THE INTENT of those members of Congress who voted for that anti-school-busing rider is clear. They want the yellow bus eliminated as a tool for helping to solve segregation problems in the public schools. But the language of the rider they have attached to the Department of Justice's appropriations bill is far broader than that. It could take the government's lawyers completely out of school desegregation cases everywhere in the country. It is not surprising that black leaders and Attorney General Civiletti have recommended a presidential veto.
The rider purports to bar the Justice Department from bringing any action "to directly or indirectly" require the busing of students, except those who are handicapped, to schools other than those closest to their homes. If this rider is constitutional -- and we, like the attorney general, doubt that it is -- a strict reading of its language could end the Justice Department's participation in almost all school cases. That's because any case or even any investigation of a particular school district's racial policies can end "indirectly" in a busing order. The decision to bus or not to bus, after all, is not in the hands of the Department of Justice but in the hands of the federal courts.
That, of course, is why the proponents of this rider framed it as they did. Congress cannot constitutionally bar federal judges from signing busing orders. But a majority of its members seem to believe they can cut down the number of opportunities the judges have to enter such orders by keeping the Justice Department out of the courts. The real thrust of this rider is to put the burdens of intiating, paying for and enforcing almost all school desegregation decrees back on private individuals who usually have neither the funds nor the expertise to cope with them. Approval of it, in that sense, will raise a direct threat to all those other areas of the law in which the Justice Department stands ready to help citizens vindicate their civil and constitutional rights.
The ultimate irony of this first legislative thrust by the lame duck Congress is that almost no one is advocating any longer the massive busing of students to achieve desegregation. Disillusionment about its usefulness as a solution to segregation has set in, and it is generally regarded as a remedy of last resort, one that trial judges have been told to use rarely and with great care.
While use of those same yellow buses to solve other school problems -- particularly declining enrollments and school closings -- in some districts is increasing, their actual, threatened or potential use in segregation cases is still a symbol many members of Congress feel the need to eliminate. This limitation on the Justice Department's operations will not accomplish that. The judges and the buses will still be there. All it will do is to send a false signal to the folks back home and to undermine the role of the Department of Justice as the enforcer of federal court orders and as the source of advice and information to both judges and litigants in difficult school situations.