EDUCATION AND ASSISTANCE TO THE BLIND

MONDAY, MARCH 16, 1959

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON SPECIAL EDUCATION

OF THE COMMITTEE ON EDUCATION AND LABOR,

Washington, D.C.

The subcommittee met at 10:15 a.m., pursuant to recess, in room 219, Old House Office Building, Hon. Carl Elliott (chairman of the subcommittee) presiding.

Present: Representatives Elliott, Giaimo, Green, Daniels, and Lafore.

Present also: Representative Bailey.

Staff member present: Miss Mary P. Allen, subcommittee clerk.

Mr. ELLIOTT. The subcommittee will be in order.

We are happy this morning to have testify before the subcommittee the gentleman from Ohio, Mr. Jackson Betts, who will testify with respect to his bill, H.R. 4787.

You are recognized, Mr. Betts, and may proceed in any manner you see fit.

STATEMENT OF HON. JACKSON E. BETTS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Mr. BETTS. Mr. Chairman, as you mentioned, I introduced H.R. 4787, which I understand is one of more than 50 bills under consideration by your committee for the purpose of providing consultation with blind organizations in the administrative process of Government.

I wish to state to the chairman and the committee that I introduced this bill at the request of some of my blind friends in my district, whose judgment I respect very highly, after I had discussed this prob lem with them. Since I understand that there are other bills of this nature, and I assume you have heard testimony on these bills, I would be very happy if I could just submit my statement at this time for consideration of the committee.

Mr. ELLIOTT. Without objection, the statement of the gentleman from Ohio will be extended at this point in the record.

Mr. BETTS. Thank you, Mr. Chairman.

Mr. ELLIOTT. Thank you, Mr. Betts.

(The statement referred to is as follows:)

STATEMENT OF JACKSON E. BETTS, MEMBER OF CONGRESS, OHIO, ON BEHALF OF

H.R. 4787

Mr. Chairman and members of the subcommittee, my name is Jackson E. Betts, and I represent the Eighth District of Ohio. I appreciate the opportunity to speak briefly on behalf of my bill H.R. 4787, which I understand is

1 of more than 50 bills under consideration by this committee for the purposeof providing consultation with blind organizations in the administrative process of government at all points where their vital interests are affected.

Some of my blind friends whose judgment I respect have discussed this problem with me and asked that I introduce this bill. The views I express herein represent the thinking of these persons.

The Congress has in the past provided ways of assisting the blind men and women of America by adopting legislation to aid them in their financial need and to increase employment opportunities through rehabilitation. These programs are administered in the various States on a Federal-State cooperative basis. A substantial part of the money for these programs is Federal money. It appears to me that these programs would more clearly meet the problems of theblind if administrators would at all times seek the advice of and consult with all possible persons and groups of persons possessing knowledge and experience that would advance these programs toward the goals intended by Congress. I am advised, however, that this is not being done. The blind themselves the beneficiaries of these welfare programs are not being consulted either directly or through their chosen spokesmen.

The first provision of the bill which I and others have introduced would correct this. It directs that the Secretary of Health, Education, and Welfare advise and consult to the fullest extent practicable with authorized representatives of organizations of the blind in the formulation, administration, and execution of programs of aid and rehabilitation for the blind.

The bill further provides that State agencies using Federal funds in their programs for the blind shall be encouraged to consult with the blind of their State on matters of policy and procedure in connection with these programs.

This provision of the bill directing that the blind be consulted on matters which concern them does not deny to any other person or group the right to make their views known on these same subjects. No source of help and assistance should be overlooked or neglected when policies and programs of such vital importance are involved.

The first section of the bill is not intended as a criticism or censure of the fine work and tireless service rendered by numerous individuals and agencies engaged in work for the blind. All that the provision comprehends is that the views of the blind themselves not be ignored.

Mr. Chairman and members of the subcommittee, it is my earnest hope that you will see fit to act favorably upon H.R. 4787 and similar bills so that the right of blind Americans to organize and to be consulted may be protected from all future encroachments.

Mr. ELLIOTT. We are happy to have the privilege of having the gentleman from West Virginia, Mr. Bailey, the chairman of the Subcommittee on General Educational Problems, of the House Committee on Education and Labor.

