Cruel and Unusual Punishment

...To carry out this punishment, the courts have abandoned the constitutional principle of equal treatment, replacing it with the canon that means justify ends and degrading the Constitution to a mere tool of social policy...

...no longer would the Constitution allow black children to be bused past their neighborhood school (or the school they would otherwise have chosen freely to attend) to the "black school" down the road...

...Since 1971, the Supreme Court has steadfastly refused to admit - - i n fact it has repeatedly denied--that Swann (or any other decision) established racial discrimination in education as a constitutional principle...

...It may sound paradoxical to claim that contemporary school integration law is illegal, since the courts decide what is legal and what is not...

...Compulsory school integration ultimately rests, not on a construction of basic constitutional rights, but on a series of essentially arbitrary acts of judicial will...

...What else could be expected when the Supreme Court insists that quotas are not constitutionally required and upholds the de jure-de facto distinction in theory, and then requires quotas and obliterates that distinction in practice...

...By demanding the assig.nment and busing of children to schools on the basis of race, Swann reversed Brown's prohibition of government-enforced racial discrimination and reinstated Plessy's sanction of such discrimination-albeit for a different end...

...and have tried--but failed--to impose what amounts to geographical reorganization of local governments (Richmond, Detroit...

...Even if it were enacted, the courts could circumvent it without much difficulty-as they did the Civil Rights Act--or the Supreme Court could find it unconstitutional simply on the basis of the precedent established by Keyes...

...In devising and applying this segregation-remedy rationale ("desegregation"), the Supreme Court has had to develop an aversion to intellectual honesty, a disdain for reality, and a taste for the bizarre...

...against them stands no effective countervailing power It took the Supreme Court almost 60 ),ears to overturn !Ye.v.,3...

...Else the Court really does believe that school racial imbalance is harmful, and thus remediable through integration, but is unwilling to say so constitutionally because, as shown above, such an admission would be tantamount to asserting a constitutional double standard...

...Questions of harm, the Court has asserted frequently, are constitutionally irrelevant.* Constitutional rights can be said to have been violated only if there is evidence of segregative actions or intent (either past or present) on the part of government officials...

...Reasserting the principle of nonracial school assignment enunciated in Brown, the Act declared: The meaning of this passage is unmistakable...

...It is also racist, for it violates the intention of the Brown decision, the Fourteenth Amendment, and the Civil Rights Act of 1964...

...In mandating busing, first in the South and later throughout the country, the courts also appear to have forgotten the process by which constitutional law ought to be made--in accordance with reason, fact, and principle...

...Although the Supreme Court justified its ruling as merely elaborating and fulfilling the promise of Brown, the decision actually represented the twentiethcentury analogue of the infamous 1896 Plessy case...

...neither blacks nor whites were to be "disadvantaged," i.e., to be classified according to race and assigned and bused to schools outside their neighborhood merely for the sake of racially balanced schools...

...Nor should the activity of the lower courts be overlooked...

...As the watershed year in the black struggle for civil rights, 1964 signalled the development of a national commitment to eradicate discrimination in the public schools (and elsewhere...

...In attempting to assess the intentions of school authorities and in placing upon them the burden of proof, the courts have inverted the standard injunction of legal due process...

...Left to their own devices, the lower courts have played havoc.with the nation's school systems...

...To announce openly that the Constitution really supplies such a double standard would expose the untenable logic of mandatory integration, making the Court look quite foolish...

...They promptly elected new school board members who rescinded the plan...

...Seven years later, the Supreme Court's decision in Swann v. Charlotte-Mecklenburg repudiated that commitment...

...Displaying their remarkable ingenuity, the courts administered the coup de grace: They used the rescission of the plan (which if anything signified how well democracy worked in Denver) as evidence of intentional "segregative" action by the school board...

...any case, years of social science research provide no firm basis for believing that integrated education sabstantia!ly imploves black achievement,, black psvchotogy, or zace relations...

