Conversation 042-079

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I just wouldn't like to see you buy either of those two amendments, Lock, Stock and Barrel, at this point.

The North as well as the South.

Incidentally, did you know that a district judge in San Francisco

yesterday held that there would have to be racial balance in the schools on the strength of this new school case, on the strength of the recent Charlotte Mecklenburg and the other cases.

Well, he's wrong, isn't he?

Yeah, but he's carried away with it, you see, and he's going to impose busing and all the rest of it, and of course the people say they're going to appeal.

He didn't read the case.

Well, now, isn't it very clear that racial balance... Let me ask you a couple of...

I don't want to get into the interpreting of the case, but you know, a jerk like Semple, who's bright on this case, will go after it.

But the court does not require... First of all, it does say...

that there is no requirement of racial balance at all where de facto discrimination is concerned, is there not?

That's correct.

That's a strong...

Completely.

Right.

And second, in other words, it really gets down to this, where discrimination is a result of the action of people, of the individual decisions of people,

there it doesn't speak, the case does not speak.

But where the discrimination is a result of the action, a deliberate action of a government body,

then the case does speak.

Isn't that really what it gets down to?

That's exactly right.

And can there be the jury in the north then?

Well, there can be, but it's enormously hard to prove.

That's right.

Now, in this case, therefore, well, I won't get into that case.

I'll say that's a matter on the courts.

No, but you can say this.

You may get a question like, what is the federal government going to do?

And the important thing to understand is that really the effectuation of this decision now is legal.

largely in the hands of local school boards and district courts.

Yeah, in the South.

In the South.

And that is not something where the federal government is going to have to crank up a great big effort.

It is.

On a more or less local basis.

And a case-by-case.

Case-by-case, that's right.

And courts.

And we will cooperate, but not coerce.

That's right.

And we have a relatively minor role in the effectuation of these cases, but I think you don't need to say that.

That could inflame people.

You could say instead that this is a case-by-case competition.

That's right.

Right, right, right.

Effectuation.

Now, with regard to the sentences, but I'm going to say that the...

that the case, should I say that the case does not deal with de facto, well I can say that the case specifically says it does not deal with

with discrimination that is a result of the decisions of individuals.

Now, the way you'll probably get the question is the Supreme Court has rejected your philosophy or your position or something of that kind.

Oh, sure.

Yeah.

And they'll try and indicate that, you know, and so you'll have to couch your answer.

Well, don't you think I say, well, it did in some respects and it did not in other respects.

It's a mixed result.

And obviously, you were speaking in the absence of a defined rule of law.

Now, to the extent that this does define the law, obviously, as Chief Executive, it's your duty to enforce it.

And that you will cheerfully do.

Not cheerfully.

Well, my word.

That's right.

Speak for yourself, John.

All right.

I won't enforce, but we will comply.

Execute or whatever.

We'll comply.

Yeah.

Get the enforcement out of there.

But that actually the executive branch will be called on much less in this than the local school boards and the local district courts.

Yeah, yeah.

So even-handedness, coming back to Stennis, is...

should be equal treatment for the rest, and that the rule generally is if it's a government body that's been responsible, if it's the result of individual decisions, that's the other.

And that seems to be the clear intent of the court decisions.

And then I think I might give them a little

it's always show a little legal knowledge this is both it's interesting to note that the court follows the same reasoning in the housing cases as it applied in the school cases it really does doesn't it that's that's right it's the uh official action it's the card action official action well now there's a there would be a i'm not so sure that you could fairly say that because

De facto segregation is the product of a lot of individual decisions and a lot of individual actions by people who just move away.

I know, I know, but it's still not official action.

It's not, no.

A referendum arguably is.

What?

A referendum arguably is official action.

Well, then I say government action.

All right, yeah.

Action by a government body and action by an individual.

Yeah, yeah.

That's what it really gets down to.

You could analogize that way.

Action by a government body.

That's really what it is, by a government body and action by an individual.

I don't think I'd like to see you get into that.

I'm afraid that if you were to argue that a referendum is somehow or another analogous to de facto and that the Supreme Court was sort of announcing a de facto doctrine, I think it would be on shaky ground.

The Supreme Court has just stayed away from de facto.

They have just said, we're not getting into that.

Well, and they said that in the school case.

That's right.

And I don't think... Well, didn't they, but the clear signal was that they would hold that de facto was not...

I don't think we've had that signal yet.

All right.

I don't think so.

So you think this Los Angeles case is still open, then?

I think so.

I don't think that...

I really don't think that we can speculate at this point on de facto.

Action by...

Well, on the other hand, then how can I go back on my getting back to the Blackjack case?

I certainly have got to say that that, though, the court was saying that action by a government body is one thing, action by... By a referendum where the motives may be... where the motives are undefinable because they could have been a lot of other things besides, and the court will not presume that people had wrong motives in casting a vote in a referendum, unconstitutional motives.

Yeah.

Yeah, well, I want to stay out of a lot of it because I... Yeah, this is murky territory.

I can just say that it's goddamn confused and we're studying it.

We're doing our best to...

But the even-handedness, we're... the even-handedness and that... That should come through loud and clear.

Yeah, we want an even-handed policy both north and south.

Now, as far as specific amendments are concerned, I'm not going to comment upon them.

Is that what we say?

Yeah, I think so.

I think so, because...

They may obscure the...

They're mixed.

There are mixed elements.

Well, then we want an effect.

How do the Republicans vote on the Ribicoff Amendment, for or against it?

Elliott asked them to vote against, and I think most of them did.

Do we want to say we were against it?

Well, if you do, then you'll have to get into this whole business of why Elliot wrote the letter to Javits and the reasons that he used, which were that they were going to impair the passage of the billion and a half and so on and so forth.

I think you're biting off too big a bite if you get into the reasons.

Well, not the reasons, I'm sure, but what do we want to say?

Were you for or against the Rybakov Amendment?

Oh, you'd say to the extent that the Rybakov Amendment stood for even-handed application of the law in North and South, I'm for that principle.

In the legislative tactical situation, the administration had to ask the Senate to set it aside because it would have unduly delayed the passage of emergency school money badly needed in the South to bring about the finalization of the unitary school system.

So that it was simply a matter of timing rather than principle that forced us to urge our colleagues to vote against it.

But then what would you do in the future?

The issue is fairly framed as being for or against even-handed application of the law north and south.

I'm for even-handedness.

There were no hearings and the thing was just in a bad legislative posture.

And now they've got a new one, you know, a new Stennis Amendment.

Well, okay.

All right, fine.

All right, sir.

Thank you.