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(a) Factfinding and objective measurement
This is the function now performed by the Civil Rights Commission. The function is a vital one and the independent status of the Commission is essential to maintain a competent, reliable, and respected source of information. Until recently the CRS has focused primarily upon the patterns, practices, and problems which were the product of the behavior of persons, institutions, and levels of government outside the Federal Establishment. Now that the legislation has placed so much responsibility upon the Federal Government it will become increasingly necessary for the CRS to measure the effectiveness of Federal programs, which is all the more reason why it should be independent. (6) Community relations
I am using the term "community relations” in a generic and programmatic sense rather than as defined by title X. My definition does not include conciliation as used in titles ÎI and X of the Civil Rights Act. Nor does it place emphasis upon the settlement of disputes, again, in a formal sense.
Community relations programing is not easily defined. I should like to use two illustrations:
First, let's consider the example of a good school. There are rules; there is discipline. Pupils know that if the rules are not observed there are penalties. However, if the school is well directed the rules and discipline simply serve as a foundation for minimum standards of behavior. Real learning, which requires motivation and enthusiasm, requires leadership and a high degree of volunteer participation among the students. .
As a second example we might think of a public health program. Sanitary laws, inspections, and enforcement would be essential. We couldn't protect the public health without them. But a good health program would go far beyond law enforcement. There would be health education and a great many noncoercive, cooperative, and voluntary programs that would go far beyond the minimum requirements established by law.
These same concepts apply to promoting equal opportunity and healthy community relations. Assuming that the law will be effectively enforced we will want to develop the voluntary programs that will generate the enthusiasm and cooperation for building the good society. (c) Compliance
The compliance function consists of four successive steps or elements as follows:
(1) Affirmative regulation—this includes all of the education, information, persuasion, compliance reviews, inspections, and the like that help to develop voluntary compliance.
When I talk about persuasion and compliance and so forth, I want to make it clear that I'm talking about an operation that is related to the demands of the law, not something that goes beyond the minimum requirements of law.
(2) Investigation of specific complaints, hearings, and findings.
(3) Conciliation, in which a resolution of the problem or practice is attempted in lieu of enforcement proceedings.
(4) Formal enforcement proceedings.
This is admittedly overly simplified but it should suffice for the purposes of this discussion.
Compliance under the Civil Rights Act is delegated in part to the agencies responsible under title VI, the EEOC, and the Attorney General except that under title II a court may delegate the conciliation function to the CRS.
Returning now to the community relations function as I have defined it above, I suggest that localities, all over the United States where there are significant numbers of non whites, need assistance in developing affirmative, noncoercive, cooperative programs to solve their local problems. Remember, I am not saying they need this instead of the compliance program. There won't be any programs at all if we don't have compliance. The programs are needed in addition to compliance. Many localities do not understand this and many others understand but do not know how to develop the programs. In most instances there is not enough local support to develop the necessary program.
The Federal agency should provide direct services in some areas that are not ready to set up local committees or commissions. In most areas the local leadership can provide the base of operations and the Federal Service can supply technical assistance. Among the greatest needs are Federal grants for specific projects such as the promotion of local police-community relations programs, training services for local leadership, local factfinding, and dissemination of reliable information.
I come now to the question of whether my description of a community relations function coincides with what the CRS is actually doing or is expected to do. As I read the act it is not at all clear that it is what the CRS is supposed to do.
Sections 204(d) and 1003(b) are fairly explicit in stating that under certain conditions CRS is to serve as a conciliation service in connection with the compliance function.
The restraints upon the divulgence of information in section 1003 (b) are so broad and severe that one would expect most CRS personnel to be too frightened to communicate.
I'm not saying they are too frightened, but if I were working in that agency under that rule, I would
be. That might be the right way to conduct the conciliation of issues under litigation or between parties in a dispute comparable to labor negotiations but it is no way to develop a community relations program.
