especially to the case of Byrd v. United States of America, et al., in the U.S. District Court for the Middle District of Georgia. In the Byrd case the plaintiff asserted that the Taylor County Board of Education was transferring six Negro students against their wishes to a school attended by white children, and that such transfers had been directed by the Department of Health, Education, and Welfare. As the stipulation which you enclosed with your letter shows, the proposed action of the Taylor County Board of Education had not been required by any policy or regulation of the Department of Health, Education, and Welfare and was, apparently, due to a misunderstanding on the board's part. The method of student assignment which has been traditional in most parts of the country has been by assigning children to neighborhood schools on the basis of geographic attendance zones. This method takes no account of the preferences of the student and may well result in his assignment to a school against his expressed wish. The assignment of students to particular schools upon the basis of the students' choice has, in the main, been an innovation adopted in connection with the desegregation of schools that have previously been segregated upon the basis of race. It has been accepted as a permissible means of desegregation, but courts have made it clear that it can be used only if it is effective in abolishing the dual racial school system. Where community hostility or other pressures preclude a truly free choice, then some other method must be used in converting to a nonracial system. In two school desegregation cases in which the United States is plantiff by virtue of the Civil Rights Act of 1964, this Department has alleged that the free choice system of desegregation adopted in Franklin County, N.C., and in Calhoun County, Miss., have not operated effectively because of community hostility and specific acts of reprisal directed against the families of Negro students choosing to attend formerly all-white schools. In each of these cases we asked the court to order the defendants to take additional steps to assure that students be given an effective free choice, and, if such measures failed, to adopt a geographic system of assigning students to particular schools. In sum, it has been the position of this Department that the free choice system is a permissible method of desegregation only if it is effective in eliminating the dual system based on race. If it is not effective, then an alternative method of assigning children to particular schools, not based upon the choice of students or their parents, must be adopted. Sincerely, Attorney General. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, To: Mr. Wilbur J. Cohen, Under Secretary. Elementary and Secondary Education Act. You have asked me to advise you with respect to the authority of the Commissioner of Education to direct the Illinois superintendent of education to defer approval of future project applications by the Chicago school system, in the event that our further investigation should produce probable cause for believing that the school system is violating its assurance of compliance with title VI of the Civil Rights Act. As you realize, issues are involved which the Department of Justice now has under consideration. The following observations, although necessarily tentative in this respect, take account of current thinking in that Department insofar as I am aware of it. Once a project has been approved, payments under that project may not during the life of the project be ordered deferred on civil rights grounds, the only available remedy under title VI being a termination after hearing. Although under the title I regulations payments are to be made in installments as needed, I do not believe the Commissioner has authority to alter the schedule of payments on this ground. If at the expiration of a project (whether at or before the end of the fiscal year) there is an application to renew it without substantial change, it is my view that approval of a renewal may not be ordered deferred, but this is a question on which there has been much difference of opinion and on which we are seeking guidance from the Attorney General. In the case of application for approval of a new project, on the other hand, I believe that the Commissioner has authority to direct deferral of approval for a reasonable period to allow time for efforts to achieve voluntary compliance and, such efforts failing, to allow time for notice of hearing or opportunity for hearing. Once a hearing has been noticed, payment could be deferred during the administrative proceedings. There may be applications for amendments of existing projects, or for renewals, such as to present in combination a continuance of previous activities and an initiation of new ones. Although it is difficult to foresee all of the situations which may arise, I believe that in general the Commissioner can require the State to look to the substance rather than the form, and can require deferral of approval of substantial new activities. Since the Chicago school system has given an assurance of compliance, any direction to defer approval is a matter that lies within the discretion of the Commissioner. Under the forthcoming guidelines of the Attorney General, the Commissioner will probably be required to consider the desirability of an alternative remedy, such as an action to enforce the assurance. These procedures have not been spelled out in our regulation or in other issuance. I believe that as soon as practicable this should be done (although in what detail, and in what form, I am not prepared to say). Perhaps it should be considered in connection with any amendment of our regulation that may be proposed. Hon. RICHARD D. RUSSELL, Washington, D.C. OCTOBER 3, 1966. 