United States. Congress. House. Committee on the J.

Effectiveness of mandatory busing in Cleveland : hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, September 18, 1995 online

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EFFECnVENESS OF MANDATORY BUSING IN
CLEVEiAND

Y 4. J 89/1:104/47

Effectiveness of Handatorg Busing i...

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OP THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS
FIRST SESSION



SEPTEMBER 18, 1995



Serial No. 47




MAY 1 4 1996







Printed for the use of the Committee on the Judiciary



U.S. GOVERf4MENT PRINTING OFFICE
23-423 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office. Washington, DC 20402

ISBN 0-16-052511-X



vJ ^ EFFECTIVENESS OF MANDATORY BUSING IN

CLEVELAND

Y 4. J 89/1:104/47

Effectiveness of llandatory Busing i...

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS
FIRST SESSION



SEPTEMBER 18, 1995



Serial No. 47




OEPasiTORv ''""
MAy U t996




■■■■■":tn



Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
23-423 CC WASHINGTON : 1996



For sale by the U.S. Government Printing OfBce

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-052511-X



COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman



CARLOS J. MOORHEAD. California
F. JAMES SENSENBRENNER, JR.,

Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, Nwth Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Vitginia
STEPHEN E. BUYER, Indiana
MARTIN R. HOKE, Ohio
SONNY BONO, Cahfomia
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia



JOHN CONYERS, JR., Michigan
PATRICIA SCHROEDER, Colorado
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN. California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
XAVIER BECERRA, Cahfomia
JOSE E. SERRANO, New York
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas



Alan F. Coffey, Jr., General Counsel/ Staff Director
Julian Epstein, Minority Staff Director



Subcommittee on the Constitution

CHARLES T. CANADY, Florida, Chairman



HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
MICHAEL PATRICK FLANAGAN, Illinois
F. JAMES SENSENBRENNER, JR.,

Wisconsin
MARTIN R. HOKE, Ohio
LAMAR S. SMITH, Texas
BOB GOODLATTE, Virginia



BARNEY FRANK, Massachusetts
MELVIN L. WATT, North Carolina
JOSE E. SERRANO, New York
JOHN CONYERS, JR., Michigan
PATRICIA SCHROEDER, Colorado



KatHRYN a. HazEEM, Chief Counsel

WiLUAM L. McGrath, Counsel

Keri D. Harrison, Assistant Counsel

John H. Ladd, Assistant Counsel

Robert Raben, Minority Counsel



(II)



CONTENTS



HEARING DATE



Page

September 18, 1995 1

OPENING STATEMENT

Canady, Hon. Charles T., a Representative in Congress from the State of

Florida, and diairman, Subconmiittee on the Constitution 1

WITNESSES

Bier, Thomas, Ph.D., director, housing policy research program, Cleveland

State University 19

Costanzo, Joe 91

Courey, Josephine 94

Dodaro, Gene 92

Erste, Louis, fellow, Citizens League Research Institute 22

Harper, EUzabeth 93

Haws, Joyce, communications director. National Association of Neighborhood

Schools 66

HiU,ArUne 95

Lumpkin, Lawrence A., president, Cleveland Board of Education 44

Massaro, David 96

McCain, Richard, plaintiff class representative, Reed v. Rhodes 57

McMullen, Daniel, court-appointed special master in Reed v. Rhodes 9

Mitchell, Genevieve, executive director, community services, Black Women's

Center 59

Mottl, Ron, a State representative in the Ohio State Legislature 7

Roach, Jennifer 93

Short, Lucille 94

Sopka, Don, councilman, Broadview Heights City Council 52

SyKora, James J 95

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Bier, Thomas, Ph.D., director, housing policy research program, Cleveland

State University: Prepared statement 21

Erste, Louis, fellow. Citizens League Research Institute: Prepared statement . 27
Haws, Joyce, communications director, National Association of Neighborhood

Schools: Prepared statement 69

Lumpkin, Lawrence A., president, Cleveland Board of Education: Prepared

statement 48

Mitchell, Genevieve, executive director, community services. Black Women's

Center Prepared statement 64



(III)



EFFECTIVENESS OF MANDATORY BUSING IN

CLEVELAND



MONDAY, SEPTEMBER 18, 1995

House of Representatives,
Subcommittee on the Constitution,

Committee on the Judiciary,

Cleveland, OH.