Section 1002 quite appropriately authorizes the CRS "to provide assistance to communities and persons therein. * * *»
* *» Unfortunately it goes on to say “in resolving disputes, disagreements, and difficulties relating to discriminatory practices.”
From my knowledge of what the CRS has been wanting to do I think it has not been internally inhibited by this clause. They have been wanting to go beyond those limitations.
However, I believe that a narrow interpretation of this clause by others has been an inhibiting factor. The assumption appears to be that the CRS is to fight fires. When a community is in trouble; when "disputes" are imminent, then CRS is to offer its services. Of course, CRS should offer its services at any time including times of conflict. But it ought to be promoting a broad program of preventive and affirmative action.
I realize this is not the appropriate forum for recommending changes in legislation, but if they were in order, I would suggest relieving CRS of its formal conciliation function altogether, and the emphasis there is "formal.” A great deal of informal conciliation can go on in your community work, but I am relating this—when I use the word "formal”—to matters that might be or are under litigation.
There is always room for conciliation in the arena of governmental regulation and enforcement. I see no reason why the Department of Justice should not have some discretion about when to press charges and when to resolve issues by consent
My second recommendation would be to strengthen and clarify section 1002. It should be eminently clear that the CRS is to foster and promote positive community relations programs wherever local communities are ready to respond, to offer technical assistance, and to provide financial assistance for the kinds of programs I mentioned above.
Finally, I recomend against identifying the community relations function with law enforcement. Each function is important and neither can succeed without the other. But each should have its own integrity.
For the time being, I should think that Commerce provides as satisfactory an umbrella as any.
I would like to add here that I am very much aware that I have taken a somewhat different line than some of the others who are opposed to the transfer, because I put less emphasis upon the formal conciliation function. As far as I'm concerned, from my experience, that kind of conciliation can be carried on by the enforcement arm.
What I want to do is to separate entirely from the enforcement concept or the enforcement function another very positive creative kind of program which should involve tremendous numbers of people in every community in a problem-solving process where they can feel they are doing it. This is not to say that the coercive arm of the Federal Government at another point should not be felt. I am in favor of firm enforcement of the law.
Senator HARRIS. Thank you very much for a thought-provoking differentiation of functions in the civil rights field.
Is it a fair statement to say that your objection is not so much the transfer of what the Community Relations Service is now doing, but a transfer of what it should do?
Mr. SCHERMER. Yes. And I think before it can really do what I think it ought to do, there ought to be some clarification of the act.
Senator HARRIS. And you would not object if conciliation were in the Department of Justice ?
Mr. SCHERMER. Conciliation per se, no. But I would not want to I'm afraid that in the process you might move the whole thing over there. I really feel that what I call community relations as distinct from conciliation is a great need.
In my consulting work I get around the country a good bit and work with cities, and they need help, especially the smaller cities. Some of the bigger cities have professional staffs. But the smaller cities and suburban areas need help and guidance. And if I did not have to make a living by charging fees, I would be a very busy man. But I cannot spend that much time working—just answering people's questions.
Senator HARRIS. Let me say that under the rules of the Senate a committee may not sit during the Senate session without consent of the Senate, leave of the Senate, and that has not been obtained in this instance. So we must now recess. Before doing so, however, I will place in the record at this point a statement from Senator Clifford P. Case, supporting Senate Resolution 220.
STATEMENT OF HON. CLIFFORD P. CASE, U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Mr. Case. The proposal to place the Community Relations Service under the Department of Justice gives me great concern. It is a mistake, I believe, to mix conciliation with enforcement. That is what the proposed transfer inevitably tends to do.
The transfer flies in the face of general experience with conciliation functions as well as the legislative intent in establishing the Community Relations Service.
When President Kennedy first proposed the Community Relations Service, he put particular emphasis on the need for an independent agency. In his message of June 19, 1963, he said:
* * * But conciliation and cooperation can facilitate the achievement of those rights, enabling legislation to operate more smoothly and more effectively.