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 especially to the case of Byrd v. United States of America, et al., in the U.S. District Court for the Middle District of Georgia. In the Byrd case the plaintiff asserted that the Taylor County Board of Education was transferring six Negro students against their wishes to a school attended by white children, and that such transfers had been directed by the Department of Health, Education, and Welfare. As the stipulation which you enclosed with your letter shows, the proposed action of the Taylor County Board of Education had not been required by any policy of regulation of the Department of Health, Education, and Welfare and was, apparently, due to a misunderstanding on the board's part. The method of student assignment which has been traditional in most parts of the country has been by assigning children to neighborhood schools on the basis of geographic attendance zones. This method takes no account of the preferences of the student and may well result in his assignment to a school against his expressed wish. The assignment of students to particular schools upon the basis of the students' choice has, in the main, been an innovation adopted in connection with the desegregation of schools that have previously been segregated upon the basis of race. It has been accepted as a premissible means of desegregation, but courts have made it clear that it can be used only if it is effective in abolishing the dual racial school system. Where community hostility or other pressures preclude a truly free choice, then some other method must be used in converting to a nonracial system. In two school desegregation cases in which the United States is plaintiff by virtue of the Civil Rights Act of 1964, this Department has alleged that the free choice system of desegregation adopted in Franklin County, N.C., and in Calhoun County, Miss., have not operated effectively because of community hostility and specific acts of reprisal directed against the familes of Negro students choosing to attend formerly all-white schools. In each of these cases we asked the court to order the defendants to take additional steps to assure that students be given an effective free choice, and, if such measures failed, to adopt a geographic system of assigning students to particular schools. In sur, it has been the position of this Department that the free choice system is a permissible method of desegregation only if it is effective in eliminating the dual system based on race. If it is not effective, then an alternative method of assigning children to particular schools, not based upon the choice of students or their parents, must be adopted. Sincerely, Attorney General. MATERIAL SUBMITTED FOR THE PRINTED RECORD BY HON. ROBERT W. KASTEN MEIER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, D.C., December 30, 1966. Hon. BYRON G. ROGERS, Chairman, Subcommittee on Civil Rights, DEAR MR. ROGERS: Please include the enclosed two articles, "School Desegregation 1966: The Slow Undoing, A Special Report of the Southern Regional Council, December, 1966," and "The HEW School Desegregation Guidelines" by Martin S. Cooper, a comment from the Harvard Civil Rights-Civil Liberties Law Review, Fall, 1966, Volume II, Number 1, pages 86 through 114, in the hearings on School Guidelines of the Special Subcommittee on Civil Rights. Thank you. Sincerely, ROBERT W. KASTEN MEIER, SCHOOL DESEGREGATION 1966: THE SLOW UNDOING I. INTRODUCTION: THE GENUINE ISSUE The school year 1966-67 arrived amid controversy over the implementation of school desegregation guidelines and amid still successful avoidance of an end in the South to racially separated schools as ordered by the Supreme Court in 1954. Some southern public officials had launched an at least partially successful campaign to persuade the nation that the United States Office of Education (U.S.O.E.) had "gone beyond the law" in enforcing Title VI of the Civil Rights Act of 1964. Public and even congressional debate had been focused both on a charge that excessive administrative zeal had been put into enforcement of title VI of the Civil Rights Act of 1964, and on a question of the intent of Congress when it passed the act. One might question the appropriateness of these concerns in the context of the wording of Section 601 of Title VI: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to, discrimination under any program or activity receiving federal financial assistance." Given this language of Title VI and the weight of the nation's highest judicial opinion on equal protection under the Constitution, it can be asked whether in fact