Mr. WARNER. There could have been. I would have to talk to Mr. Hinze on that. He was left as program officer to make those comments. Mr. Howe. Mr. Chairman, we would be happy to return at some point that is convenient with you.

Mr. FOUNTAIN. I was just trying to find out from Mr. Naughton if we had anything significant left to ask questions about. He has quite a table full of material up here.

Mr. NAUGHTON. I think there are two or three significant points left, but my notes on them are buried under these documents. I might ask, Commissioner, are you still officially in charge of enforcement of title VI of the Civil Rights Act of 1964?

in

Mr. Howe. Yes. That is, the legal change has not been made. That is process, but the wheels take a while to turn. It was announced in June, but the arrangements to change the Executive order and make all of the detailed shuffles that are necessary are still in process. I don't believe it has been finally buttoned up. I am not a hundred percent sure. But I signed off on some things yesterday that made me feel it was still operating in the usual way.

Mr. FOUNTAIN. They do not involve my State, do they?

Mr. Howe. Not to my recollection, sir.

Mr. NAUGHTON. Of course the Executive order has to be signed by the President. Some of the questions raised about certain operations under tile VI related to the fact that the President has never approved your so-called guidelines.

Mr. Howe. I want to be clear; he hasn't disapproved them either. Mr. NAUGHTON. Has he been asked to approve or disapprove them while he is writing this Executive order, which might clarify the situation?

Mr. Howe. I don't know about the process under the Executive order, because that is in the Secretary's office, but we have never asked the President to approve the guidelines, feeling the Presidential approval of the regulations was the significant matter.

Mr. NAUGHTON. At an earlier hearing, Mr. Hundemer, we raised the question of the application of the Executive order relating to religious discrimination and other types of discrimination in employment under Government contracts. And I think it was your indication at that time that if such discrimination was being engaged in, under a subcontract for the schools, that it would not be appropriate to sign the contract with the Kettering Foundation for the Hawaiian Seminars. However, you did wind up signing it. You are, I am sure, familiar with the decision of the Hawaiian Circuit Court in 1965 in which it was concluded that the Kamehameha School, because of its policy of hiring only Protestants as teachers, was not in compliance with Hawaiian laws?

Mr. HUNDEMER. I didn't read that decision; no, sir. I do know about the situation. It was brought to my attention by the attorneys. But before I signed the document, I got a reading from our General Counsel and their statement is:

The proposed letter contract would cover the agreement of the cosponsorship of the three national seminars in innovation held July 2-23, 1967, at the Kamehameha School in Hawaii. The proposed letter agreement is without legal objection and when accepted by yourself as authorized contracting officer will constitute a valid contract between IDEA and the Office of Education.

Based on this I signed the document.

Mr. NAUGHTON. On what basis did you conclude you were justified, since the court apparently had concluded that religious discrimination existed?

Mr. HUNDEMER. I would have to discuss this with the General Counsel.

Mr. NAUGHTON. This was 2 days before the conference was to start. If they had decided you couldn't sign it, there might have been problems.

Mr. HUNDEMER. No conference, I assume.

Mr. NAUGHTON. Could you get for us the rationale on which approval was given?

Mr. HUNDEMER. All right. I will obtain a statement from General Counsel.

Mr. NAUGHTON. My understanding was that your General Counsel concluded that while the Executive order applies to all Government contracts over $10,000 and all subcontracts under such contracts, this was kind of a unique arrangement, and even though it involved $161,000 in Federal grant funds going to the Kettering Foundation, it was not actually a contract over $10,000, and therefore, the Executive order did not apply to the subcontract, even though the subcontract was around $80,000 or $90,000?

Mr. HUNDEMER. I will get a decision from them.

Mr. NAUGHTON. Is that about right?

Mr. HUNDEMER. I don't have any idea. I will take this up with Counsel and get you their ruling.

(The following statement was subsequently supplied by the Office of General Counsel, Department of Health, Education, and Welfare :) The Institute for Development of Educational Activities (IDEA) arranged for the National Seminars on Innovation to be held at the Kamehameha Schools. Before the commencement of the conference, the Office of Education was informed that it was the policy of the Kamehameha Schools to hire only Protestant teachers. The role of the Kamehameha Schools with respect to the conference was, however, limited to providing the facilities to be used for the conference. The understanding reached between the Office of Education and IDEA did not call for or contemplate the participation of the teaching staff of the Kamehameha Schools in the conference proceedings. The agenda for the conference did not list any teacher of the Kamehameha Schools on the conference program. The speakers were selected by the Office of Education and IDEA.

