Mr. ARMOR. Thank you.

Senator THURMOND. Senator Hatch has some questions he will submit for the record. We will not have you answer them now, but you can answer them for the record.

Mr. ARMOR. OK. Thank you very much, sir.

Senator THURMOND. We now have a panel to testify: Prof. Nathan Glazer, Mr. William Taylor, Prof. Lino Graglia, and Mr. Julius Chambers.

Starting on the left, please give us your name, your occupation, and where you are from.

Mr. GLAZER. I am Nathan Glazer, professor of education and sociology at Harvard University.

Mr. GRAGLIA. I am Lino Graglia, professor of constitutional law at the University of Texas Law School.

Mr. CHAMBERS. I am Julius Chambers, president of the NAACP Legal Defense Fund.

Mr. TAYLOR. I am William Taylor, adjunct professor of law at Catholic University Law School, and director of the Center for National Policy Review.

Senator THURMOND. I assume you gentlemen have statements you would like to make at this time. We will start on the left. The full statements will be made a part of the record following your oral presentations.

STATEMENT OF NATHAN GLAZER, PROFESSOR OF EDUCATION, HARVARD UNIVERSITY

Mr. GLAZER. My statement will be very brief. I will submit it for the record. I think most of the points I wanted to raise have already been very well presented by David Armor.

I want to make only one additional point. Mr. Armor talked primarily about the effectiveness of remedies. I agree with him completely. The remedy of mandatory assignment of children to schools on the basis of their race has been ineffective educationally, hardly effective in increasing integration, and has been the policy that has perhaps been more opposed by parents in this country, white, black, Hispanic, Asian, than any other school policy one can think of.

I want to refer, as I say, to only one additional point, not on the ineffectiveness of remedies, but the reason why these remedies which are so dramatically in effect have come down or are imposed by courts.

I think the problem is that the question of the explanation for school segregation in situations where there has not been any mandatory school segregation, or in which this ceased some time ago, has been improperly approached and dealt with by courts. The courts seem to take the position, at least in many cases, that the natural form of arrangement of ethnic and racial groups in American cities in the absence of State action, either of school authorities or housing authorities, would be an even distribution. They seem to expect, on the basis of evidence presented to them presumably, that in the absence of school action, in the absence of State action, there would be a situation in which you would have an even distribution of blacks, or of Hispanic Americans, or other groups that are sometimes the subject of this litigation in a city.

I think this is the most unreasonable of expectations. No groups are evenly distributed through cities or metropolitan districts. Groups are real. They have distinctive histories. They have different economic patterns. They have different tastes in housing. For all these reasons, we have always had concentrations of ethnic and racial groups in cities.

Admittedly, there is an additional factor in the case of blacks and other groups, a factor of discrimination, but this factor of discrimination in no sense explains the whole pattern, or even any major part of it.

The Supreme Court still takes the position that it is looking for de jure segregation, segregation by State actions, by law. The Court, and inferior courts, seem to me to accept very flawed evidence arguing that the distributions of black and white children, and children of other groups we find in public schools, are the result of State action.

I will not go into the details as to the reasons why I consider this evidence flawed, but I will refer to one kind of finding I think is terribly important. I will refer to a case in Boston. I think it can be demonstrated elsewhere.

In the Boston case, where the district judge found many cases of action by the school board that he said had led to concentrations of black children in the schools, a demographer by the name of Nathan Kantrowitz, in an article in the Annals, analyzed distribution of students in the schools and of people in residence through Boston.

He analyzed this before schoolbusing took place. The assumption you could work on is that if the school board had engaged in all these actions of segregation, the schools should have been more segregated than the people in Boston were. The fact is they were less segregated.

Most of the segregation in schools is a result of residential patterns. The residential patterns themselves are a result of economic differences, of taste, to some degree of discrimination, but even that discrimination is very often not State discrimination. It is discrimination by individuals who often simply exercise their right to move away and to make transitional areas largely black.

I will make one other further reference to, I think, the most important Supreme Court in this area, the one in the Dayton and Columbus case in which measures, that by any fair reading could have had only a minimal impact on the distribution of white and black students in Dayton and Columbus, were taken to be the cause of the distribution of students in Dayton and Columbus. On this basis, a mandatory busing scheme was imposed on the entire school district in both cases.