The subcommittee met, pursuant to notice, at 9:41 a.m., in the
main auditorium, Cleveland Board of Education, 1380 East Sixth
St., Cleveland, OH, Hon. Charles T. Canady (chairman of the sub-
committee) presiding.

Present: Representatives Charles T. Canady, Martin R. Hoke,
and Michael Patrick Flanagan.

Also present: William L. McGrath, counsel; Jacquelene McKee,
paralegal; and Robert Raben, minority counsel.

OPEMNG STATEMENT OF CHAIRMAN CANADY

Mr. Canady. The subcommittee will come to order.

This hearing is the first the subcommittee has held in this Con-
gress on the topic of school dese^egation and busing. Cleveland is
one of hundreds of American cities where the public school system
is under Federal court supervision designed to remedy prior seg-
regation in the system. We have come here to study the history and
the current status of Cleveland's experience in complying with the
Federal court's orders.

Of course, it was the Supreme Court's landmark decision in
Brown v. Board of Education that launched the enterprise of deseg-
regating school districts, once divided along racial grounds. That
decision began one of the most ambitious undertakings in social
policy this country has ever seen.

As the residents of Cleveland know well, we are still, some four
decades later, very much involved in that effort. In Brown, the
Court held that legally enforced racial segregation of students in
public schools harms the minority students in a manner that of-
fends the equal protection clause of the 14th amendment.

In Brown 2, decided the year following Brown, the Court began
to provide guidance to the lower Federal courts as to how this con-
stitutional harm was to be remedied. The first step in the remedy
was to remove legal barriers to integration. But it also required
much more than simply stopping enforcement of prior segregation.
The Court also held, consistent with general remedial principles,
that the previously segregated school districts had a duty to make
whole the victims of that segregation. That is, the districts had a
legal obligation to restore the victims to the position they would

(1)



have held but for the segregation. This task made the desegrega-
tion enterprise vastly more complex.

To stop discriminating is one thing; to undo the effects of prior
discrimination is quite another. Do not misunderstand me, it was
fully appropriate for the courts to require school districts to make
up for the injuries their discriminatory conduct created. I have ab-
solutely no qualms with forcing constitutional violators to, as the
Court put it in the 1968 Green case, "take whatever steps might
be necessary to convert to a unitary system in which racial dis-
crimination would be eliminated root and branch." It is this part
of the desegregation task that has caused these cases to go on for
decades at a time.

In Green, the Court said that there are six areas in which schools
must be free from discrimination before court supervision could
end: student assignment, faculty, staff, transportation, extra-
curricular activities and facilities. These areas comprehend most of
what public school districts do and so these court cases involved
judges in the most significant functions our school board officials
are elected to perform. The result has effectively been to put Fed-
eral courts in the middle of running many of our Nation's public
school systems. That judicial intervention was, of course, made in
response to real injustices, but we must recognize, as the court has
repeatedly held, that this court supervision is at odds with the fact
that, and I quote, "No single tradition in public education is more
deeply rooted than local control over the operation of schools." No
matter how warranted it may be. Federal court supervision of a
public school district interferes with the traditional power of elect-
ed school board officials to govern the district as they and their
constituents deem fit.

After decades of establishing and refining the nature of a once
segregated school district's remedial obligations, the Court in the
past several years has begun to define when and how court super-
vision of these districts should be terminated. In the 1991 Okla-
homa City case, the Court reminded the lower court that Federal
judicial supervision of local school systems was intended as a tem-
porary measure. The following year, in a case involving De Kalb
County, GA, the Court reiterated that the ultimate objective of de-
segregation cases is to return school districts to the control of local
authorities. The Court elaborated on this duty, and I quote, "Re-
turning schools to the control of local authorities at the earliest
practicable date is essential to restore their true accountability in
our governmental system. When the school district and the State
make decisions in the absence of judicial supervision, they can be
held accountable to the citizenry, to the political process and the
courts in the ordinary course."