the U.S.O.E. had gone far enough in carrying out the mandate given in Section 602 of Title VI "to effectuate the provisions of Section 601 [cited above] *** by issuing rules, regulations, or orders of general applicability * * Indeed, it seems clear that by accepting gradualism in its guidelines the U.S.O.E. took a conservative approach to carrying out its mandate from Congress. Thus, complaints about the degree of zeal put into enforcement of an essentially conservative policy may be seen in proper perspective. No amount of qualification of intent by Congress could stand the test of constitutionality if its effect was to deny equal protection of the law by allowing segregated dual school sysems to continue under an assumed name-freedom of choice schools-subsidized by federal funds. Only repeal of the Fourteenth Amendment could achieve what some southern officials have attempted through amendments to annual appropriations and through complaints about the “unreasonableness" of federal examiners. The study which follows attempts to provide more facts. The premise on which it does so is that body politic needs to be confronted with a clearer choice about itself on the desegregation issue. Will it allow the prima facie intent of Title VI and the Supreme Court decision of 1954 to be circumvented? Will it, despite John Kennedy's words, both witness and permit "the slow undoing of those human rights to which this nation has always been committed."? II. THE 1966 GUIDELINES: THE END OF INNOCENCE 1965 reconsidered In 1965, the United States Office of Education seemed to assume good faith on the part of southern school officials in complying with desegregation guidelines. In view of the long history of attempted evasion of court orders since 1954 on the part of many of these same officials and on the part of governors and other public office holders, this assumption was questioned by many interested in obedience of the law. A special report of the Southern Regional Council stated at that time: The most rigid checks are needed-and have been from the beginning to be sure at every step of the administrative process that plans for "voluntary" action comply with all requirements of the law, and that the plans are carried out so as to meet all requirements of the law. Any other course in the South in this matter risks criticism as naive and encourages the kind of winking at the law that has been for too long a serious fault of southern society." The performance on school desegregation in the South during 1965-66 was not reassuring. This was the first year that the Office of Education had the duty of enforcing Title VI in the schools. A decade of litigation over the 1954 school decision of the Supreme Court had by September, 1966, resulted in a pitifully small amount of desegragtion. Approximately two percent of the 2,986,100 Negro children in the eleven southern states were in desegregated schools in 1964-65. The number was increased to about six percent during 1965–66, a disappointing result considering the fanfare for Title VI, and what might have been achieved under it. Late in January, 1966, Harold Howe, II, the new U.S. Commissioner of Education, requested suggestions for changing the 1965 guidelines for 1966. Wall Street Journal columnist Jonathan Spivak commiserated with the federal agency's "almost impossible assignment: Strengthening the standards sufficiently to satisfy its civil rights critics and yet not so much as to provoke explosive southern resistance, sacrificing the integration gains already achieved. [6.01% of Negro pupils in school with whites in the South in 1965.] 'In this business, any decision is wrong; that's why no one wants to make them, frets one school desegregation specialist." Shortly after Mr. Howe's request, representatives of eight civil rights and human relations organizations attacked the U.S.O.E.'s school desegregation program for 1965 as "too weakly drawn and too timidly enforced." They planned meetings in five southern states to try to persuade the federal government to carry out a "massive school desegregation program." The U.S. Commission on Civil Rights advocated a "federal law to protect Negro students who attend white schools from intimidation and harassment." It also declared that freedom of choice plans "should not be permitted as a device for perpetuation of dual school systems." The Commission said its own studies showed that states which made the most use of freedom of choice plans had the lowest percentage of Negroes going to school with whites. The plans placed all initiative on Negroes, and often with no protection from resultant physical and economic intimidation. The Commission recommended that the Office of Education adopt policies and procedures which "will assure adequate evalution and monitoring of desegregation plans for the 5,000 school districts in the southern and border states. This would require on-the-spot inspection of some school districts and the Office of Education should seek more funds if needed for personnel to do such investigation." The Commission also repeated a recommendation of civil rights organizations that school districts operating under court order be required to file plans complying with federal