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I.F. Stone Reports: Moving the Constitution to the Back of the Bus

This confuses statutory with constitutional rights. The National Labor Relations Act established certain statutory rights and the remedies to enforce them. In representation cases appeals to the courts are restricted to protect the rights of workers and the authority of the National Labor Relations Board from interminable interference by injunction.5 When Congress establishes statutory rights, it can provide, change, or withdraw not only the remedies but the rights themselves. But rights created by the Constitution are not subject to restriction or withdrawal by Congress. Constitutionally the precedents for what Nixon is trying to do are not only not “ample,” to use Kleindienst’s word, they are non-existent. Even Ex Parte McCardle didn’t withdraw the right of habeas corpus from that Confederate editor. He appealed for the writ in the circuit court and lost. All Congress did on the face of it was to withdraw the Supreme Court’s appellate jurisdiction so he could not get a reversal in the Supreme Court. The radicals could argue that neither the right to habeas corpus nor the remedy was withdrawn. Kleindienst was mumbling through his hat.

This is where the constitutional problems begin with Nixon’s long-range measure, his “equal educational opportunities” bill. In some ways the unconstitutionality of this bill is even plainer than his other bill for a temporary “moratorium.” For the longer range measure seeks to restrict the remedies the courts may apply in school desegregation, especially busing, and thus nullify their power to enforce constitutional rights created by the “equal protection” clause of the Fourteenth Amendment.

But before we go into the legalities, I would like to call attention to the vagueness of the factual presentation on busing in the White House briefing. If the Administration were going into the Supreme Court in a plea against busing, the first requirement would be evidence for Nixon’s TV assertion that busing had reached “massive” and unreasonable proportions. In this respect the briefing was not only unsatisfactory but confusing. At one point toward the end the question was asked:

If, as the experts have testified here, we do not even know the extent of busing involved in the desegregation process, then what is the hard evidence that supports a Presidential call for a moratorium on busing?

To this Mr. Ehrlichman could only furnish a long, emotional but inconclusive answer the gist of which was, “Every place you go around this country” this is “the front-burner issue in most local communities.” But there are some figures and they do not support the hysteria whipped up during and since the Florida primary.

The latest issue available of the Digest of Educational Statistics 6 carries a table on the number and percent of public school pupils transported at public expense. This shows a sharp rate of increase in public transportation in the quarter-century before the school desegregation decision in 1954. The percentage transported was 7.4 percent in 1929. In the next ten years it more than doubled to 16.3 percent in 1939. In the next decade it went up by three-quarters to 27.7 percent in 1949. In the school year of the Brown decision, 1953-54, it had risen to 32.8 percent. In all those years there was no outcry against busing. Busing made possible the transition from the one-room schoolhouse to the consolidated school. The outcry against busing only began when it was used to mix white with colored, affluent with poor.

In the years since Brown, the percentage of bused schoolchildren has risen to almost 45 percent. But less than 3 percent of the total, according to a speech in the House on March 22 by Congressman Stokes (D., Ohio), chairman of the Black Caucus, “are bused for purposes of desegregation.”

The figure is startling and it is up to the Nixon Administration to rebut it. It begins to seem less startling when one looks at the statistical tables that accompanied the Stokes speech. These originated with an HEW release of last June 13 on the progress made in desegregating schools. The figures show that in 1970, 71.8 percent of all black pupils were in schools where 80 to 100 percent belonged to a minority race. The percentage of black pupils going to schools where more than half the students were black or brown was 83.9 percent. The figures show that Nixon was, as Stokes said, “tragically and grossly incorrect” when he declared in his TV address on busing that “the dismantling of the old dual system has been substantially completed.” Only 16.1 percent of all black pupils were in schools where more than half the pupils were white.

Busing may be far from satisfactory but the courts have been driven to it by years of skillful evasion of desegregation decisions. To abandon it in the absence of better remedies is to risk a deepening of racial disillusion and bitterness. The new Nixon legislation, under cover of the anti-busing hysteria, would invite resegregation. At the White House briefing the press was assured that no “rollback” was intended, but that is exactly what Section 406 of Nixon’s “equal opportunities” bill invites. It says:

On the application of an educational agency, court orders or desegregation plans under Title VI of the Civil Rights Act of 1964 in effect on the date of enactment of this Act and intended to end segregation of students on the basis of race, color or national origin shall be reopened and modified to comply with the provisions of this Act.

Just to make the purpose clear to the least discerning, this provision carries the heading “Reopening Proceedings.” Segregationists and white supremacists will be down like a swarm of hornets on any school board that does not take advantage of these provisions. The proposed act holds multiple attractions for those who would like to turn back the clock. Title IV, Section 402, “Remedies,” spells out all the old dodges school boards have used since Brown to avoid integration and provides that no busing may be ordered by a court “until it is demonstrated by clear and convincing evidence”7 that “no other method set out in Section 402 will provide an adequate remedy.” Since one of the methods spelled out is “the construction of new schools,” this is another route to “separate but equal,” the old Plessy v. Ferguson Jim Crow doctine the Brown decision in 1954 was supposed to have outlawed.

Nixon’s bill would upset almost two decades of adjudication and sprinkle the path of integration with new legal pitfalls. An example is in Section 401, which says that a court can impose “only such remedies as are essential to correct particular denials of equal educational opportunity.” What does “particular” mean? It might mean that each separate “denial” would require separate judicial action.

