The need for the recommended measures is so well documented by the Commission that further evidence is hardly necessary. I strongly urge this subcommittee and the full committee to report favorably H.R. 10783 at the earliest possible date so that action on this vitally necessary measure may be taken during this session of Congress.

STATEMENT OF HON. JACOB H. GILBERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. Chairman and members of the Committee on Education and Labor, your committee has under consideration my bill. H.R. 668, which would provide that Federal aid be withheld from schools which discriminate between students by reason of their race, color, religion, ancestry, or national origin.

I appreciate the opportunity to speak in favor of this vitally needed legislation and to urge your support and favorable action.

In his message to the Congress concerning aid to education, President Kennedy stated: "Our progress as a Nation can be no swifter than our progress in education. Our requirements for world leadership, our hopes for economic growth, and the demands of citizenship itself in an era such as this all require the maximum development of every young American's capacity." Please note the words "every American." They include Negroes, Puerto Ricans, and members of all minority groups in the United States now denied educational opportunities.

Your committee approved a $3.3 billion bill to help build public school classrooms and pay their teachers. There is another bill pending, providing for Federal aid to higher education which would cost many additional millions. Last year the National Defense Education Act was extended and broadened and this authorized Federal expenditure of more than a billion dollars. In 1961, the Federal Government was obligated to expend $487,704,470 under our various education grants-in-aid programs. We should now take necessary action to insure that all the young people of this Nation share equally in the benefits such funds are meant to provide.

The Supreme Court has decreed that racial segregation in the public schools is inherently unequal, and has observed that the opportunity for education where the State has undertaken to provide it, is a right which must be made available to all on equal terms.

Under the segregated school system which has prevailed in many States. Negro children are denied the educational opportunities to which they are entitled. Lack of educational opportunity is one of the crucial factors handicapping the Negro in his struggle for equality. Records show that many are prevented from attending school at all; their schools are, in the main, small and substandard, their teachers do not have the training and teaching background demanded by schools of the white children. Negro children in numerous localities are required to travel many miles in order to attend the nearest Negro school. Obstacles of all kinds have been placed in the way of the Negro to prevent him from gaining the necessary learning which would enable him to reach his full potential as an educated person.

The practice of denying Negroes admission to institutions of higher learning is equally shocking. The report of the Civil Rights Commission dealing with denial of the equal protection of the laws in public higher education in 1960 is indeed an indictment of the whole American community. The Commission reported great progress in the past 20 years in eliminating denials of equal protection, but discrimination continues to be the pattern in the Deep South. and Negroes are the principal victims of such discrimination. The Commission reported that in Alabama, Georgia, Mississippi, South Carolina, Florida, and Louisiana, education for the Negro is indeed separate and unequal, not only at the college level but also in preparation for college. The Commission stated that "this inferior preparation of the Negro high school student in the segregated high school of the South helps perpetuate the problem of segregation and discrimination at the college level" and that "educational deprivation of Negroes is similarly transmitted from the educationally, economically, and culturally deprived parent to the child." It is reported that the United States has permitted southern legislatures to create separate land-grant colleges for Negroes and to channel almost all Federal funds for specific programs in such institutions to the separate white colleges. In the allocation of Federal money for research, for college housing, and for educational institutes, white colleges and white students have been altogther disproportionate beneficiaries.

The Commission report concludes that "the total impact of Federal aid to public higher education in these States has been to increase the discrepancy between the amounts spent by the States themselves for white institutions as compared with Negro institutions.

The Commission made a clear recommendation that the Federal Government end financial aid to publicly controlled institutions of higher education which continue to discriminate on grounds of race, religion, or national origin.

Congress should provide that all Federal grant-in-aid programs involving education are to benefit all our youth, not just one segment of our population. The discrimination now prevailing in our institutions of learning based on color, race, religion, or national origin, must be eliminated.

I maintain that continued Federal support of educational institutions which do not comply with constitutional principles is unconscionable, and such support should be stopped without further delay.

STATEMENT OF HON. EMANUEL CELLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

At the outset, I wish to express my gratitude to the members of this committee for the opportunity to present my views in support of my bill, H.R. 6890, to provide for the desegregation of public schools with all deliberate speed, including nationwide first-step compliance by 1963, and for other purposes.

