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March 7, 1964
On March 7, 1964, the Norfolk Journal and Guide told readers about a “sleeper” amendment in the civil rights legislation that was being debated by Congress. “White children in great cities such as New York and Chicago will get a ‘civil right’ of their own if the bill now awaiting Senate action is not amended,” the newspaper warned. “The proposed right is the right to attend their own neighborhood grammar schools” (click to view PDF). The Journal and Guide recognized that section 401, paragraph B defined desegregation in such a way that it protected so-called de facto segregation: “‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.” This amendment, enshrined in the Civil Rights Act of 1964, was designed to keep federal civil rights enforcement of school desegregation focused away from the North, and white politicians and parents in Boston, Chicago, New York, and elsewhere regularly pointed to the 1964 Civil Rights Act to justify the maintenance of white schools. It is notable that the Journal and Guide noted the importance of this "sleeper" amendment decades before scholars called attention to it.
When President John F. Kennedy sent civil rights legislation to Congress in the summer of 1963, the “Desegregation of Public Education” section called for the commissioner of education to, on request from local school boards, “render technical assistance in the preparation, adoption, and implementation of plans for desegregation of public schools or other plans designed to deal with problems arising from racial imbalance in public school systems.”92 The administration’s bill referenced “racial imbalance,” the phrase preferred by northerners to describe their own school segregation, eight times.93 When it reached Congress, House Judiciary Committee Chairman Emanuel Celler assigned the administration’s bill to Subcommittee No. 5, which he also chaired and which had a majority of northern Democrats who were likely to support strong civil rights legislation. Celler, a Democrat from Brooklyn, Ohio Republican William McCulloch, the ranking minority party member on the subcommittee, and Deputy Attorney General Nicholas Katzenbach played important roles in crafting a subcommittee bill that would have enough support from northern Democrats and moderate Republicans to overcome opposition in the House and Senate from southern Democrats and conservative Republicans. At McCulloch’s suggestion, the education section of the bill was amended to delete references to “racial imbalance,” thereby making the law applicable only to de jure school segregation in the South.94
When the subcommittee bill came to the House floor in February, Florida Republican William Cramer expressed concern that a recently decided case, Blocker v. Board of Education on Manhassett (1964), which found unconstitutional school segregation in Long Island, New York, could expand the scope of the bill. If the subcommittee had been able to consider this case, he argued, “I think . . . we would have taken another look at the bill and probably put something specific in it saying that it is not the intention of Congress to include racial imbalance or de facto segregation.”95 To remedy this, on February 6, 1964, Cramer introduced an amendment to section 401b so that the section’s existing definition of desegregation (“‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin”) was followed by a clarification: “‘Desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.”96 In introducing the amendment, Cramer made clear that it aimed to prevent “busing” for desegregation: “The purpose is to prevent any semblance of congressional acceptance or approval . . . [for] any balancing of school attendance by moving students across school district lines to level off percentages where one race outweighs another.”97 Celler accepted the amendment without discussion, and this wording was enshrined in the 1964 Civil Rights Act.
Southern senators, who already opposed civil rights legislation, were incensed by the blatant hypocrisy of the bill’s education section and the way the amendment so clearly catered to white northerners’ concerns. “I do not blame the two distinguished Senators from New York, for they desire to protect New York City, as well as Chicago, Detroit, and similar areas. But why should they attempt to penalize our part of the country?” Mississippi senator James Eastland asked. Referring to New York senators Jacob Javits and Kenneth Keating, Eastland continued, “In my opinion the two Senators from New York are, at heart, pretty good segregationists; but the conditions in their State are different from the conditions in ours.”98
While northern senators disagreed with their southern colleagues’ charges of hypocrisy, they agreed that the civil rights legislation was amended to prohibit “busing” for school desegregation. New Jersey senator Harrison Williams described how “segregationist propaganda” had created confusion among his constituents and had led many to write to him that “busing should be forbidden.” Williams received these letters, he said, “despite the fact that section 401(b) in title IV of H.R. 7152 specifically prohibits the busing of students across town, in order to achieve racial balance in the public schools. That provision clearly related to busing, and legislatively prohibits busing in order to achieve racial balance in the public schools.”99
These amendments and antibusing provisions were designed to keep federal civil rights enforcement of school desegregation focused away from the North, and white politicians and parents in Boston, Chicago, New York and elsewhere regularly pointed to the 1964 Civil Rights Act to justify the maintenance of white schools. In this way, the Civil Rights Act allowed school segregation to exist and expand in northern cities.
I first learned about this amendment from Matthew Lassiter’s chapter “De Jure/De Facto: The Long Shadow of a National Myth” in The Myth of Southern Exceptionalism, edited by Lassiter and Joseph Crespino (2009). This little known part of the Civil Rights Act is an important part of the story I tell in Why Busing Failed: Race, Media, and the National Resistance to School Desegregation (University of California Press, 2016). To learn more about the origins and importance of this “sleeper amendment” and the antibusing provisions in the Civil Rights Act, please visit the Why Busing Failed companion website.