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The concern about faculty desegregation is apparently based on the belief that the Office of Education lacks authority to require what is obviously an essential ingredient in the elimination of dual, segregated school systems. Much of it also is created by the great difficulty of starting the desegregation of school faculties in many communities accustomed to segregation of both students and teachers.

Because of the controversy and concern which have developed over the past year, and because I am convinced that there are misunderstandings about the issues involved, I think it is appropriate for me to outline here, as briefly as I can, the historical and legal background of our program. I am submitting for the record and for the committee's information, copies of these documents: (1) a memorandum by the acting Attorney General on the legality of the requirement for faculty desegregation; (2) a compilation of some of the court decisions concerning the guidelines; (3) a memorandum by the General Counsel of the Department of Health, Education, and Welfare on the legal basis for the 1966 school desegregation policies.

Mr. ROGERS. We shall accept those memoranda for the record.
(The memoranda follow :)

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C., October 4, 1966.

Congressman HOWARD W. SMITH,

Chairman, Rules Committee,
House of Representatives,

Washington, D.C..

DEAR MR. SMITH: During the course of Commissioner Howe's testimony before the Rules Committee on September 30, 1966, the question was raised whether the Department of Health, Education, and Welfare had authority, under the provisions of Title VI of the Civil Rights Act of 1964, to require school districts maintaining dual school systems, in which Negro students and Negro teachers have been assigned to one set of schools and white teachers and white students to another set, to desegregate their faculties as a necessary part of desegregating their school system. You requested that the Department of Justice submit a memorandum to the Committee regarding the applicability of Title VI to such faculty desegregation.

In our judgment, Title VI not only permits the Department of Health, Education, and Welfare to require faculty desegregation, but obliges them to do so as a condition for continued federal financial support under the programs administered by that Department.

I will first discuss the scope of the term "discrimination" in section 601 of the Act as it applies to a public elementary and secondary education system. Next, I will consider the restrictive effect of section 604 of the Act which provides that nothing in Title VI shall be construed to authorize action "with respect to any employment practice."

1. Section 601 of the Civil Rights Act of 1964 provides that "[n]o 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." This is a clear congressional declaration that discrimination, on the basis of race, against the intended beneficiaries of federal aid programs is unlawful. And it is equally clear that the intended beneficiaries of the programs administered by the Department of Health, Education, and Welfare, granting federal funds to public elementary and secondary school systems throughout the country are the students attending schools in those systems.

The Revised Statement of Policies for School Desegregation Plans under Title VI of the Civil Rights Act of 1964, issued by the Office of Education in March 1966, provides in section 181.13 for the desegregation of faculty and staff as a necessary part of any desegregation plan. The same principle that appears in these revised "Guidelines" was first stated by the Department of Health, Education, and Welfare in its earlier Guidelines of April 1965. The rationale of this provision, as stated in the Revised Guidelines, is that "the racial com

position of the professional staff of a school system, and of the schools in the system, must be considered in determining whether students are subjected to discrimination in educational programs." In short, the stated obligation of the school officials to the students is to eliminate all racial aspects of the dual system, including faculty segregation. This view of the obligation is fully supported by the decisions of the Federal courts.

In 1954 the Supreme Court of the United States declared that the segregation of public school students according to race violates the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483 (1954). A year later, the Court, in determining how judicial relief could best be fashioned, mentioned the problem of reallocating staff as one of the reasons for permitting the desegregation process to proceed with "all deliberate speed." Brown v. Board of Education, 349 U.S. 294, 301 (1955).

Two cases decided by the Supreme Court in late 1965 indicate that school boards may no longer postpone the responsibility owed their students of desegregating faculty. In Bradley v. School Board of Richmond, Virginia, 382 U.S. 103 (1965), the Court took the view that faculty segregation had a direct impact on a desegregation plan, and that it was improper for the trial court to approve a desegregation plan without inquiring into the matter of faculty segregation. In reaching this conclusion the Court, in a unanimous opinion, commented that "there is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative." And in ruling that there should be no further delay in a hearing on the question of faculty desegregation, the Court further emphasized that "delays in desegration of school systems are no longer tolerable." 382 U.S. at 105.