Looked at as a whole the two new bills clearly represent an attempt to turn back the clock and to override the Court’s authority in enforcing constitutional rights. It would take a Supreme Court packed with lawyers like Carswell, Rehnquist, and Kleindienst to rubber stamp this program as constitutional. Certainly Nixon must go far to the right of his own Chief Justice Burger and his own appointee Blackmun to obtain judicial approval. For Burger wrote, and Blackmun joined in, the unanimous opinion last April 20, 1971, Swann v. Charlotte-Mecklenburg Board of Education, which for the first time explicitly approved busing as a tool of integration and unleashed the white racist hysteria to which Wallace, Nixon, Humphrey, and many others who know better have been pandering.

Nixon’s own chief justice seems to be replacing Warren as the target of rightist slander. When Nixon, with sly demagogy, talked in his TV address of March 16 about busing children “across a city to an inferior school just to meet some social planner’s concept of what is considered to be the correct racial balance,” he was caricaturing and distorting Burger’s decision in Swann. The below-the-belt quality of Nixon’s rhetoric is brought into sharp focus when one recalls that the chief justice explicitly rejected the idea of a “correct racial balance” in favor of a pragmatic and flexible approach.

The constitutional command to desegregate schools,” Burger ruled in Swann, “does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” It would be amusing to know what the chief justice muttered to Mrs. Burger at this point in Nixon’s TV address.

In all Nixon’s career there has rarely been a trickier performance than in the presentation of his anti-busing program. Its unveiling on TV was misleading, its offer of new funds for “quality education” was deceptive, the gap between his presentation and the fine print in his legislative program becomes deeper the longer it is studied. “Mr. Nixon,” Congressman Conyers of Detroit told the House on March 22, “is playing a game which threatens to tear at the already delicate legal and social balance in this country. He has chosen to cater to the fear of the powerless and to manipulate the power of the fearful.” To the President’s untrust-worthy promises of quality education in the ghettos, this leading spokesman for the Black Caucus replied that even if Nixon were really offering new and adequate funding (which he is not):

Quality education is more than airy classrooms, well-paid teachers, and lots of books. There can be no quality education without integration. Quality education means an educational experience which will lay the foundation for intelligent participation in a democratic society. Children who are raised in isolation can hardly be expected to understand their society and its workings.

Integration has its hardships. Black as well as white children do suffer in adjusting to it. But these are the pains of movement toward multi-racialism. To stop the progress after so much sacrifice and disruption, to move back toward the past, to play on people’s worst instincts is to risk America’s future for the lowest kind of politics. The problems of education in our society are complex and appallingly difficult. No one has a full, much less an easy, answer. But the way toward it will not be found by diverting emotion and energy to the false and peripheral problem of busing. The price of failure is to drift further toward a country irreconcilably split into two hostile nations, a giant Ulster bound sooner or later to erupt.

AS THE MILITARY-AEROSPACE COMPLEX SEES IT

Florida Democratic presidential primary, for all its regional aspects and submergence in the emotional issue of school busing, pointed to one thing about the U.S. presidency: it probably can’t be won in 1972 on an anti-technology [a new euphemism for the military-industrial complex—IFS], anti-aerospace platform. All candidates who campaigned against so-called “misdirected priorities” in space and defense programs were soundly beaten, including former front-runner Senator Muskie…on the advice of his campaign staff, he spoke out against the space shuttle even in Brevard County, home of the Kennedy Space Center. He finished fifth in that county…. Statewide, the only other major Democratic candidate to take an anti-technology stance, Senator McGovern, finished even lower than Senator Muskie….

If the Wallace pattern repeats itself in 1972, i.e., basically a one-issue regional candidate, big winners in the Florida primary become Senators Humphrey and Jackson, both strong boosters of U.S. leadership in technology. Senator Humphrey has apparently successfully atoned for his vote against the supersonic transport in the last session of Congress as far as labor unions are concerned. He will receive increasing support from that job-conscious quarter as the campaign progresses. Thus the Democratic nominating process appears to be narrowing down to a Humphrey-Jackson race, and possibly a ticket in the same name, with the liberal wing apparently isolated by the issue of employment.

Aviation Week & Space Technology, March 20, 1972—IFS

MODEST AMBITION

I don’t believe Nixon wants to go down in history as the President who repealed the Fourteenth Amendment. I believe he just wants to stagger through November. After the election he might even be willing to enforce the law.”

—Louis Lucas, attorney for the plaintiffs in the Richmond, Virginia,
school case, commenting on Nixon’s TV attack on buses, Washington Post, March 18, 1972—IFS

  1. 5

    Kleindienst’s labor law is also deceptive. The predecessor labor board, established by executive order, had never been able to bring about a labor representation election where the employers balked because they found it so easy to enjoin the board in the courts. The hearings on what became the Wagner Act show that Congress restricted appeals from orders for representation elections to remedy this situation. Appeals to the courts were provided only where an employer, after such an election, refuses to bargain. He can then be hailed into court by the board for an enforcement order and thus obtain a judicial review indirectly.

    Even here, however, the courts have provided their own remedies outside the statute by holding in a few cases that the board could not enforce its orders if evidence showed that it had clearly exceeded its statutory authority. This is the meaning of Kleindienst’s opaque reference to the fact that “under certain circumstances” the Supreme Court “has said what the remedy would be.” How much greater is the Court’s power to apply its own remedies, like busing, to enforce constitutional rights!

  2. 6

    Publication No. OE 10024-70 (Department of Health, Education and Welfare, 1970). See Table 46, p. 36.

  3. 7

    This, the standard proof required for fraud in civil cases, is far more strict than any of the more familiar standards for regulatory agencies. It represents another hurdle to successful integration suits.

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