there hasbeen school desegregation in both cities.A more accurate measure of the workability of desegregation

plans can be obtained in the South where the plans have beenmetropolitan or systemwide. Again, in districts such as Tampa-Hillsboro, Charlotte-Mecklenburg, Nashville-Davidson, those planswhich involve extensive busing have been in effect for about 10years and have proved remarkably stable and successful.Despite all the furor over busing, most parents are far less

concerned about how their children get to school than the qualityof their education. In the countywide plans where each classroomcan consist of a majority of advantaged children, you have a favorable educational environment. In many of these communities, oncedesegregation took place, parents and educators worked very hardto improve the quality of total schooling for black and white children after desegregation. They have succeeded.I would also suggest that you take a look at the recent New York

Times CBS news opinion poll showing that most people in communities that have undergone desegregation react favorably to theexperience after the plan has been in effect for 3 years.Indeed, over the long run, metropolitan plans may provide an

answer to concerns expressed about busing. Here I direct yourattention to the center study conducted by my colleague, DianaPearce, that finds significant housing desegregation taking placeafter school desegregation in these metropolitan plan communities.This was the pattern in communities as diverse as Racine, Wis.;Witchita, Kans.; Riverside, Calif.; and Charlotte-Mecklenburg, N.C.Once you stop labeling the schools as black or white, people do

not cluster around them in the same fashion. Real estate brokershave a harder time steering people to communities based on whatthe school looks like.Finally, I think that desegregation has led to other gains for

black and white children. It goes beyond what you can measure onstandardized tests. Over the past 15 years, we have seen a lot ofprogress in this country. We have minorities entering the professions and the skilled trades on more than a token basis. We haveminorities enrolled in universities and graduate schools on morethan a token basis.Much of this breakthrough, I would suggest to you, is attributa

ble not only to the general crumbling of racial barriers, but to the

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fact that when you open up the school systems, you widen thehorizons of minority youngsters.In Boston, for example, a researcher hostile to desegregation, Dr.

Armor in fact, had to concede that black students from all incomelevels who were enrolled in integrated suburban schools wound upin better colleges and universities than their counterparts whoremained in segregated schools.Like Julius Chambers, I grew up in a segregated society as well.

I think that what we are talking about is something for whitechildren as well as black children. My children who went to integrated schools are far better off in their understanding of the realworld and in their ability to cope with it than I was having grownup in a segregated society.

CONCLUSION

In conclusion, what I am saying is if the committee takes thetime to examine the evidence, to amass it, to look at it carefully, Ibelieve it will come to the conclusion, as Senator Mondale's committee did in 1972, that the body of cases from Brown to thepresent represents sound constitutional jurisprudence and that desegregation, when it is properly implemented, is sound educationalpolicy.We are all concerned about our strength as a nation and our

strength as a people. What we are talking about here is what weneed to do to eliminate the stain of racial discrimination, which isone of the few things that mars that strength.Once before in our history, we had made some progress. Howev

er, then the laws were dismantled and a Supreme Court Justice,Justice Bradley, said that the time had come for black people tocease being "special favorites of the law."Now I think finally we have come to a point where we have

begun to recover from that disaster in our history. We have madasome progress in dismantling the racially dual society that wascreated to replace slavery in the country.However, now we hear the echoes of the same views. I think it

would be a tragedy if we in this country made the same mistaketwice.Thank you very much.[The material follows:]