thetical question you raised as to raise this question that Mr. Barrett put forth as to whether they bear any relation to reality. Mr. ASHMORE. I have another reason for asking that question. Were any of these witnesses who gave this testimony subject to crossexamination? Mr. SEELEY. Not at this time. We merely obtained the affidavits. In how many of these Mr. ASHMORE. None were cross-examined. school districts, if any, did you receive complaints alleging that school officials refused to honor the choices of children or their parents which were submitted by the students or their parents on their own initiative rather than being obtained through a house to house canvas by your field agents or teams? Mr. SEELEY. Twenty-three. Mr. ASHMORE. A desegregated school system is one, let us say, or can we say, which does not discriminate on the basis of race and does not have compulsory segregation. It may or may not be integrated depending on the particular circumstances. For example, the District of Columbia schools, according to the Office of Education are desegregated but very few of the individual schools are integrated, is that correct? Mr. Howe. That is correct, sir. You will find, of course, a high degree of faculty desegregation and some pupil desegregation in the District of Columbia. Mr. ASHMORE. Mr. Seeley, you stated that a school district in deferral status can receive a hearing at any time by requesting it. How many school districts, if any, which receive notices of deferral were advised in writing by your office prior to the Fountain amendment that they would be granted an immediate hearing if they requested it? Mr. SEELEY. I am not sure, sir. Mr. ASHMORE. Will you supply that for the record? Mr. SEELEY. Yes. I believe it was well understood in conversations with these districts. I believe they understood that, but I am not sure they were ever advised in writing. Mr. ASHMORE. I want you to answer the question for the record. (The information follows:) Although no specific and individual notice of the right to have an immediate hearing was given to school districts in writing at the time of deferral, local school officials had been advised on numerous occasions by Office of Education staff members that such hearings were available. In addition, instructions in writing were given to State education agencies to notify the Office of Education as soon as they took any action to defer funds, so that the local districts involved could immediately be sent formal notice in writing of the opportunity for a hearing. The purpose of the deferral, as I have testified, is to provide additional time for local school officials to take steps to bring their districts into compliance with title VI, without being subjected to formal enforcement procedures. Mr. ASHMORE. You indicated one school district which was deferred did request a hearing which was not granted. Please give use the details on that. You can do that for the record. (The information follows:) The school district which requested a hearing which has not been granted is Dale County, Ala. The reason for not offering a hearing promptly is that the discussions with the Department of Justice indicated that in this case perhaps alternative means of compliance might be appropriate, rather than the termination of Federal assistance. The Department of Justice feels that a suit requiring the desegregation of schools might be the appropriate way to deal with a particular situation in this school district. Mr. ASHMORE. This is the last question. Do you know of any school district which requested a hearing on its own initiative rather than in response to a notice of opportunity for a hearing and was granted an immediate hearing? Mr. SEELEY. I do not know of any other than the one you which had requested a hearing. Mr. ASHMORE. Thank you, Mr. Chairman. Mr. ROGERS. Mr. Kastenmeier. mentioned Mr. KASTENMEIER. Mr. Chairman, in view of the late hour, I will forgo asking any questions. I would like to make a concluding comment. I think these hearings have been useful. I think particularly this morning they tended to bring in focus some of the problems. As the gentleman from Florida mentioned whether or not there is a disproportionate amount of time conducted on civil rights on the part of the Office of Education, this consistent with the comment of the gentleman from Minnesota as to whether or not the Office of Education ought to be a mediation service, whether in fact they ought not to be somewhat tougher in pursuing that which the Congress provided. While there will always be problems of administration, it seems to be clear that to be more conciliatory, in a sense, is to be more effective. It certainly is indicated that freedom of choice has very grave shortcomings, and I think the evidence was such as to question whether it ought to be part of any future system or not. In any event, Mr. Chairman, I trust there will be no slackening in the efforts of what the law provides. Mr. ROGERS. With that, the committee will stand in recess subject to call of the Chair. Commissioner Howe, we will certainly call to your attention any information that may be supplied to the committee as to complaints alleging your failure to carry out your duties and responsibility. Thank you so much. We appreciate your frankness in giving us this information. Mr. Howe. I would like to thank you, gentlemen. It has been a very helpful conversation. (Whereupon, at 1:20 p.m., the subcommittee adjourned.) (The following matter was received for the record :) MATERIAL SUBMITTED FOR THE PRINTED RECORD BY HON. ROBERT T. ASHMORE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA Hon. BYRON N. ROGERS, HOUSE OF REPRESENTATIVES, Washington, D.C., December 20, 1966. Chairman, Special Subcommittee on Civil Rights, Committee on the Judiciary, U.S. House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: In order to clarify the questions which I asked of Mr. Howe during the last few moments of his testimony on December 16, 1966, I am forwarding a letter of which I have attached a copy for your