Busing Report Card

As many public schools reopened last week, parents and politicians alike seemed to be more concerned about the buses outside than the classrooms within. Last June Congress declared that no new court-ordered busing could proceed until the exhaustion of all appeals, if busing was solely "for the purpose of achieving a balance among students with respect to race." Faced with that ukase, federal judges have done the only thing they thought proper. By and large, they have managed to bypass the order. As a result, though the increase is far less than last year, total busing this fall will be up.

Justice William Rehnquist, generally considered the most conservative member of the Supreme Court, has refused to stay busing orders in Nashville and Oklahoma City. His fellow Nixon appointee, Justice Lewis F. Powell Jr., did the same in a case from Augusta, Ga. Powell concluded that Augusta's busing was intended to end unlawful segregation, but did not necessarily seek to "achieve racial balance." Congress's injunction, he said, was specifically limited to racial-balance orders. A lower federal judge, Frank Wilson, did stay his own busing order in Chattanooga, Tenn., because he thought that Congress had meant the law to apply to all integration busing. But Wilson's action is the rare exception. Most judges have done as Rehnquist and Powell did.

Stalled. Nor are the judges being highhanded. The new law has been invoked by busing foes to block orders that courts have determined are constitutionally required. Attorney James M. Nabrit of the N.A.A.C.P. Legal Defense Fund observes that "it's conventional for a judge faced with a statute of doubtful constitutionality to interpret it in a way that avoids the problem. And that's what has been happening here."

The battle is by no means over, of course. Last week when Congress reconvened, it began considering new antibusing measures, including a proposed constitutional amendment. The Supreme Court last year unanimously approved busing as one tool to end segregation. This October, in a busing case from Denver, it will consider whether the informal--or so-called de facto --school segregation common outside the South is as unconstitutional as the de jure segregation explicitly established in Southern states by law. The stalled rulings in the much publicized cases of Detroit and Richmond, involving busing across county lines between city and suburb, are also now being appealed. And it is likely that there will be a request to review a ruling last month that a judge can order busing only after trying "every other possible remedy."

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