The U.S. Court of Appeals for the District yesterday upheld congressional amendments that prohibit the Department of Health, Education and Welfare from threatening to cut off federal funds unless racially segregated school districts adopt busing plans.
Senior Judge David L. Bazelon, in an opinion for the court, said the amendments were constitutional because other enforcement tools -- principally the courts -- are available when busing is the only desegregation remedy.
Bazelon made it clear, however, that if it were later shown that court suits failed to assure equal educational opportunities, the amendments would be open to further challenge.
The ruling affirmed a 1978 decision by U.S. District Court Judge John J. Sirica in a suit brought by a group of public school children and their parents.
The contested amendments -- mainly the 1974 Esch amendment and the 1976 Eagleton-Biden amendment -- essentially prevent HEW from requiring "the transportation of any student to a school other than the school nearest the student's home." An explicit purpose of the amendments, Bazelon said, was to take "HEW out of the busing business" and thus ensure that "mandatory busing orders" come either from local officials or the federal courts, and not from an HEW threat to cut off funds.
Attorneys for the students and parents argued that the amendments destroyed the "single, proven and most effective remedy" for achieving desegregation -- the cutoff of federal funds. Bazelon, in a foot-note to his opinion, said the government conceded that the amendments restriction on fund termination is " a bad idea." Bazelon said the government added, however, that "bad ideas are not automatically unconstitutional."
"HEW has an obligation, as a government agency, not to participate in unlawful discrimination," Bazelon said. The congressional amendments, he wrote, do not relieve HEW of the obligation to see that no federal money supports segregated schools.
Nothing in the amendments prevents HEW from negotiating with school districts to secure a voluntary busing plan, Bazelon said. And nothing stops HEW from taking a case to the Department of Justice, seeking legal enforcement of degregation plans, Bazelon said, noting that the department can enter negotiations with districts and seek settlements.
The Justice Department Bazelon wrote in a 35 page opinion, "is under a strict obligation to avoid delay" in resolving the issues. "Otherwise the amendments may be seen as a tool of delay to avoid dismantling unconstitutionally segregated school systems."