In Rogers v. Paul, 382 U.S. 198 (1965), the Supreme Court extended the undelayed right to challenge teacher segregation to students who had not yet themselves been affected by the School Board's gradual desegregation plan. The Court stated (382 U.S. at 200):

"Two theories would give students not yet in desegregated grades sufficient interest to challenge racial allocation of faculty: (1) that racial allocation of faculty denies them equality of educational opportunity without regard to segregation of pupils; and (2) that it renders inadequate an otherwise constitutional pupil desegregation plan soon to be applied to their grades."

Relying on the Bradley case, the Court of Appeals for the Fifth Circuit, the circuit covering the states of Alabama, Florida, Georgia, Louisiana, Mississippi and Texas, ruled in January 1966, in a suit also brought by Negro students, that it was "essential" that the plan of desegregation for Jackson, Mississippi "provide an adequate start toward elimination of race as a basis for the employment and allocation of teachers, administrators, and other personnel." Singleton v. Jackson Municipal Separate School District, 355 F. 2d 865, 870. The Court of Appeals for the Fourth Circuit, covering Maryland, North Carolina, South Carolina, Virginia and West Virginia, and the Court of Appeals for the Eighth Circuit have similarly ruled in suits brought by pupils in Durham, North Carolina and El Dorado, Arkansas respectively. Wheeler v. Durham City Board of Education, No. 10,460 (C.A. 4, July 5, 1966); Kemp v. Beasley, 352 F.2d 14, 23–24 (C.A. 8, 1965). In the Wheeler case, the Court stated (slip opinion, p. 4) :

"We read the [Bradley] decision as authority for the proposition that removal of race considerations from faculty selection and allocation is, as a matter of law, an inseparable and indispensable command within the abolition of pupil segregation in public schools as pronounced in Brown v. Board of Education, supra, 347 U.S. 483. Hence no proof of the relationship between faculty allocation and pupil assignment was required here. The only factual issue is whether race was a factor entering into the employment and placement of teachers." The Court in Wheeler went on to require (at p. 6) :

More

"Vacant teacher positions in the future * ** should be opened to all applicants, and each filled by the best qualified applicant regardless of race. over, the order should encourage transfers at the next session by present members of the faculty to schools in which pupils are wholly or predominantly of a race other than such teacher's. A number of the faculty members have expressed a willingness to do so. Combined with the employment of new teachers regardless of race, this procedure will, within a reasonable time, effect the desegregation of the faculty."

Numerous district courts, in applying the law as elucidated by the Supreme Court and the courts of appeals of their various circuits. have entered orders in school desegregation cases requiring the desegregation of faculty and staff.

Citations to these cases and excerpts from the orders entered are set forth in an enclosure to this letter.

In entering faculty desegregation orders, a few of the district courts have also set forth their reasons in memorandum opinions. One such opinion was issued by the United States District Court for the Eastern District of Virginia, in refusing to approve a plan submitted by the School Board of Greensville County, Virginia, on the ground that the plan must, but failed, to include a provision for the employment and assignment of staff on a nonracial basis. Wright v. County School Board of Greensville County, Virginia, 252 F. Supp. 378 (E.D. Va. 1966). In holding that a faculty desegregation provision approved by the Commissioner of Education was not sufficient, the court stated (at 384):

“The primary responsibility for the selection of means to achieve employment and assignment of staff on a nonracial basis rests with the school board * * *. Several principles must be observed by the board. Token assignments will not suffice. The elimination of a racial basis for the employment and assignment of staff must be achieved at the earliest practicable date. The plan must contain well defined procedures which will be put into effect on definite dates. The board will be allowed ninety days to submit amendments to its plan dealing with staff employment and assignment practices."

The United States District Court for the Western District of Virginia, in providing for similar relief in the case of Brown v. County School Board of Frederick County, 245 F. Supp. 549, 560 (1965) said:

"[T]he presence of all Negro teachers in a school attended solely by Negro pupils in the past denotes that school a 'colored school' just as certainly as if the words were printed across its entrance in six-inch letters."

