Where the Law Stands Today

AMID the furor over the Stennis and Whitten amendments, the forced resignation of HEW Civil Rights Chief Leon Panetta and Senator Abraham Ribicoff's blistering attack on Northern hypocrisy, the nature and precise scope of existing U.S. law on race and the schools have largely been obscured. At issue are two sets of vital distinctions: the difference between integration and desegregation, and that between de jure, or governmentally imposed, and de facto, or accidental residential segregation.

The foundation of the law was laid in 1954 when the U.S. Supreme Court handed down its landmark decision in Brown v. Board of Education of Topeka, Kansas. In it, the court held that officially segregated schools were inherently unequal and therefore unconstitutional. It is often overlooked that the court did not order integration, the conscious mixing of the races in schools. Its ruling was negative: that legally sanctioned, or de jure segregation, which then prevailed throughout the South, is unlawful. All the court's subsequent rulings in the 16 years since have consistently followed this precept of "againstness" rather than "forness." Thus in 1955 the Supreme Court ordered the Southern and Border states to proceed "with all deliberate speed" to eliminate dual school systems. In 1966 the Fifth Circuit Court of Appeals allowed "freedom of choice" plans, but only as a means toward ending segregated school systems. Two years later, the Supreme Court realized that such plans were delaying rather than hastening desegregation, and ordered Southern school districts to come up with more effective methods. And in 1969 it ran out of patience entirely. In its October decision in Alexander v. Holmes, it held that 15 years was long enough for school systems to accept the law of the land, and ordered the immediate desegregation of schools throughout the region.

While making clear what it did not want, the court has been far less enlightening on what it does want. Though it has indicated its dissatisfaction with the "tokenism" that places a few blacks in a previously white school, it has not attempted to lay down a formula for acceptable desegregation. Lower courts have also been vague, and seemingly contradictory rulings have been issued by the Fifth Circuit Court. One holds that where segregation is the result of past patterns of residential discrimination, the schools must go beyond mere rezoning if that alone fails to achieve a better balancing of the races; the other holds that redistricting, if fairly done and enforced, is sufficient. Nor has the Supreme Court ruled on the legality of busing, which some argue is forbidden under the 1964 Civil Rights Act.

The court's negative mandate to the South has been clear, and de jure segregation is now theoretically all but dead. Though unhappy about the court's demand for immediate action in the few remaining pockets of Southern resistance, President Nixon has announced that he will respect and enforce the law. Responsibility for enforcement rests with the Justice Department, which may bring suit to force compliance from recalcitrant school districts. Local authorities have taken their cue from the Chief Executive. Realizing that further resistance is fruitless, they have struck their Confederate colors and opened once all-white schools to black children. Schools in about 30 Mississippi districts desegregated without serious incident last January; Greenville, S.C., where whites are in the majority, went even further, and actively integrated their 104 schools, reassigning and busing pupils.

To those in the North, however, the court's message is far less certain. Northern educational apartheid is the result of ghetto housing patterns, not legislative intent, and is thus harder to combat.

Some twelve Northern states have adopted legislation dealing with de facto segregation, but judicial opinion remains divided. U.S. Appeals Court Judge J. Skelly Wright ruled in a 1967 case involving Washington, D.C., that de facto segregation is just as illegal as that imposed by local law. Los Angeles Superior Court Judge Alfred Gitelson, noting that the result of segregation was the same regardless of the cause, partly brushed aside the distinction between the two types in a decision last month. He gave the Los Angeles Board of Education until June 1 to come up with a master plan for the racial integration of the city's huge public school system. But many legal experts believe that Gitelson's ruling will be upheld. Lower courts, however, have tended to disagree with Wright and Gitelson; their decisions have held that de facto segregation, though obviously undesirable, is nonetheless constitutional.

The Supreme Court has thus far done nothing to resolve the issue. Persistently refusing to rule, it has turned down a chance to decide--and make new law--on a dozen cases involving de facto segregation. Its action therefore leaves judges and politicians alike with the impression that it believes such segregation to be constitutional. And so it will be, until and unless the court rules otherwise.

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