In just this past term, the Court ruled that the lower court mon-
itoring the Kansas City school district had overstepped the bound-
aries and extended court supervision beyond the time necessary to
remedy the constitutional violation. The Supreme Court has begun,
in other words, to move from defining the nature of the lower
court's remedial duties to delimiting the scope of its continued su-
pervision. This is a much- welcome and indeed a long overdue devel-
opment.



In the past 22 years, the public school district in Cleveland has
operated under close court supervision. We are here today to get
a better understanding of the impact of the Court's involvement in
the Cleveland school system, its impact on the lives of the students
and the families of Cleveland.

I want to thank all of the witnesses who will be participating
today. We are very pleased at the response of the witnesses we
have requested to participate in the hearing.

I also want to particularly thank Mr. Hoke for his assistance in
preparing for this hearing and helping us to obtain witnesses. I
know that this is an issue of great concern to Mr. Hoke, I have
been discussing the possibility of legislative action on this and I
know that Mr. Hoke has some ideas about potential legislative ap-
proaches to this issue. I think that this is an appropriate issue for
the Congress to be looking into and I look forward to continuing
to work with Mr. Hoke on this very important issue.

And I would now like to recognize Mr. Hoke.

Mr. Hoke. Thank you very much, Mr. Chairman, and let me
begin by expressing my gratitude and admiration to you for holding
this hearing on Cleveland's experience with federally mandated
and monitored school desegregation. This Subcommittee on the
Constitution, by its very nature, is involved in issues about which
Americans feel very deeply and hold passionate views, and I great-
ly admire the courage that you have shown in calling this hearing
and in holding other hearings about controversial constitutional
questions, and particularly your commitment to and success at
holding these hearings in a fair, thorough and thoughtful manner —
persuasive evidence that their purpose is to shed light and not to
create heat.

I also want to extend my appreciation to Cleveland School Super-
intendent Richard Boyd, for graciously allowing us to use this facil-
ity for these hearings.

In my opening remarks, I want to take the opportunity to make
clear why I have asked for these hearings to be conducted, what
their purpose is and what we hope to learn and to gain from them.
But because there has been a great deal of speculation and pre-
sumption regarding the hearings, I would like to say first what
they will not be. First and foremost, these hearings will not be used
to rewrite history. Specifically, it should be noted that the Cleve-
land School Board had a sad history of deliberately and consciously
designing and maintaining segregated schools. The use of intact
busing — which was the busing of an entire class of black students
and their teacher from an overcrowded predominantly black school
to an underutilized white school where they were to be taught as
a single separate and isolated unit — as well as certain racially mo-
tivated construction patterns more than met the evidentiary stand-
ards required for a finding of de jure segregation. So that will not
be a subiect of discussion during these hearings.

It is the remedy not the problem that we are interested in here.
These hearings are also not about creating a high profile public
forum to be used for the purpose of opening old wounds, playing
the blame game or further dividing a community in which there is
already far too much distrust.



What these hearings are emphatically intended to achieve is the
initiation of a broad congressional factfinding investigation into the
Federal judiciary's mandating and supervision of school desegrega-
tion over the past four decades. This inquiry will be undertaken
from two distinct perspectives.

First of all, the perspective of the impact and effectiveness of spe-
cific court-ordered remedies on schools and on the larger commu-
nity. That is the primary purpose for our hearing today in Cleve-
land. For that inquiry to be effective, it must include an examina-
tion of the following questions: What has the impact of the desegre-
fation order been on the schools, on the city, on students? Wnat
as the effect of student assignment for the purpose of achieving
racial balance, in other words, court ordered busing, been on the
students, the schools and the community? What do the numbers
tell us with respect to test scores, gfraduation rates, truancy rates,
population movements, et cetera? What unintended consequences,
if any, have resulted from the desegregation order? And finally,
how do the parents, the teachers, and the board members, feel
about the order?

