The Carter administration, which [WORD ILLEGIBLE] endorsed busing between a [WORD ILLEGIBLE] its suburbs to desegregate [WORD ILLEGIBLE] in the Wilmington, Del., area, is opposing a similar busing plan for Indianapolis and its suburbs.
In a "statement of position" on the Indianapolis case filed Monday night in the Seventh U.S. Circuit Court of Appeals, the Justice Department gave a new clue to the emerging outlines of the aadministration's civil rights policy.
Assistant Attorney General Drew S. Days III, head of the Civil Rights Division, has said this policy will focus on solutions based on the facts and legal issues presented by each situation.
That approach seemed to be underscored by the different positions taken by the department in the Wilmington and Indianapolis cases.
Department Attorneys argued yesterday that the two positions are consistent with the rules laid down by recent Supreme Court decisions and with civil rights policy established under the Ford administration.
That policy is to seek court orders ending school segregation that has been caused by unconstitutional official acts such as the assignment of pupils or the drawing of school district boundaries.
However, the policy also holds that the scope of court-ordered remedies should be no greater than what is required to correct proved unconstitutional violations.
In other words, the aim is to "put the schools and students where they would have been had the constitutional violation not occurred" rather than using the remedies to achieve "a desirable racial mix."
Bearing directly on this policy has been a pair of recent Supreme Court decisions upholding laws and government actions that are racially discriminatory in their effect but that have not been shown to be discriminatory in their purpose.
When it intervened last week in the Wilmington case, the Justice Department specified that it was not departing from its established policy. It argued that there was evidence in the Wilmington case of discriminatory practices by city and suburban officials and that busing across city-suburban lines therefore was the proper remedy for these acts.
In the Indianapolis case though, the department contended, There is no finding that the suburban school systems operated racially discriminatory school systems." When that finding is weighed against the Supreme Court's standard, there is no legal basis for ordering busing from the city to its suburbs.
At issue is an order by a U.S. District Court judge, later affirmed by the Seventh Circuit appellate court, that called for busing 9,500 black students from Indianapolis into suburban districts that are largely white.
On Jan. 25, the Supreme Court, by a vote of 6 to 3, nullified the plan and sent it back to the Seventh Circuit for reconsideration in light of two decisions made by the high court in recent months.
In the first case, the Supreme Court last June rejected a challenge by blacks to an entrance exam for the District of Columbia police force. The court said that, while blacks might have greater difficulty passing the exam than whites, it had not been proved to have "a recially discriminatory purpose."