I think Judge Rehnquist's dissent in that decision is absolutely convincing that the distribution of schoolchildren in Dayton and Columbus was not the result of school actions, was not the result of State actions, and there was no constitutional requirement that an unpopular, ineffective, and undesired course of action be imposed. I know this committee has no legislation before it and has no proposed amendments before it. To refer again to Senator Biden's frustration over the long period of time he has spent on this matter and on the difficulty of Congress in expressing the desires of the

American people to be able to impose any restraint on the courts in this matter, referring to all that, the question is: Is there anything the Congress can do?

In 1977, I testified before a subcommittee then chaired by Senator Biden. Senator Roth was present. They had a piece of legislation which I still think makes good sense.

The piece of legislation, in effect, said that one could not impose a desegregation requirement that was required more than correcting for the effects of any school action in distributing schoolchildren by race.

It can be argued that this is a very difficult test to apply. It is not a difficult test to apply. If schoolchildren are not more segregated in the schools of a district than people are segregated in their residential patterns, then there is simply no overall effect of State action in increasing the segregation of schoolchildren.

There is a good deal more I could say. I subscribe to everything David Armor has said. I will not take further time of the committee, except to say I think that piece of legislation of 1977 is worth looking at. That proposed legislation, I think, without being a constitutional lawyer and without knowing to what extent courts will accept the power of Congress to define what is unconstitutional discrimination, it is still worth a try.

Thank you.

[The material follows:]

TESTIMONY ON SCHOOL BUSING.

Nathan Glazer

it.

"School busing," or the assignment of children to public schools

on the basis of race in order to spread black and white children evenly through the public schools, is perhaps the most unpopular, widely implemented, school policy in the United States. Great majorities of white parents oppose it, in various surveys half or more of black parents oppose it, and undoubtedly majorities of Asian and Hispanic parents oppose Further it is undoubtedly one factor leading to the rapid loss of population, black and white, in cities in which it has been implemented. Additionally, it adds, even if only marginally, to the cost of public education, and in its initial stages leads to the loss of large percentages of white children to private schools and to schools in jurisdictions without busing. Why, then, do we find it in existence in many cities, with substantial threats that it will be imposed in cities which do not yet

have it?

Three chief arguments are presented for it. By far the most important is that school busing is required under the Constitution in order to overcome the effects of unconstitutional segregation of black children. Clearly such an argument is best addressed by Constitutional lawyers, but there are aspects of it to which social scientists can contribute, and indeed have contributed. Since it is now at least a dozen years or more since desegregation as required by state law in the South directly affected school attendance by race, and many more years since segregation was practiced directly in the North and West, the question of the explanation of the prevailing patterns of attendance at public schools by race is an important one. The facts as to this distribution are not

in dispute: Almost everywhere in the absence of busing most black children attend schools that are almost entirely black, most white children attend schools that are almost exclusively white (though substantial proportions of black children are found in white majority

83-458 O 82 10

schools, and some white children are found in black majority schools). The Supreme Court requires evidence that this distribution is caused by public action in order to consider it, in whole or in part, state-imposed desegregation, de jure segregation. Thus, in the absence of laws requiring such segregation, it is necessary to conduct an investigation as to causes before busing can be required. The facts relied on by courts to find de jure segregation are the shifting of school zone boundaries, the siting of new schools, the closing of old schools, the overcrowding or undercrowding of schools, the provision of temporary classrooms to accommodate overcrowding, all in relation to racial changes in school-going populations. These demonstrations are defective in various ways as evidence of state-imposed

segregation:

(1) Many of the actions took place a long time ago, and the reasons

for them are no longer clear.

(2) Many took place at a time when there were no racial censuses of

school children.

(3) Some may have taken place with the active support of black

communities, who have always been interested in good schools and new schools,

and who often are not

hoods would be black schools.

concerned that new schools in black neighbor

(4) Causes are always multiple, and hard to disentangle.

(5) Most important, when the black population. of cities is rapidly

growing

-

as has been true since World War II

schools in growing black neighborhoods will become predominantly black schools, whether or not school zone boundaries are shifted, or large schools are built, or small schools, and whether or not they are planned to be placed in the middle of black neighborhoods or on their edges. With a rapidly growing black school population, and a neighborhood school policy, all schools in the path of growth will become black.

On occasion, the Supreme Court has suggested, to counter the argument that these school populations are the result of neighborhood concentrations, that the neighborhood concentrations are themselves caused in part by