The overriding purpose today is to learn from Cleveland's experi-
ence and apply these lessons in the future, both here and in the
rest of the country.

The other broad area of inquiry that will be explored at a future
hearing in Washington is the unprecedented authority which has
been assumed by the Federal courts to shape remedies in equity
with respect to school desegp^egation. This authority is derived from
article III, sections 1 auid 2 of the Constitution, which extend the
judicial power of the United States to all cases in law and equity
arising under the Constitution. The Supreme Court's willingness to
allow the extraordinary expsmsion of the article III power to the
district courts with respect to desegregation cases was clearly moti-
vated by both the worthy desire to eradicate segregation, as well
as by the obvious failure of local. State and the Federal legfislature
to themselves acknowledge and eradicate the wrong. In fact, it was
the state that often caused the wrong. The result of which has been
to turn our fundamental understanding of separation of powers on
its head and has brought Federal courts into the day-to-day man-
agement of local institutions and the implementation of local poli-
cies. I am certain that the Framers never envisioned such a role
for the Federal judiciary. That these are fimctions beyond the ad-
ministrative competence of the Federal judiciary ought to be obvi-
ous and a matter of common sense. However, the more significant
question for this subcommittee is whether these are functions that
lie beyond the legal competence of the Federal courts pursuant to
article III. The thorough, tough and exhaustive examination of that
issue is of profound significance to this committee, not onlv because
the Federal courts have taken over the administration of local pub-
lic school systems, but because they have also taken over the day-
to-day management of some prisons as well as certain executive
branch agencies. This question goes to the most basic and fun-
damental issue of separation of powers and how our Government
was meant to function. And it begs to know which branch of the
Government is best equipped and most competent to discern and
define policy and implement the programs that flow therefrom.



Typically, these are matters that have been balanced between
the legfislative and executive branches; yet, with respect to school
desegregation, the Federal courts have not only been responsible
for me legal Ending of a constitutionally violative pattern of racial
segregation, they have also vastly expanded their inherent equi-
table powers to seize control of the schools — stripping State and
local governments of one of their most important governmental re-
sponsibilities.

The importance of the success of our public schools cannot be
overestimated and overstated. Sitting in the balance is the edu-
cation of the next generation of American citizens, and in the most
real and profound sense, the future of this Nation. If we cannot do
a better job of making the situation better — and bv that I mean
black/white relations; if we cannot do a better job of providing
every child in the city of Cleveland a better education — and by that
I mean a graduation rate that is substantially higher than 49 per-
cent, and a daily truancy rate that is substantially lower than 25
percent; if we cannot do a better job of figuring out how to reclaim
and renew and restore our largest and oldest cities — and by that
I mean stopping the exodus of the middle class, fixing the
brownfield/greenfield problem so that job creating industries will
want to locate in our cities, and restoring peace and security to our
neighborhoods, then we are condemning our children in these
cities.

Remember, these children are the ones who are most at risk in
our society. Seventy percent of all of the children in the Cleveland
public schools are at or below the poverty level. They are the ones
who, more than anyone else in our society, need the high quality
education that will allow them to improve their lot in life. We are
condemning them to an ever-intensifying polarization and strati-
fication of haves and have-nots, which ultimately neither this Na-
tion nor any nation can endure. In the final analysis, the spiritual
corrosion which results from that kind of institutionalized hopeless-
ness and despair eats away at the moral fabric of our entire soci-
ety.

One final thought. Some have suggested that this hearing should
never have been held, not here, not now, not ever, that the issue
of court-ordered busin^^ is too explosive, and besides it has already
been resolved. Yet, this is an issue that the editorial page of the
Cleveland Plain Dealer has regularly brought up, raising most of
the same concerns we will hear today and actually calling for an
end to court ordered busing earlier this year. Many African-Amer-
ican community leaders have also spoken out against the desegre-
p^ation order, calling it a failed experiment albeit one based on good
intentions.

