Busing —Not Integration— Opposed:
Invoke Our Color-Blind Constitution to End It / Chapter Seven
|Invoke Our Color-Blind Constitution
to End Busing
Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This history adds weight to a conclusion that to exercise federal judicial power to order public school assignments over 40 years after Brown and over 26 years after Green is a "drastic" use of that power. It was justified temporarily to correct a constitutional violation by a North Carolina school district, as recognized in Swann by the statement that in the absence of such violation by such district there would be no basis for ordering assignments of students on a racial basis. Thus, the law calls for review, upon this request, of the continued use of such drastic federal judicial power initiated as a temporary measure.
The judicial placing of power in federal trial judges to order student assignments, vested by state law in the school board, has placed the judiciary in a position in which the exercise of judicial restraint is determinative as to its discontinuance. Accordingly, the exercise of judicial restraint here calls for taking into account the current facts submitted by intervenors favoring the return to the school board of the matter of student assignment under the principle of federalism.
It also calls for taking into account factors not considered upon the initiation of the busing of intervening students and others similarly situated. One such factor is that, a generation after the plaintiffs in the then-favored class received the favorable ruling, such class should have the burden of showing that there remains the existence of a class within the meaning of Swann entitled to the continuance of that ruling. Another is that, there being no nexus between intervenors and the board's predecessors as to the de jure discriminatory acts giving rise to the busing order, any vestige remaining of such acts, after over 20 years of affirmative action, should not be sufficient to deny this relief to intervenors.
Upon the showing of these intervenors, in accordance with the principle of federalism, the trial court should refrain from asserting the authority to forcibly assign students to particular schools on the basis of race. It should recognize the authority of the school board and its constituents in the area of student assignment.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Green v. County School Board,
391 U.S. 430 (1968)
New Kent County, Virginia
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 32 (1971)
Charlotte, North Carolina
|— Busing: Chapter 7, pages 100 - 130 —|