The decisions of the Federal courts which I have referred to, and the many additional orders synopsized in the enclosure to this letter, establish, I believe, that allocation of faculty upon the basis of race affects a racial discrimination against the students. Absent a clear and specific expression by Congress to the contrary, it should not be assumed that Title VI of the Civil Rights Act of 1964 was intended to exclude this important aspect of racial discrimination that has been traditional to segregated school systems.

2. The suggestion that section 604 of the 1964 Act precludes application of section 601 to the hiring and allocation of public school faculty on the basis of race is inconsistent with the legislative history of Title VI and is contrary to the normal rules of statutory construction.

Section 604 provides that "[n]othing contained in this title shall be construed to authorize action under this title by any department or agency with respect to any employment practice of any employer * * * except where a primary objective of the federal financial assistance is to provide employment." In enacting Title VI the chief concern of the Congress was to prevent discrimination against the beneficiaries of federally-supported programs. See Hearings, H.R. Comm. on Rules, H.R. 7152, 88th Cong., 2d Sess. (1964), pp. 94, 226; 110 C.R. 6544-46 (Senator Humphrey). After the language of what is now section 601 had been proposed to assure against such discrimination, the desirability of additional clarifying language was suggested to make it clear that discrimination in certain employer-employee relationships, not affecting the intended beneficiaries of the program, would be excluded from the reach of the statute. For example, question had arisen regarding whether the bill's language would forbid a farmer who was receiving benefits under the Agricultural Adjustment Act from discriminating upon the basis of race in the selection of his employees. Hearings, H.R. Comm. on Rules, H.R. 7152, 88th Cong., 2d Sess., 1964, p. 94; 110 C.R. 6545 (Senator Humphrey). The addition of section 604 to the bill as originally proposed clearly excluded the application of the Act to this type of situation.

The racial allocation of teachers in a segregated school system presents a situation patently different from that of racial discrimination in hiring by a farmer receiving federal farm benefits. The assignment of teachers to particular schools could be a most effective means of practicing racial discrimination against students who are the intended beneficiaries of a federally-supported educational program. Surely, if a school district pursued an official policy of assigning teachers with Class "A" teaching certificates only to schools attended by white students the discrimination against the Negro students would be obvious. Congress could hardly have intended by the language of section 604 to exclude such a gross discrimination from the reach of the statute, particularly in light of the specific reference made by Senator Humphrey that Title VI, as

it passed the House, would reach teacher segregation. As floor manager of the bill in the Senate, the Senator said (110 C.R. 6545):

"[T]he Commissioner might also be justified in requiring elimination of racial discrimination in employment or assignment of teachers, at least where such discrimination affected the educational opportunities of students. See Board of Education v. Braxton, C.A. 5, Jan. 10, 1964, 32 U.S. Law Week 2353.

"This does not mean that title VI would authorize a Federal official to prescribe pupil assignments, or to select a faculty, as opponents of the bill have suggested. The only authority conferred would be authority to adopt, with the approval of the President, a general requirement that the local school authority refrain from racial discrimination in treatment of pupils and teachers, and authority to achieve compliance with that requirement by cutoff of funds or by other means authorized by law."

The conculusion that the original purpose of including faculty desegregation was not affected by the addition of section 604 is further strengthened by portions of the legislative history emphasizing that the added section was not intended to affect the substance of section 601. For instance, Senator Humphrey, in introducing the Dirksen-Mansfield substitute, which added section 604, said that "[t]his provision is in line with the provisions of section 602 and serves to spell out more precisely the declared scope of coverage of the title." In the same speech he stated (110 C.R. 12714):

"We have made no changes of substance in Title VI. . . . We have made several minor adjustments and, in addition, we have modified the language to make explicit the declared intention of this title."