...Unfortunately, the most recent Supreme Court decisions offer little consolation to the estimated 600 school districts still expected by the Department of Justice to undergo desegregation...

...Judge John Sirica, of Watergate fame, has ordered the Department of Health, Education and Welfare to cut off federal funds to six school districts, to enforce its own desegregation guidelines (i.e., quotas) in 26 districts, and to wrap up investigations of 14 others...

...But in 1969 the same district court ordered busing, while admitting that its order disputed its findings of 1965-66...

...Graglia shows that the Court somehow failed to notice that the actions it cited as "segregative" had occurred chronologically after the inner-city schools became "segregated...

...What is worse, compulsory busing has greatly accelerated white flight, creating, in such cities as Detroit, Atlanta, Pasadena, and Louisville, new patterns of residential racial separation even more intractable than the old...

...The Fourth Circuit affirmed the district court's ruling, but ignored the assumptions about educational achievement on which it was based...

...In 1969, a proposed two-way busing plan, which threatened to disrupt the tradition of neighborhood school assignment, understandably antagonized the people of Denver...

...Last July, district court orders entailing involuntary integration plans were sustained by the Sixth Circuit Court of Appeals for Dayton and by the Seventh Circuit for Milwaukee...

...The Court now proscribes discrimination intended to segregate and prescribes discrimination aimed to integrate...

...Steven C. Munson, an editorial assistant at The Public Interest, wrote his thesis at Earlham College on desegregation...

...As Lino A. Graglia thoroughly documents in Disaster by Decree (Cornell University Press, 1976), the opinions in Green, Alexander, Swann, Keyes, and other cases are so fraught with glaring inconsistencies, linguistic perversities, and persistent distortions or omissions of fact, that they are literally incomprehensible...

...Nevertheless, compulsory school integration unequivocally violates the meaning and intention of the Brown decision, the equal protection clause of the Fourteenth Amendment to the Constitution, and the Civil Rights Act of 1964...

...Originally thought our best hope for securing the rule of law over the rule of men, the Supreme Court has now reduced the rule of law to a cruel hypocrisy by illegally decreeing compulsory busing...

...Since busing is now the law of the land, it is hard to avoid the conclusion that the Court thinks irrationally with amazing regularity...

...The Fourteenth Amendment purports to guarantee equal protection under the law to all citizens, and this principle implies that government should disadvantage no one because of race...

...If the phrase "least dangerous branch" ever truly characterized the Supreme Court, it does so no longer...

...What of the Ford Administration's initiatives...

...The school board in Charlotte-Mecklenburg, for example, had complied with the constitutional requirement proclaimed in Brown--nondiscriminatory school assignment...

...The "[D]esegregation" means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but "desegregation" shall not mean the assignment of students to public schools in order to overcome racial imbalance...

...e r only hope it doesn't take the Court that king ~,, u~(t,~ tim damage--constitutional, political, social, and e~.a .q~ , ~. ~ inl]i~t(-d bv Swarm...

...Graglia also notes that throughout the 1960s the Denver school board had located boundaries and constructed schools with the explicit aim of furthering integration...

...The tortuous procedure and rationale invoked by the courts suggest that busing is not so much a remedy as a punishment, a way of making presentday school boards atone for the sins of their racist predecessors...

...While appearing to recognize that demographic realities and white flight have severely hampered the success of compulsory integration in Pasadena and Chattanooga, the Court refuses to admit the ongoing failure of busing in Boston, permitting Judge Garrity to continue his personal crusade against the people of that city...

...The Court distinguished itself, in 1954, with its Brown v. Board of Education decision forbidding segregated school systems...

...We are, I fear, at the mercy of the courts in matters of school integration...

...The ideal of principled decision-making is currently drowning in a morass of judicial "good intentions" and legal confusion...

...In Keyes, the decision which extended busing outside the South, the Supreme Court ruled that "segregative" actions by school officials in one section of Denver, Park Hill, had contributed to the "segregated character" (i.e., predominantly black composition) of Denver's inner-city schools...

