Congressional Power to Eliminate Busing in School Desegregation Cases 31 Arkansas Law Review 1977-1978

31 Ark. L. Rev. 231 (1977-1978)
Congressional Power to Eliminate Busing in School Desegregation Cases

handle is hein.journals/arklr31 and id is 243 raw text is: Congressional Power To Eliminate Busing
In School Desegregation Cases
Sieve C. Vaughn*
Few issues have had such a pervasive impact upon the shap-
ing of the very foundations of our system of government as has
that of racial discrimination. Certainly the Civil War and the
constitutional amendments it produced, together with their inter-
pretation and implementation by Congress and the judiciary, ef-
fected a serious restructuring of traditional notions of federalism.
The basic concept of the states as the protectors of civil rights,
central to the scheme envisioned by the Founding Fathers, was
gone with the wind, replaced by a beneficent and all-powerful
federal government. And even at this federal level, the issue
wrought alterations in traditional views of separation of powers,
with the Supreme Court providing the most responsive forum
for basic political and social change.
The landmark decision of the Supreme Court in Brown v.
Board of Education' is exemplary of both of these elements of
change which accompanied the resolution of the problems of
racial discrimination. The power to order all school authorities
in the states to desegregate their public schools with all delib-
erate speed made starkly manifest the sovereignty of the federal
government in the realm of civil rights.2 Equally significant was
* J.D. Columbia Law School; Assistant General Counsel to the
Secretary of the Army; Associate, Harkey, Walmsley and Belew, Bates-
ville, Arkansas.
1. 347 U.S. 483 (1954), 349 U.S. 294 (1955).
2. The initial reaction to the Court's decision was generally one
of resigned acceptance. See Thompson and Pollitt, Congressional Con-
trol of Judicial Remedies: President Nixon's Proposed Moratorium on
Busing Orders, 50 N.C.L. REV. 809, 814 (1972). Governor Cherry an-
nounced that Arkansas will obey the law-It always has. Id. at n.34.
Hostility and resistance developed, however, leading to violent confron-
tations in many areas. Notorious among such events in Arkansas oc-
curred when Governor Faubus placed a Little Rock high school off lim-
its to black students, causing President Eisenhower to dispatch federal
troops to enforce a federal court desegregation order. Cooper v. Aaron,
358 U.S. 1 (1958). The Supreme Court refused to allow such chaos,
bedlam, and turmoil to justify a postponement of desegregation, stating
that the constitutional rights of children not to be discriminated against
in school admission on grounds of race or color ... can neither be nulli-
fied openly and directly by state legislators or state executive or judi-

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