Nation: Where the Law Stands Today

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AMID the furor over the Stennis and Whitten amendments, the forced resignation of HEW Civil Rights Chief Leon Panetta and Senator Abraham Ribicoff's blistering attack on Northern hypocrisy, the nature and precise scope of existing U.S. law on race and the schools have largely been obscured. At issue are two sets of vital distinctions: the difference between integration and desegregation, and that between de jure, or governmentally imposed, and de facto, or accidental residential segregation.

The foundation of the law was laid in 1954 when the U.S. Supreme Court handed down its landmark decision in Brown v. Board of Education of Topeka, Kansas. In it, the court held that officially segregated schools were inherently unequal and therefore unconstitutional. It is often overlooked that the court did not order integration, the conscious mixing of the races in schools. Its ruling was negative: that legally sanctioned, or de jure segregation, which then prevailed throughout the South, is unlawful. All the court's subsequent rulings in the 16 years since have consistently followed this precept of "againstness" rather than "forness." Thus in 1955 the Supreme Court ordered the Southern and Border states to proceed "with all deliberate speed" to eliminate dual school systems. In 1966 the Fifth Circuit Court of Appeals allowed "freedom of choice" plans, but only as a means toward ending segregated school systems. Two years later, the Supreme Court realized that such plans were delaying rather than hastening desegregation, and ordered Southern school districts to come up with more effective methods. And in 1969 it ran out of patience entirely. In its October decision in Alexander v. Holmes, it held that 15 years was long enough for school systems to accept the law of the land, and ordered the immediate desegregation of schools throughout the region.

While making clear what it did not want, the court has been far less enlightening on what it does want. Though it has indicated its dissatisfaction with the "tokenism" that places a few blacks in a previously white school, it has not attempted to lay down a formula for acceptable desegregation. Lower courts have also been vague, and seemingly contradictory rulings have been issued by the Fifth Circuit Court. One holds that where segregation is the result of past patterns of residential discrimination, the schools must go beyond mere rezoning if that alone fails to achieve a better balancing of the races; the other holds that redistricting, if fairly done and enforced, is sufficient. Nor has the Supreme Court ruled on the legality of busing, which some argue is forbidden under the 1964 Civil Rights Act.