...This act shall not] empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance...

...in effect, school boards are now presumed guilty of segregation until they can prove themselves innocent (a burden more difficult to bear now that the past as well as the present and intention as well as action are of equal legal significance and relevance...

...This single ruling, involving 46 school districts in 17 states, testifies to the power now wielded by unelected judges tenured for life...

...By presuming racial discrimination to be evil per se, Brown provided the only proper and reasonable interpretation of the Constitution...

...so a district court declared in a 1965 ruling that was upheld the next year by the Fourth Circuit Court of Appeals...

...Brown put an end to invidious racial classification in public education...

...This being the fifth decision of its kind, it seems that even HEW, usually known for its zealousness in pursuing "affirmative action," cannot match the vigor of the courts...

...But if that is so, the Court clearly has no persuasive reason to compel integration as a remedy...

...it has reason only to demand an end to any existing segregative practices...

...In every case, it has dismissed or disregarded the argument, often made by lower courts, that busing should be imposed because racial imbalance in the schools is in itself harmful to blacks...

...With other suits pending in Cincinnati, Columbus, Akron, Youngstown, and Toledo, the NAACP is demanding, apparently in order to simplify its efforts, a state-wide compulsory integration plan...

...That, prior to Brown, state-imposed racism had the stamp of constitutional legitimacy as well as general public support, is one of the most deplorable facts of American history...

...Attorney General Levi's aborted attempt to intervene in the Boston case exemplifies the weakness of the Executive Branch, and shows how easily intimidated it is by the civil rights lobby...

...It appears that Cleveland may have to submit to a cityto-suburb busing plan...

...Ford's legislative proposal to limit the application and duration of court-ordered busing (designed ostensibly to avoid the certain failure of a constitutional ban) will probably never get past the Senate...

...Judicial reasoning in busing cases suffers from a chronic affliction of irrationality...

...In August, the Sixth Circuit approved the busing plan implemented last year in Louisville, court-ordered busing went into effect in Dallas, and a district court, holding for the NAACP, ruled the Cleveland school system "deliberately segregated...

...It simply decided that an extensive, computerized quota and busing scheme was necessary to improve black educational achievement...

...The Supreme Court claims to make a distinction between de facto and de jure segregation...

...The President and the Congress acknowledged the wisdom of the 1954 Supreme Court's judgment with their adoption of the Civil Rights Act a decade later...

...Conver:se/y, it cannot be supposed that ~egregated education is harmful per se to black!< The Alternative: An American Spectator November 1 ~,,6 L...

...Ironically, these acts have served to promote, rather than ameliorate, social disorder and injustice...

...Finally the Supreme Court upheld the busing order handed down by the Fourth Circuit, but on ffrounds that were not even at issue in the district and appellate court proceedings: namely, that the school board had not fulfilled its obligations under Brown...

...Both decisions, however, authorized the practice of racial discrimination, and by virtue of that common denominator, both were incompatible with Brown...

...Instead, racial quotas and busing are defended as remedies necessary to cure the continuing effects of past segregation...

...16 The Alternative: An American Spectator November 1976 Court produced no evidence for this argument, which had been rejected by both district and appellate courts in 1965-66...

...Unlike Plessy, Swann required or permitted discrimination to mix the races in the public schools, not to separate them...

...instead, the Fourth Circuit ruled that busing was necessary to remedy school segregation resulting from government-caused residential segregation...

...The reason is obvious...

...but its subsequent decisions on race and schools show the Court to be as susceptible to passion as a popular Congress and as prone to tyranny as a single Chief Executive...

...In the process of, or in addition to, effecting complex and expensive busing schemes, the courts have assumed direct and nearly complete control over the daily operation of school systems (CharlotteMecklenburg, Boston), have abolished such standard and useful educational practices as testing, ability grouping, and tracking (San Francisco, Washington, D.C...

...The 1971 Swarm verdict for the first time required busing to achieve racial balance in the public schools...