Busing —Not Integration— Opposed:
Invoke Our Color-Blind Constitution to End It  /  Chapter Five

Busing Advocacy Is Understandable,
but Without Understanding
    for, and the longevity of, the grand design.

In view of this historical background leading to Brown and consolidated cases, one can readily understand why the plaintiffs' attorneys, and associates, pressed for busing orders (and succeeded in obtaining them over twenty years ago) in cases like Green and Swann. Their obtaining of busing orders in such cases has led to a formidable advocacy of continuous busing, seen as necessary to accomplish "desegregation," as now defined by them, in school districts who did long ago, but no longer, practice de jure segregation in the manner condemned by Brown.

The initiation of busing orders in the late sixties and early seventies has brought forth efforts, bringing to mind those in the New Deal era, to curtail the power of the courts by legislative and other means. Proposals such as legislation to limit the jurisdiction of the federal judges, and hence their power to issue busing orders, have been broached, but stalled, in Congress.

A less drastic and more effective approach is for those who are suffering a loss of liberty under existing busing orders to invoke the Constitution in the manner illustrated above. Thereby they can stimulate school board action, or, better yet, take independent action in their behalf. The busing dissenters in San Diego, by their intervention, offered constitutional objections, first, to the school board, and then to the trial court in Carlin v. Board of Education, which were successful in the sense that the distinguished Superior Court Judge Louis M. Welsh, and his successors, refrained from mandating "forced" busing in that lengthy case. The plaintiffs abandoned their appeals from orders omitting a busing segment in the district's voluntary integration plan. Thus, the constitutional objections, raised in behalf of the intervenors and others similarly situated, have stood as a barrier to "forced busing" of students to change racial ratios caused by residential patterns.

Underlying these constitutional objections is an appeal to judicial restraint similar to that made by the government in United States v. Butler, drawing upon the famous dissent by Justice Stone to attain the restraint called for by him. Therein lies the constitutional formula to be offered by busing dissenters of all races, no longer powerless, to finally end decrees mandating student school assignments on a racial basis to particular schools to racially balance them.



Butler United States v. Butler, 297 U.S. 1 (1936)
Brown I Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Topeka, Kansas
Carlin Carlin v. Board of Education, San Diego Unified School District,
San Diego Superior Court No. 303800 (1967-1998)
San Diego, California
Green Green v. County School Board, 391 U.S. 430 (1968)
New Kent County, Virginia
Swann Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 32 (1971)
Charlotte, North Carolina
  Busing: Chapter 5, pages 67 - 80 — PreviousNext
Busing —Not Integration— Opposed
Invoke our Color-Blind Constitution to End It

A Reasoned Opposition to Race-Based
Affirmative Action in Public Schools
by Elmer Enstrom, Jr.
History of the 30-year Carlin affirmative action lawsuit:
a pro bono case history of applying Constitutional principles.
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