information. I would appreciate your entering this appropriately in the record of the hearings and also entering Mr. Howe's answer to it. I wish to thank you for your assistance and the help of Mr. Zeifman the cocounsel to the subcommittee. I believe that we learned a great deal from these hearings and anticipate that this subcommittee can accomplish much good in the area which we are authorized to study. With warm regards and best wishes for the holidays. Sincerely yours, Enclosure. Mr. HAROLD HOWE II, ROBERT T. ASHMORE. HOUSE OF REPRESENTATIVES, Washington, D.C., December 20, 1966. Commissioner, Office of Education, Department of Health, Education, and Welfare, Washington, D.C. DEAR MR. HOWE: During hearings of the Judiciary Subcommittee last Friday, as you know, I asked you and your associates a number of questions. Because of the limited time available for questioning and because some of the information requested was not immediately available, it was agreed that answers to many of the questions would be supplied for the record. After examining the transcript of Friday's hearings, I thought it advisable to send you this letter for the purpose of obtaining further clarification concerning some of the answers given on Friday and to avoid any confusion concerning the scope of the questions for which answers are to be supplied for the record. Particular matters for which additional information is desired or questions concerning which additional explanation is being given are listed below: 1. (a) You indicated (page 445) that a brief regarding the legal basis used for deferral prior to November 3, 1966, has been submitted to the subcommittee. Please identify this brief and cite the specific language, if any, explaining the legal basis for your conclusion that you have authority to order State educational agencies to defer action on title I applications. (b) You stated (page 445) that the authority used for deferral prior to November 3, 1966, was "*** the authority made available under the Justice Department guidelines," which were issued (page 456) in December, 1965, or January 1966. Please state whether or not any State agencies were ordered to defer action on title I applications prior to the issuance of the Justice Department guidelines. (c) Please state whether or not you requested and/or received a specific written opinion from your own attorneys or from the Justice Department as to the legality of your ordering State educational agencies to defer action on title I applications prior to the time that you first issued such orders, and please provide copies of any such requests and/or opinions. It would be appreciated if you will also provide copies of any such requests and/or opinions, if any, which were made and/or received subsequent to the time you first issued such orders. 2. I asked (pages 457-458) whether it was your position that you can terminate Federal financial assistance to a school district which has a free choice plan because you are not satisfied with the amount of actual integration resulting from the choices made by students and their parents, even though your requirements with respect to faculty desegregation have been met and though all available evidence indicates that the choices were truly free. In responding to that question, both you and Mr. Barrett apparently predicated your responses on the assumption that no integration had resulted and expressed doubt that such a situation would ever occur. In order to clarify your position with respect to the legal authority you claim, please respond to my question on the assumption that some actual integration-at least 2 or 3 percent-had occurred, but that the Office of Education was not satisfied with this amount. Please state specifically whether or not, under such circumstances, your office believes it has authority to terminate Federal financial assistance because it is not satisfied with the amount of actual integration resulting from the freely exercised choices of students or their parents. If so, please explain the basis for your belief. 3. I asked (page 459) whether you could cite any decisions by the Federal courts of South Carolina or by the Fourth Circuit Court of Appeals which have held that a free choice plan can be declared invalid, even if the choices are admittedly truly free, because the choices exercised do not result in a sufficient amount of actual integration to satisfy the Office of Education or other interested parties. Please state whether or not you know of any such cases and, if so, give citations. 4. I asked (page 461) in how many of the 59 school districts which have been sent deferral notices because of alleged unsatisfactory performance under a free choice plan you had sworn testimony or notarized statements alleging that school officials exerted pressure on Negro students or their parents, not to choose a formerly all-white school. You described complaints received in 14 of 19 districts in one State. However, from your description it would appear that the majority of these complaints do not involve an allegation of pressure by school officials not to choose formerly all-white schools and, in fact, do not even involve the actions of school officials. It would be appreciated if you will state specifically in how many of the 59 cases of school districts deferred because of alleged unsatisfactory performance under a free choice plan the Office of Education has a sworn complaint or complaints alleging pressure by school officials on Negro students or their parents not to choose formerly all-white schools. For each case in which you have such a sworn complaint or complaints, please state specifically whether or not the sworn somplaint or complaints were received before or after issuance of a notice of deferral to the school district involved. Sincerely, ROBERT T. ASHMORE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Hon. ROBERT T. ASHMORE, Washington, D.C. OFFICE OF EDUCATION, Washington, D.C., January 5, 1967. DEAR CONGRESSMAN ASHMORE: This is in response to your December 20 letter in which you