guidelines. Many suggestions centered on intimidation, a quite serious problem in school desegregation as in most other areas of civil rights law enforcement. proposed 1966 civil rights legislation would have made a major step toward remedying the situation with a provision making it a federal offense to interfere with attempts of persons seeking to exercise their civil rights, and another reforming jury selection procedures. Defeat of the bill in what seemed a reaction against civil rights progress in 1966 was a major setback to the South.) Meanwhile, the U.S.O.E. in early 1966 was drafting new school desegregation guidelines. There was candid admission at the Office of Education that something stronger than new guidelines would be needed to break segregation patterns (The in school systems outside the South. By this time, many of those seeking implementation of the law were convinced the same was true for the South. The new guidelines: Acceptance and rejection On March 7, the new guidelines were issued. They included many revisions recommended by the U.S. Commission on Civil Rights. Where desegregation of four grades had been required the year before, more grades were required this time, and all grades by 1967 would be expected to desegregate. The beginning of faculty desegregation where it had not occurred was also required. All of this was consistent with court orders in school cases saying that faculty desegregation was a necessary element of school desegregation, that free-choice plans must be fair, and that school boards have an obligation to work affirmatively to achieve desegregation. Probably the most serious criticism of the previous year's guidelines had been that many of the freedom of choice plans had not been fair. They put all of the burden for compliance on Negroes, and allowed sechool officials, local police, and white society in general to shirk responsibility. The new guidelines tried to shift the responsibility more nearly to where it belonged-on the local officials, and particularly those in charge of schools. The new guidelines stated: "Each school system is responsible for the effective implementation of its desegregation plan. Within their authority, school officials are responsible for the protection of persons exercising rights under, or otherwise affected by, the plan. They must take appropriate action with regard to any student or staff member who interferes with the successful operation of the plan, whether or not on school grounds. If officials of the school system are not able to provide sufficient protection, they must seek whatever assistance is necessary from other appropriate officials." Criteria were established in the guidelines for determining whether a given free-choice (or other type) desegregation plan was actually working. A plausible criterion was whether or not the plan resulted in "substantial achievement" of desegregation. Mr. Howe indicated the following measures of "substantial achievement" would be used by his office: (1) If a system had transferred eight to nine percent of its Negro pupils from a segregated school in 1965, at least twice that number would "normally be expected" to be tranferred in September of 1966. (2) In the cases where four to five percent had transferred, the percentage would be expected to triple next term. (3) Where the transfer percentage was lower than four percent, "then the rate of increase in total transfers for the 1966-67 school year would normally be expected to be proportionately greater than under (2) above,” according to the regulations. This would seem to mean it would have to quadruple or reach an approximate minimum of ten percent.1 States whose records, according to Southern Education Reporting Service figures, had been lower than four percent in 1965-66 were: Alabama, 0.43% ; Georgia, 2.66%; Louisiana, 0.69%; Mississippi, 0.59%, and South Carolina, 1.46%. Two weeks after the guidelines were issued, the Southern Education Reporting Service noted that there had been "little immediate reaction from most southern states, except an indication of reluctant acceptance." The Nashvillebased private organization indicated that strongest opposition had come from Georgia, Alabama, and Mississippi. Georgia Governor Carl Sanders termed the guidelines "another illustration of government by bureau," and Congressman Phil Landrum (D-Ga.), said the Office of Education was "pushing too hard, too fast." Alabama Governor George Wallace declared, "We must obey the laws, just and unjust, but we should not have to obey the edicts of bureaucratic officials which go beyond the law." In Mississippi, a school district which had led the state in voluntary compliance the first year was reported unwilling to comply with the new set of guidelines. "Shock" and "surpise," expressed plaintively in other statements, were predictable as pro forma responses in some southern political situations. They were not taken as indicative of the scope and depth of recalcitrance which later was to develop. 1 Excessively expressed exasperation was a mark of much of the criticism by southern schoolmen of the guidelines. How much of it was generated needlessly by such expression as this in ten closely printed pages of guidelines? |