Challenging Exclusion

It was not Gerald Ford's finest campaign hour. In reply to an unexpected question on CBS-TV's Face the Nation last week, the President offered his opinion that parents have the right to send their children to segregated private academies, so long as those schools did not receive federal funds or tax advantages. He added that his own children had always attended integrated schools, and he "hoped" no school would deny admission on the basis of race. But, he said, "individuals have rights," and in his opinion those rights included the choice of a segregated private school.

Candidates in a national campaign are, of course, pressed to state their views on an hourly basis, often with precious little chance to weigh them. In this case, the President's views may not stand up in court--at least if his Justice Department's arguments to the U.S. Supreme Court prevail. Among the cases still on the Supreme Court's docket is an appeal from a decision against two Virginia private schools that refuse to accept black students. Two federal courts have already ruled against the schools (and Ford's position) on 13th Amendment grounds. If the Supreme Court affirms the judgment of the lower courts, a new legal frontier in racial discrimination will have been established.

The 13th Amendment, which abolished slavery, was reinforced in 1866 by a statute declaring: "All persons... shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence and to the full and equal benefit of all laws ... for the security of persons and property as is enjoyed by white citizens..."

Denial of Rights. The case at hand is whether black parents are denied the right to make a contract, as defined by the 13th Amendment, by the policies of the schools. The Justice Department, in a brief filed by Solicitor General Robert Bork, argues in support of the decisions of the lower courts that such a denial of rights has occurred. As Appeals Court Chief Judge Clement Haynsworth Jr. wrote in one of those decisions, the law "is a limitation upon private discrimination, and its enforcement ... is not a deprivation of any right of free association or privacy of the defendants ... or of their pupils or patrons."

In explaining Ford's lapse, an Administration spokesman observed: "He [Ford] was not prepared for the question, and he gave a standard 14th Amendment answer." By that he meant that until now most discrimination cases, conditional upon some governmental action, have been decided on the 14th Amendment due process and equal protection clauses, rather than on 13th Amendment grounds. The decision in the Virginia cases, when it comes, is likely to be a landmark, since, particularly in the South, segregated private schools have burgeoned as a response to the increasing desegregation of public schools.

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