The fact that the language of section 604 is worded broadly enough to reach all employment discrimination does not justify defeating the basic and overriding purpose of Title VI. The ordinary rule of statutory construction is that exceptions or exemptions in a statute should be narrowly construed so as not to defeat the primary purpose of a statute. United States v. McElvain, 272 U.S. 633, 639 (1926); Spokane & Inland Empire R. Co. v. United States, 241 U.S. 344, 350 (1916); Korherr v. Bumb, 262 F. 2d 157, 162 (C.A. 9, 1958).

For the foregoing reasons we conclude that section 601 applies to the desegregation of faculty and staff of school systems that have been racially segregated, and that section 604 does not preclude such application. Sincerely,

RAMSEY CLARK, Deputy Attorney General.

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,

OFFICE OF EDUCATION, Washington, D.C., May 20, 1966.

AUTHORITY FOR THE 1966 SCHOOL DESEGREGATION GUIDELINES

I

Title VI of the Civil Rights Act of 1964 requires the absence of discrimination against persons on the ground of race as a condition for the receipt of Federal financial assistance. Section 601 of the Act states:

"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."

Section 602 of the Act directs each department which extends Federal assistance to issue regulations to carry out the provisions of Section 601. Section 602 of the Act states in part:

"Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of Section 601 with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President ***"

As required by Section 602, the Department of Health, Education, and Welfare has issued its Regulation. It was approved by the President on December 3, 1964, and on December 4, 1964, published in the Federal Register. (29 Federal Register 16298; 45 C.F.R., Subtitle A, part 80)

Section 80.4 of that Regulation provides that recipients of Federal assistance shall submit an assurance that its program will be conducted without discrimination based on race. Section 80.4(a) states in part:

"(a) General. (1) Every application for Federal financial assistance to carry out a program to which this part applies, * * * and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this Regulation."

Under this provision, applicants can qualify for Federal financial assistance only if all racial discrimination in their programs is eliminated.

Under the Regulation, however, an exception is made for elementary and secondary school systems because of the special problems in desegregation which they present. They may qualify for Federal assistance if they submit to the U.S. Commissioner of Education a plan for desegregation which the Commissioner determines to be adequate to accomplish the purpose of Title VI. The relevant part of the Regulation (Section 80.4 (c)) states:

(c) Elementary and Secondary schools. The requirements of paragraph (a) *** of this section with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or school system ** * (2) submits a plan for the desegregation of such school or school system which the Commissioner of Education determines is adequate to accomplish the purposes of the Act and this Regulation and provides reasonable assurance that it will carry out such plan; * * *”

In order to inform school officials of the standards which a desegregation plan must meet in order to be determined adequate by the Commissioner, the Commissioner has issued school desegregation guidelines. The first guidelines, (General Statement of Policies under Title VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary and Secondary Schools) were issued in April 1965. Revised guidelines were issued in March 1966 (Revised Statement of Policies for School Desegregation Plans under Title VI of the Civil Rights Act of 1964).

The standards for desegregation plans stated in the guidelines follow closely the provisions of Federal court decisions ordering the desegregation of separate schools maintained for Negro and white children.

II

Many persons, including some school superintendents and school board members, have an erroneous view of the connection between the requirement of Title VI, as explained in the guidelines, and the law as stated in the school desegregation cases decided by the Federal courts. These persons argue that Title VI, by its terms, applies only to discrimination, but not to desegregation, which according to this view, is a different matter. Accordingly they insist that they may properly maintain separate schools for whites and Negroes, with all-white and all-Negro faculties, as long as any requests by Negro children for admission to a white school are granted. They maintain that any provisions of the guidelines which require further desegregation are a usurpation of power by the Office of Education. These persons also argue that the guidelines are improper because they make no provision for the particular conditions and opinions which may be found in individual school districts. They believe that school officials should be able to shape their desegregation plans so as to be more in accord with the sentiments of their community.

These views, which are incorrect, have been the source of much of the misunderstanding about the propriety of the guidelines, and the responsibility of every school system to establish one system of schools for all its children.

III

Title VI was proposed to the Congress as part of the Civil Rights Act because Federally supported programs and activities, such as schools and hospitals, were still being run on a segregated basis, in defiance of the Supreme Court holding that "separate but equal" facilities were unconstitutional. In the debates on

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