The Department of Justice and its Civil Rights Division have already performed yeoman service of this nature, in Birmingham, in Jackson, and throughout the country. But the problem has grown beyond the time and energies which a few otherwise burdened officials can make available-and, in some areas, the confidence of all will be greater in an intermediary whose duties are completely separated from departmental functions of investigation or litigation." [Emphasis supplied.]
A Community Relations Service title in the Civil Rights Act of 1964 was eliminated in the House Judiciary Committee. On the House floor, it was, however, restored. Much of the discussion in behalf of restoration centered on the need for a confidential conciliation agency divorced from the legal and prosecuting arm of the Government.
Following passage of the 1964 civil rights bill by the House of Representatives, the Department of Justice prepared a detailed analysis of each title of the act. In the discussion of the title "Establishing the Community Relations Service,” it was pointed out that:
* * * in many communities experiencing racial tensions a lack of communication between white and Negro leaders precludes even a start toward solutions. In those communities it is necessary that third parties attempt to bring these leaders to the conference table. Thus, officials of the Department of Justice, acting informally on a situation-by-situation basis, have been able in a number of situations to aid in resolving disputes by conferring with the parties and helping to establish lines of communication. However, it is apparent that neither the Department of Justice nor any other existing Government organization can accomplish what is needed in the field of mediation. This task can best be carried on by a congressionally constituted agency concerned solely with mediation assistance. [Emphasis supplied.]
Title X would establish such an agency in the Department of Commerce under the name of the "Community Relations Service:" It would be authorized to help in the resolution of racial disputes on a voluntary basis and in cooperation with State and local agencies. The disputes which the Service would seek to conciliate are those relating to racially discriminatory practices "which impair the rights
ings are concluded--not in those words that it would be this coming week, and that at the last meeting of the conference this issue was raised in very strong form, about 3 or 4 weeks ago, and there are many of us who are deeply concerned that a meeting has not been held so that a position can be taken on this issue.
Senator HARRIS. May I say, not responsive to that particular point, but more in general response to it—the chairman has asked me to state that when these hearings are adjourned, the record will be kept open for 1 week for further submission of any views or statements that anyone has for the record.
Mr. Higgs. Thank you very much, Mr. Chairman, because leaving the record open would, I think, make it possible for these views to be felt.
I might add that I was quite a bit disturbed by a couple of points that Mr. Wilkins made in his statement, in which he says, for example, on page 3, that the Director of the Community Relations Service needs the advice, the guidance and the assistance of a Cabinet officer. I have some problems with that-if he's receiving the guidance in his activities.
I also have some deep concern about his, as he puts it, wanting to be where the action is, and this disturbs me, frankly, about being too closely involved with the action.
That's all I have.
Senator HARRIS. For Senator Javits, whose very sharp questioning of witnesses before this committee has helped us immeasurably, I want to ask some questions which he left.
As you know, he had to leave for a while.
He wanted to ask about a subcommittee report which you make reference to, I believe, in the second paragraph of your prepared statement—that you served as one of six on a subcommittee of the leadership conference to study the problem before this subcommittee. He wanted me to ask was there a report, and if so, who prepared it, and at whose direction was it prepared ?
Mr. Higgs. Well, in response to Senator Javits question, there was a report, there was a meeting, a luncheon meeting. The chairman of the committee was Dr. Ben Sissel of the United Presbyterian Church, a member of the leadership conference. And at this meeting waslet me see- —this was on December 16, 1965. It had followed, I suppose—followed by 2 weeks or so a leadership conference meeting which set up the committee.
. At that time, frankly, I think I can say that the sentiment within the conference in general terms—not specifics—the sentiment was very much that there would be opposition to this, and there would be very active opposition to this transfer.
At any rate, the committee was set up.
The committee met on December 16. I believe there were four of the six voting members who were present, and of course, Dr. Sissel, the chairman.
We did adopt a report, not in so many words, but we discussed the whole matter, and Dr. Sissel took notes from which he prepared the report. All of this was approved unanimously, and four of the six members were there.
Then--for almost all we knew, for about a month—this was it, this was basically the report.