STATEMENT OF GEORGE SCHERMER OF GEORGE SCHERMER

ASSOCIATES

Mr. SCHERMER. Mr. Chairman, my name is George Schermer. I live at 210 A Street NE., Washington, D.C.

I want to thank you, Mr. Chairman, for the opportunity to testify on this proposal.

Perhaps I should say a word or two about my credentials.

I have worked professionally in the field of community relations and equal opportunity for 21 years. In 1945 I was appointed as executive director of what was then known as the Mayor's Interracial Committee of the City of Detroit. It is now the Commission on Community Relations. From 1953 until 1963 I served as director of the Philadelphia Commission on Human Relations.

Since June 1963 I have operated my own consulting service in human relations under the names of "George Schermer Associates." Among my clients have been large corporations, municipalities, foundations, institutions, and U.S. Government agencies including at one time the Community Relations Service. I was one of the founders and the first president of the National Association of Intergroup Relations Officials.

My appearance here is that of an expert witness. I do not represent any organization or group. The main thrust of my testimony is that the community relations function has been inappropriately defined in title X-as events are today-there might have been a good reason for its having been outlined as it was when the legislation was passed, and that the community relations function has not been properly understood either within the Government or outside it. I do not hold a doctrinaire view concerning which departmental umbrella should shelter the community relations function. I shall urge, however, that the CRS should not be transferred from where it is now until there is a clearer understanding of its program responsibilities.

I trust that no one will infer that I am being critical of the administration's policy or posture on civil rights. Nothing could be further from the truth. President Johnson's leadership in pressing for civil rights legislation and the general posture of the Federal Establishment in this regard have moved the Nation further toward equality in 2 years than in the entire preceding 100 years. Of course the civil rights movement and many Senators and Congressmen have made equally

notable contributions to that advance.

The major advances to date have been in the arena of legislation and rulemaking. There is more to be done along these lines but that is not the concern here.

As a former executive of a municipal community relations agency and as a consultant I have had considerable opportunity to observe and analyze the role of Government in the civil rights field. It is my observation that in addition to lawmaking there are three principal functions which Government should serve :

(a) Factfinding and objective measurement.

(b) Community relations.

(c) Compliance.

While these may be obvious I shall offer a brief definition of each:

(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. (b) 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 II 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 nonwhites, 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.

of persons in such communities under the Constitution or laws of the United States or which affect or may affect interstate commerce." The Service would have no powers of compulsion or law enforcement functions and would treat as confidential any information it received as such. [Emphasis supplied.]

In the question and answer portion of the discussion, the following

appears:

Question. Why not leave these duties (those of the Community Relations Service) up to the Justice Department?

Answer. The Department has, in individual cases, attempted to work along this line, as necessary on an emergency basis. But a mediating agency, separate from the Department of Justice whose duties are chiefly investigation and litigation, would be preferable. In fact, the bill specifically provides that the Service is not to be involved in any investigative or prosecutive functions. The disputes which the Service would seek to conciliate are those relating to racially discriminatory practices "which impair the rights of persons in such communities under the Constitution or laws of the United States or which affect or may affect interstate commerce." It is therefore logical that the Service be established in the Department of Commerce. [Emphasis supplied.]

On the Senate floor, similar emphasis was placed on the usefulness of an agency for conciliation and mediation with no powers of law enforcement. The floor manager of the bill, the then Senator Humphrey, put it this way:

Title X establishes a Community Relations Service to assist local communities and individuals in the voluntary adjustment of disputes and difficulties arising from discriminaton based on race, color, or national origin. The Service would consist of a Director and a small staff. It would have no law enforcement responsibilities and no powers of compulsion. It would preserve the confidentiality of information it receives, as such, in the course of its duties. I would cooperate wherever possible with State and local agencies.

Experience has shown the value of voluntary adjustment and negotiation as a means to solving racial problems. Many communities, by the use of such methods, have made remarkable progress in the elimination of discrimination and other grievances. In other communities, however, lack of adequate communication between white and Negro leaders precludes even a start toward adjustment of difficulties. In some instances Justice Department officials, acting informally and ad hoc, have been able to bring parties together to find agreed solutions to particular problems. However, no existing Federal agency is equipped to perform such mediation and conciliation as a regular and continuing function.

Senator Humphrey pointed to experience with labor disputes, saying:

Mediation and conciliation of civil rights disputes should prove no less useful a tool than it has in the area of labor disputes. Titles VI and VII of the bill specifically provide for use of informal methods of conference, conciliation, and persuasion. Such methods are equally appropriate under other titles. *

As these excerpts indicate, the confidence in which an independent Service would hold its discussions and negotiations was considered a most important tool to its effectiveness. The title as passed reflects this concern.

Section 1003 of the Civil Rights Act authorizes the Service to cooperate with appropriate State or local public or private agencies. It requires conciliation services to be conducted in confidence and without publicity, and that any information the Service acquires upon the understanding that it be held confidential shall be held confidential. No officer or employee of the Service is to engage in the performance of any investigation or prosecuting function in any litigation arising out of a dispute in which he acted on behalf of the Service. Disclosure of information in violation of these provisions is

punishable by a fine of not more that $1,000 or imprisonment for not more than 1 year.

Section 1004, relating to the Director's annual report, expressly prohibits disclosure of information in violation of section 1003, even to Congress. Under section 204 (d) of the 1964 act, the Federal courts are given discretion to refer a public accommodations controversy to the Service for voluntary settlement. Section 205, however, expressly provides that all hearings by the Service in this regard must be held in executive session, and no testimony may be released except by agreement of the parties with permission of the court.

Without these guarantees it is extremely doubtful that the Service could operate effectively. How many employers would enter into negotiations if any information obtained during the course of such negotiations could later be used against them in connection with an investigation of an unlawful employment practice charge under title VII? The number of such examples is endless since the 1964 Civil Rights Act authorizes Federal litigation in the areas of voting rights, places of public accommodations, public facilities, public schools, employment, and the denial of 14th amendment rights.

I am, of course, aware of the President's statement and of the Justice Department's expressed intent that the transfer will be carried out with "full regard for the provisions of section 1003 of title X of the Civil Rights Act of 1964 relating to (1) cooperation with appropriate State or local, public, or private agencies; (2) the confidentiality of information acquired with the understanding that it would be so held; and (3) the limitation on the performance of investigative or prosecutive functions by personnel of the Service."

I do not doubt their sincerity. It was, however, disquieting to read the testimony of the Attorney General at the hearings held recently by the subcommittee. I note his statement that he takes the statutory mandate on confidentiality to mean chiefly that information available to him or the Department of Justice through the Community Relations Service shall "not be given publicity." He agreed that, in the light of the provision of the public accommodations section which permits the courts to refer cases to the Community Service, the courts could find themselves in the position of referring, for purposes of conciliation, a case being prosecuted by the Department of Justice to the Department of Justice. He expressed the hope that "not much" inhibition would result.

Generally the Attorney General based the case for transfer on the great change in circumstances in the last 22 years. There has indeed been change, change that appears to me to give greater opportunity for an independent Community Relations Service to work toward what it described in its 1965 report as the "most important general goal of CRS conciliation activity." That is "to assist communities in every way possible to help themselves achieve voluntary and peaceful compliance with Federal civil rights laws." I am all for strengthening the Service to enable it to carry out that responsibility most effectively. The heart of my concern is whether the proposed transfer is the best way to do that.

Given the statutory limitations on the CRS, I fail to see why the Service and the Department cannot work together as effectively and as advantageously without the Service being lodged in the Department of Justice and subject to the Attorney General.