There was no indication in the preconference discussions between the Office of Education and IDEA that there would be any discrimination in the selection of the participants, speakers, or anyone else in connection with the conduct of the conference, and to the best of our knowledge there was no such discrimination. Under these circumstances, the Office of General Counsel advised the Office of Education that even if the Kamehameha Schools had a policy of hiring only Protestant teachers, there would be no legal impediment to the participation of the Office of Education in the conference.

In reaching this conclusion, we were not unmindful of the fact that the Executive Order 11246 prohibits discrimination in employment under Government contracts and subcontracts for supplies or service. However, the agreement between the Office of Education and IDEA was not, in our judgment, a contract for the procurement of services within the contemplation of the Executive order. In essence, the agreement merely reduced to writing, in order to avoid any misunderstanding, the role each of the cosponsors, the Office of Education, and IDEA, would play in connection with the conference. We did not regard the agreement as one for the purchase of services by the Office of Education. The Office of General Counsel was of the view, therefore, that the agreement was not a contract for services of over $10,000 (or in any amount) within the contemplation of Executive Order 11246 and the regulations issued thereunder, 41 CFR, chapter 60.

(SUBCOMMITTEE NOTE.-Dr. John E. Helfrich, director of instruction, Kamehameha Schools, was listed as a member of the program planning committee for the conference and his name appears on the program on four different dates-July 5, 12, 19, and 21. Dr. Helfrich is further identified as receiving $650 in honoraria and $496.15 in expenses from conference funds. Dr. James W. Bushong, president, Kamehameha Schools, is also listed on the conference program on Wednesday, July 5.)

Mr. NAUGHTON. Commissioner, have you gone into the backgroundis it true that the Office of Education had a complaint with respect to the Kamehameha Schools insofar as their racial policies are concerned, in view of their policy of admitting only students who have some portion of Hawaiian blood?

Mr. HowE. The only complaint I know of came from you. I say this, you know, not on the basis of having a firsthand complaint to me, but I heard that you had inquired of my staff about this matter.

Mr. NAUGHTON. I am glad you characterized that as an inquiry rather than a complaint because this school has not had a hearing, and it would be unfair to state they were in violation of anything. Mr. Howe. When you said complaint, I thought you meant an inquiry here in Washington. The school has submitted a form 441—at least that is what the correspondence I have shows-and the civil rights group in our office, now in the Secretary's office, is in correspondence with the schools, to see whether there are any issues involved here, exploring this problem about the possibility of there being a legitimate issue related to civil rights. But there has been no formal resolution of that and they are still back and forth with correspondence about the matter.

Mr. NAUGHTON. I did give some information, I wouldn't want it to be regarded as a complaint. But would you check the files and ascertain whether it is not true that the Office of Education, about 2 years ago, received a complaint about the school's policies, and that the matter has been more or less pending with a good deal of correspondence on it ever since.

Mr. Howe. We will be glad to check the files. (The information referred to follows:)

The Office of Education subsequently submitted a copy of a memorandum from Derrick A. Bell, Jr., Deputy Director of the Health, Education, and Welfare Office of Civil Rights, which stated that "Commissioner Howe's statement regarding the Kamehameha schools on page 382-384 of the hearing record [pp. 168-170 of the printed hearing] is accurate. This office has never received a complaint against the Kamehameha schools. ***

However, documents obtained by the subcommittee during its investigation disclosed the following:

A resident of Hawaii wrote to the U.S. Attorney General on July 3, 1965. concerning admission policies of Kamehameha schools. The letter included a copy of an application form for admission to the schools and made the following comment:

"Please note that eligibility depends on race. The late Mrs. Bishop endowed the school 'for the children of Hawaii.' However, the trustees have always chosen to interpret this as meaning Hawaiian or part-Hawaiian children only. Obviously a pure Negro child would never be considered eligible.

"A group of us here in Honolulu are wondering if this discrimination isn't a violation of the Civil Rights Act of 1964. ***"

The same resident of Hawaii sent a further letter to the Attorney General on May 3, 1966, which stated:

"Last year I called your attention to the existing situation at Kam schools here in Hawaii. * * *

"A group of us here in Honolulu are tired of seeing Federal funds being used to support an admittedly segregated school such as Kam. Enclosed please find clippings relative to the affair. We are looking forward to your immediate answer.

On May 26, 1966, copies of the two letters and enclosures were sent by the Justice Department to the Office of Education. An accompanying letter addressed to Commissioner Howe by John Doar, Assistant Attorney General, Civil Rights Division, stated that "I have referred this matter for your consideration as it appears that this matter may fall within the provisions of title VI of the Civil Rights Act of 1964."