Could someone please explain to me why it is OK for the daily

§aper and other community leaders to question the wisdom of man-
atory busing, but when an elected Member of Congress, who
serves on a committee which can actually do something about it
announces hearings on the issue, his motives are questioned in the
most vulgar way. I think it is a sad commentary on modem Amer-
ican politics when so many of those in positions of leadership use
their power to stifle debate instead of to encourage it. I have great
confidence in the good faith and the ability of Clevelanders to sift



through the testimony we will hear today and draw conclusions in
a fair and honest manner. We need more conversations like this,
not less, because the more we talk and the more we listen, the
more we discover how fundamentally alike we are and that what
we really care about is seeing that our children receive the very
best education that we can possibly give them. And when we un-
derstand how that unites us, then the distrust and the fear begin
to melt away like the ice on Lake Erie in the spring.

Ultimately, the challenge that faces this subcommittee and any
group of responsible men and women of good will who care about
education is to do the extraordinarily hard work of devising solu-
tions which guarantee equality of public educational opportunities,
to eliminate State created segregation without at the same time
causing a host of unintended negative consequences, and to encour-
age a colorblindness, which through moral authority will result in
greater racial integration and harmony — the goal for which we are
all striving.

My hope is that this hearing will bring us one step closer to that
goal. Thank you, Mr. Chairman.

Mr. Canady. Thank you, Mr. Hoke.

I also want to thank the gentleman from Illinois, Mr. Flanagan,
for taking time out of his schedule to be with us here today for this
hearing of the subcommittee. Mr. Flanagan.

Mr. Flanagan. Thank you, Mr. Chairman. I will not take the en-
tire 5 minutes.

I would like to say that I am very happy to be here. This is a
very important issue. Chicago, where I am from, is going through
its final pass at desegregation which did not take the form of bus-
ing, but which took the form of scattered site housing under a con-
sent decree involving the court system and local authorities.

We are here today in our proper role in Congress. The Cleveland
Plain Dealer, reading its editorial that Mr. Hoke referred to, said
the most incredible thing. It said this is an important issue, this
is something we ought to fix, but we really should not talk about
it, we really should not come here and have hearings. I could not
believe it when I read it, it is unbelievable. All I could think of as
I read it was that pure partisan politics was at work. I was ap-
palled and embarrassed for them.

I will tell you that this is our proper role. We are here to do this,
this is our job. As Mr. Canady discussed and as Mr. Hoke touched
upon, the article III powers of the judiciary have so expanded in
their own right because of the lack of congressional action because
the elected representatives in Washington refused to address a
very hard issue with hearings, with action, at least with some out
loud discussion, if not a law. Consequently, the courts had to step
in and solve really egregious problems at local levels.

Again, we are faced with it today. You have a panel of three Re-
publicans. Where is the former majority? The comments that I read
from them in the paper were that they did not want to come here
and help Martin Hoke. I do not know how we are helping Martin
Hoke by being here, I think we have to address this issue. This is
so important and we have got to spend the time and the energy to
do it.



The elected powers have to refocus on their constitutional duties,
get out of businesses that they are in now, businesses they should
not be in, businesses that States and local governments have the
powers to do, and get back into the business of protecting the Con-
stitution, executing its goals, executing its motives, and that is the
proper role of the Federal legislature. The Federal judiciary has
long been relegated to having to perform that function for us be-
cause we have lacked the political spine to do it. Well, we are here
today to do that, and if the Cleveland Plain Dealer does not want
us here, I am sonv for that, but this is where we belong, this is
the right thing to do and I am extremely pleased to be part of this.

Mr. Canady. Thank you, Mr. Flanagan.

We are going to soon go to our first panel and then to the subse-
quent panels of witnesses. But before we do that, I would like to
recognize State Representative Ron Mottl. Representative Mottl
had come to the hearing today, hoping to make comments during
the open mic session which will follow our panels of witnesses, but
his schedule requires him to move on. He has requested that he go


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Online LibraryUnited States. Congress. House. Committee on the JEffectiveness of mandatory busing in Cleveland : hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, September 18, 1995 → online text (page 1 of 12)