The genesis of the bill which is now before you is to be found in the legislation which Senator Douglas, of Illinois, and I sponsored in February 1958. At that time many Senators joined Senator Douglas in the proposal, as did several House Members, by introducing companion legislation. Unfortunately, to date, legislation relating to the desegregation of public schools has not received favorable consideration. In every Congress since the 85th I have introduced similar proposals. The bill which is before you today, viz, H.R. 6890, is a refinement of the 1958 proposal and was introduced in the Senate by Senator Clark, of Pennsylvania.

Although after almost 80 years of inaction in the field of civil rights, Congress in 1957 and in 1960 did enact constructive legislation. Those acts were designed to implement voting rights.

I believe a real area of need exists for Federal assistance to those States and localities which, prior to the desegregation school cases in 1954, and those which are now complying with the law of the land, have undertaken desegregation. Almost 8 years have passed since the Supreme Court in its historic decision decided that segregation in public schools is a denial of equal opportunity and is in violation of the 14th amendment.

The progress which has been made in eliminating segregation in public elementary and secondary schools throughout this Nation has been very slow. Since the 1954 school segregation decision, 2,062 school districts in the South that enroll both white and Negro pupils had not even started to comply with the requirements of the Constitution. These included all the districts in Alabama, Georgia, Mississippi, and South Carolina. All but one in Florida and one in Louisiana have done likewise. According to the Civil Rights Commission report, some of the 75 that have initiated desegregation have barely started a 12-year progression. During the period 1959-61 only 44 school districts in the 17 Southern and border States had initiated desegregation programs. Of those, 13 had acted under court order and 15 others were being pressed for action by pending litigation.

Here, I should state, however, that the problem is not that of Southern and border States only. I, in the North, must frankly concede that in my section of the country we have our problems also. I merely point out to the New Rochelle case in my State of New York. It is also commonly recognized that this problem exists in the West and the Southwest. Thus, the problem is truly national in scope, although it is most severe in the South. Nevertheless, when the Court spoke it spoke to all sections of our Nation, just as the proposal before you speaks to all of the Nation.

I am sure that you, as members of this committee, are as well acquainted with the problems which have been imposed upon those local agencies who sought to comply with the desegregation decision. The legislative resistance to compliance with that decision has taken many and varied forms. We are all familiar with

the so-called interposition doctrine, the massive resistance plan, pupil placement laws, tuition grants, and the closing down of schools which attempted to desegregate.

Shortly after the 1954 decision, even though the Court had ordered desegregation to take place with all deliberate speed, many sincere people pleaded for time in order to accomplish this changeover. The advocates of gradualism argued sincerely that the impact and ramifications on the mold of life and the local mores of some communities could be devastated. Many supporters of the Supreme Court decision, understandably, accepted this plea. However, based on the facts as we find them today after nearly 8 years of gradualism, I am convinced that the need for Federal intervention to carry out the mandate of the Court must be accomplished by legislation. There is an urgent need for positive action now. We have depleted all the resources short of this remedy, including persuasion and understanding.

I do not expect enactment of a proposal such as I support here today to be a cure-all panacea in this field. I recognize that no one pattern of desegregation is adaptable to all communities. Any plan which is adopted must include careful planning and community education in order to be a success. This calls for technical knowledge and expertise. Such personnel means additional costs and it is for these purposes that my proposal provides for technical and financial assistance to those State and local agencies in their attempt to comply with the desegregation decree of the Supreme Court.

My bill provides a plan to be used by all public schools that are not desegregated with a design to speed the segregation by requiring first-step compliance by 1963-64 school year in authorizing the Secretary of Health, Education, and Welfare to provide Federal technical and financial assistance. Finally, it also provides for the enforcement of these provisions by the Attorney General of the United States through civil actions in the appropriate district courts of the United States.

Today, the United States has had placed on its shoulders the responsibility of world leadership. In the past few years many new nations have come into being, nations peopled by individuals of color different from ours. Through our foreign aid programs we preach the dignity of man and you may be sure that our message is evaluated in the light of the manner in which we Americans treat our own minorities who happen to be non-white in color. Often, Americans abroad are asked, "Do you really practice what you preach?" Certainly, there can be nothing more basic to equality of treatment than the education of children. Finally, may I repeat that the time to act is now. I believe the way to act is the procedure set forth in my bill, H.R. 6890. It is reasonable, but effective. I am firmly convinced that Congress can no longer afford to disregard this blotch on our democracy. Thus, I ask your favorable consideration of the proposal, H.R. 6890.