A date stamp indicates that the Justice Department letter was received by the Office of the Commissioner of Education on May 27, 1966.

On June 17, 1966, the Office of Education advised the Department of Justice that "We are looking into the allegations of discrimination and will make a study of the situation described."

A letter requesting additional information was addressed to the complainant on July 14, 1966, by David S. Seeley, Assistant Commissioner, equal educational opportunities program, Office of Education. After additional material was submitted on July 28, 1966, a further letter was sent to the complainant on August 31, 1966, by Theron A. Johnson, Special Assistant to the Assistant Commissioner, equal educational opportunities program. The August 31 letter stated:

"In order to determine whether or not the Department of Health, Education, and Welfare has jurisdiction in cases of alleged discrimination, it must first determine that the program or activity (at the Kamehameha School) is receiving Federal financial assistance administered by this Department. After reviewing your complaint and our files, we are unable to find any financial assistance being extended by this Department. Accordingly, we have concluded that the U.S. Office of Education has no jurisdiction in this matter.

"Since the ROTC program at the Kamehameha School is administered by the Department of Defense, any allegation of discrimination must be determined by that organization after it determines whether or not it has an interest in the matter. The same must be said for the school lunch program which is administered by the Department of Agriculture.

"We regret that we must close our file in this matter, however, the mandate of the law is clear as it pertains to this Department."

The subcommittee's investigation also disclosed that another resident of Hawaii wrote to the Office of Education on June 25, 1966, to complain about alleged racial discrimination at Kamehameha schools.

Mr. NAUGHTON. Were you aware that back in November 1966 the General Services Administration concluded that the school's policy was not in compliance with title VI?

Mr. Howe. No; I wasn't aware of that.

Mr. NAUGHTON. I want to emphasize that I don't regard that as binding, since the school has not had a hearing.

Mr. FOUNTAIN. I think each department is supposed to make that decision for itself under title VI.

Mr. Howe. As I understand it, the school had an acceptable 441 in being and we operated under that. We were actually, subsequent to the meeting that was held in the school this past summer, engaging in further renewed exchange about whether or not there is a problem there. It is a rather complicated situation. It is not the usual situation at all. And it makes it really a new matter for us in many ways, because here is a school which was not set up to deny privileges to a minority group, but really to give privileges to a minority group which had been discriminated against. And this is a little bit different wrinkle, related to title VI, than we usually confront. So we are trying to make

sense out of it, and figure out what the legal position and what the commonsense position is in relation to it. But there is no result from these negotiations at the present time, and I guess the legal situation is that the school's declaration that it makes on the form 441 is in being until some formal process changes that.

Mr. NAUGHTON. It has been pending though for about 2 years down there. That was my understanding, and we have the correspondence on it, I believe. I think

Mr. Howe. Yes. It is an unusual situation.

Mr. NAUGHTON. I think someone from United Press who was previously interested asked under the new Government information law for an opportunity to examine this. As I recall, he was turned down on that, so therefore, he was unable to ascertain these facts.

it.

Mr. Howe. I'm sure he will try again now that you have mentioned

Mr. FOUNTAIN. I have a lot of questions I would like to ask on this, but I couldn't ask them within the time we can stay here. I'm sure all of us are hungry.

Mr. Howe. Mr. Chairman, I would be happy to respond in writing to questions of particular interest to you if this would be helpful. Mr. FOUNTAIN. All right. I'm sure there are some other questions that will come to our mind in addition to some we already have. But I don't think it is appropriate to go any further today. Some of us have engagements this afternoon too.

Any other questions?

Mrs. DWYER. Mr. Chairman, nothing related to this, particularly, but have you any kind of a report coming out of your conference in Hawaii?

Dr. ESTES. Yes; we do. We have a preliminary report prepared by members of the staff, and the University of Kentucky Research Foundation is doing, a rather extensive evaluation of the 900 parties participating, 900-plus participants. That should be available in another 2 or 3 weeks and we will be delighted to make it available to you. Mrs. DWYER. I would like to have it. Thank you.

Dr. ESTES. I might add the results thus far tend to be very, very good; highly favorable.

Mr. FOUNTAIN. It sounds like quite a venture.

Dr. ESTES. Seventy or more of them said this is one of the most exciting, most stimulating and beneficial conferences they have ever attended. So we are looking forward to this final report.

Mrs. DWYER. I am looking forward to it, too.

Mr. FOUNTAIN. The committee stands recessed until the call of the Chair.

(Whereupon the subcommittee, at 1:50 p.m., was recessed subject to the call of the Chair.)