requested additional information as a result of my appearance before the special Judiciary Subcommittee on Civil Rights December 14-16, 1966. The answers to your questions are as follows: 1. (a) The legal brief concerning the basis for deferral prior to November 3, 1966, was submitted to the subcommittee in response to questions asked by Congressman Rogers in his letter to me of November 10, 1966. The brief, which goes into considerable details, replies to question 7 which is based on my testimony before the House Rules Committee (page 98). I am attaching a copy of that answer. (b) The Office of Education did instruct State education agencies to defer action on title I applications prior to issuance of the Justice Department guidelines. These instructions were based on authority under section 602 of the Civil Rights Act of 1964. (c) The legality of our deferral instructions to State agencies was carefully cleared with the General Counsel's Office and the Justice Department. Both General Counsel and the Justice Department reviewed the HEW regulation which requires deferral for school district applications which lack assurance of compliance with the Civil Rights Act of 1964. Attached is a copy of a legal opinion in this matter. 2. I think the answer to this question is contained in the attached letter from the Attorney General to Senator Richard D. Russell. As I told the subcommittee, free choice plan is acceptable, in the opinion of both the Office of Education and the courts, only if it accomplishes the purpose for which it is intended-the elimination of the dual segregated school system. When it fails to do this, the local school board is obliged to use some other method of desegregating schools. 3. Neither the Federal courts of South Carolina nor the Fourth Circuit Court of Appeals have had before them the issue of the validity of freedom of choice plans, where the choices are admittedly truly free. Invariably, when such plans have been the subject of litigation, it has been because the freedom of choice plans as operated have not been truly free. See, e.g., Bradley v. School Board, Richmond, Va., 345 F. 2d (C.A. 4, 1965); Jeffers v. Whitley, 309 F. 2d 621 (C.A. 4, 1962). In addition, Judges Bell and Sobeloff, in their concurring opinion in the Bradley case recognized freedom of choice as an interim device for the elimination of segregated school systems. The courts of appeals in other southern circuits recognize that freedom of choice is but one way of achieving biracial schools, Singleton v. Jackson 348 F. 2d 729 (C.A. 5, 1965); Singleton v. Jackson 355 F. 2d 865 (C.A. 5, 1966), and that it has not yet demonstrated that such a method will fully implement the decision of Brown and subsequent cases and the legislative declaration of section 2000 (d) of the Civil Rights Act of 1964. 4. In the 59 school districts deferred which you mention in your question, the Office of Education received 11 complaints of pressure by school officials on Negro students or parents not to choose all-white schools. In each case, the complaint was received before a notice of deferral was sent to the school district involved. Please let me know if I can be of any further assistance. Sincerely, Enclosures: HAROLD HOWE II, Letter from Justice Department to Senator Russell, October 3, 1966. 7. That the Office of Education has improperly demanded that State education agencies defer action on applications for funds for programs authorized under title I of the Elementary and Secondary Education Act (hearings, p. 98.) It is true that on numerous occasions the Office of Education has instructed State education agencies to defer action on applications by school districts for funds to support new activities, including new activities to be carried out under title I of the Elementary and Secondary Education Act of 1965. This has been done pending efforts to obtain voluntary compliance with title VI, and, when these efforts fail, pending the completion of administrative proceedings required by section 602 of the Civil Rights Act of 1964. The legal basis for these limited deferral requirements is as follows: Section 602 of the Civil Rights Act of 1964 expressly provides for the "termination of or refusal to grant or to continue assistance" only where there has been an "express finding on the record, after opportunity for hearing" of failure to comply with the requirements adopted pursuant to title VI. The phrase "termination * * * of assistance" and "refusal * * * to continue assistance" clearly apply to funds which the recipient is currently or has just been receiving. The Attorney General has advised HEW and all other Federal agencies concerned that action on applications for assistance for continuing activities, including in many instances initial applications for such activities, may not be deferred for alleged noncompliance with title VI, and that funds for such activities may not be terminated or discontinued or otherwise withheld until after the hearing process has been completed and the failure to comply has been established. However, if an application is pending for funds to support a new activity, the question arises as to the applicability of the provisions for a "refusal to grant *** assistance." If there are strong grounds to believe the applicant for assistance for a new activity is failing to comply, the Commissioner will direct that action to approve the application shall be deferred, pending additional efforts to achieve voluntary compliance, and, if such efforts fail, pending an administrative proceeding (with opportunity for a hearing) to determine whether there should be a refusal to grant the requested new assistance, or whether the application should be approved because the applicant is not failing to comply. OCTOBER 3, 1966. Hon. RICHARD D. RUSSELL, U.S. Senate, Washington, D.C. DEAR SENATOR RUSSELL: In your letter of August 29, 1966, you ask to be advised of this Department's position on requiring the transfer of Negro students to predominantly white schools against their expressed wishes. You refer |