INTEGRATION IN PUBLIC EDUCATION PROGRAMS

MONDAY, APRIL 16, 1962

HOUSE OF REPRESENTATIVES,

AD HOC SUBCOMMITTEE ON INTEGRATION
IN FEDERALLY ASSISTED EDUCATION OF THE
COMMITTEE ON EDUCATION AND LABOR,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:40 a.m. in room 429, House Office Building, Hon. John H. Dent presiding. Present: Representatives Dent, Green, and Holland.

Also present: Dr. Deborah Wolfe, education chief, and Howard Gamser, chief counsel.

Mr. DENT. The Subcommittee on Integration in Federally Assisted Education will now open its hearings.

The first witness today is Mr. Burke Marshall, Assistant Attorney General in Charge of Civil Rights.

Mr. Marshall, you may proceed in any fashion that you feel will give the committee the best information that you have for us.

STATEMENT OF BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL IN CHARGE OF CIVIL RIGHTS, U.S. DEPARTMENT OF JUSTICE

Mr. MARSHALL. Well, I have a prepared statement, Mr. Chairman. Shall I read it?

Mr. DENT. Just whatever you want to do, sir.

Mr. MARSHALL. Mr. Chairman, I am happy to appear before you today to give the views of the Department of Justice on proposed legislation to expedite the desegregation of public educational facilities.

Some of these measures set a target date for compliance with the Supreme Court's school decisions; empower the Attorney General to bring actions to effect such compliance; and provide for technical and financial assistance by the Secretary of Health, Education, and Welfare to schools carrying out a desegregation program. These are Congressman Celler's bill, H.R. 6890, and six identical measures, and Congressman Kowalski's bill, H.R. 10783, which embodies the compliance and financial assistance recommendations of the Civil Rights Commission. The Department will comment in some detail on these proposals later and for that reason I shall not take the committee's time for extensive and detailed comment now.

We favor the objective and the principle of these measures. Eight years after the Brown decision there are still some 1,900 officially segregated school districts in the United States. In three States not

a single school district has moved toward even token desegregation. Congressional action giving effect to the Brown ruling would be most helpful if there is to be significant progress in guaranteeing hundreds of thousands of children their constitutional rights.

These bills would make school districts and local officials initially responsible for plans and action. I strongly believe that this is the proper approach; that every effort should be made to avoid placing the full burden of desegregation on the courts.

A second group of bills deals with the expenditure of Federal funds in support of segregated institutions. These are H.R. 9824, H.R. 10056, and H.R. 668.

H.R. 9824 would amend the second Morrill Act, which provides for Federal financial support for land-grant colleges established by the States and Territories in accordance with the provisions of the first Morrill Act.

Section 1 of the second Morrill Act prohibits the payment of funds to any State or Territory for the support of a college which makes a distinction of race or color in the admission of students. This prohibition against racial discrimination, however, is subject to the proviso that separate colleges for white and Negro students constitute compliance if the funds received are equitably divided between them. H.R. 9824 would eliminate that proviso. We support this bill.

The second Morrill Act was enacted in 1890. Court decisions, later confirmed by the Supreme Court's decision in Plessy v. Ferguson, appeared to mean that separate but equal public educational facilities satisfied the command of the 14th amendment. The separate-butequal doctrine was made virtually inapplicable to higher education by a number of decisions in the 1940's. It was wholly repudiated in 1954, when the Supreme Court held in Brown v. Board of Educa tion that racial segregation in public education is prohibited by the 14th amendment, and held in Bolling v. Sharpe that such segregation violates the due-process clause of the 5th amendment.

Thus, while the second Morrill Act proviso authorizing Federal aid for the support and maintenance of racially segregated public colleges was supported by court decisions at the time it was enacted, under present law the proviso expressly recognizes institutions operated in a manner that is plainly unconstitutional. It sanctions public school admission policies which are in violation of the Constitution, and it places the financial support and the prestige of the Federal Government behind racial discrimination. Whatever else can be said, these practices are patently contrary to the principles of the 5th and 14th amendments.

The need to administer a provision of this nature places the executive branch in a most difficult and delicate position. The executive, like Congress, is bound by the constitutional decisions of the Supreme Court. But it is not the responsibility of the executive to pass upon the constitutionality of statutes enacted by the Congress, once they have been finally approved by the President. In my judgment, Congress has a primary responsibility to remove provisions which appear to be unconstitutional under the decisions of the Supreme Court, and which are in any event contrary to the public policy of the Nation, just as it is the responsibility of Congress to refrain from enacting unconstitutional legislation in the first place.