May I say to my friend from West Virginia that we are very happy to have him and that he may proceed in any manner that he sees fit.

STATEMENT OF HON. CLEVELAND M. BAILEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST VIRGINIA

Mr. ELLIOTT. Mr. Bailey, will you tell us who the gentlemen are who are accompanying you?

Mr. BAILEY. Mr. Chairman, gentlemen of the committee, for the purpose of the record I am Congressman Cleveland M. Bailey of the Third West Virginia District. This morning I am accompanied by Mr. C. C. Cerone of Wheeling, W. Va., State Chairman of the Association of the Blind of West Virginia, on my left.

On my right is Victor Gonzalez, mayor of Anmoore, W. Va.

At the conclusion of my formal statement each of these would liketo make a very brief statement.

Mr. ELLIOTT. The gentleman from West Virginia may proceed..

Mr. BAILEY. I appreciate this opportunity to appear before you in support of H.R. 1097 and the numerous other bills under consideration for the purpose of protecting the blind people of our Nation in their exercise of the rights of association and of consultation.

During the course of these hearings, I am aware, critical questions have been raised concerning the two sections of the Bailey bill. The questions have indicated some confusion in the minds of the committee; the answers have indicated some confusion in the minds of the witnesses. May I try my hand at clarification?

The questions, it seems to me, are substantially these: Do the blind have the right to organize? If so, is the existence of the right demonstrated by the fact that the blind are in fair degree organized show that that right has not been interfered with? If the Bailey bill is passed, will there be an "eating away" at State sovereignty? Does the right of consultation stand upon the same footing as the right to organize?

The first answer to be made is that the blind, along with all other citizens indeed, along with all other persons in the United Statesdo have the right to organize. That right exists independently of whether the blind have or ever will exercise it. Its source is the Constitution of the United States. It is embodied in the 1st and the 14th amendments.

Explicitly set forth in the first amendment is the right of the people peaceably to assemble and to petition the Government for a redress of grievances. If there were no more than this, these words alone would be sufficient to guarantee the right of association and organization for purposes of public action. But there is also the right of organization which is implicit in the twofold guarantee of speech and of religion. The language of the amendment constitutes an unequivocal guarantee both of freedom of conscience and of opinion. But what would either freedom amount to without the right of congregation and association which provides the necessary framework for worship, on the one hand, and for speech, on the other? Just as the free exercise of religious worship requires the right freely to congregate and to organize churches, so the freedom of speech requires the right to organize secular congregations for purposes of self-expression. For the speech which is here encouraged is the speech of public discussion, carried on through social gatherings and voluntary associations.

No clearer affirmation of the inseparability of this right of organized assembly and group petition has yet been made than in these words of Justice Rutledge, speaking for the Supreme Court of the United States in the case of Thomas v. Collins:

It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights, and therefore are united in the first article's assurance. * ** The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones. And the right of free speech and a free press are not confined to any field of human interest.

The development of the doctrine of the constitutional right to organize the freedom of association-has been delineated in detail by Prof. Robert A. Horn, of Stanford University, in a recent scholarly

book on constitutional law, entitled "Groups and the Constitution," the "central theme" of which is

that freedom of association is one of the most important civil liberties guaranteed by the Constitution of the United States, that we already have substantial corpus of constitutional law on the freedom of association, and that the rapid creation of this body of law in the 20th century by the U.S. Supreme Court is one of the most significant aspects of American constitutional development.

Mr. Chairman, may I hand you a copy of this book for the committee files?

So far I have been speaking about the first amendment.

The Bailey bill is based not only upon the 1st but also upon the 14th amendment, since it restrains official action by State as well as by Federal officials. The 14th amendment, as everybody knows, has been held for 30 years by the U.S. Supreme Court to subsume the provisions of the 1st amendment. The 14th amendment is in explicit language a prohibition upon the States.

No State

it declares

shall deny to any person within its jurisdiction the equal protection of the laws, nor shall any State deprive any person of life, liberty, or property without due process of law.

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the due process clause of the fourteenth amendment, which embraces freedom of speech.

In view of the explicit, mandatory, and inescapable language of the 14th amendment, how can it be said, as it has been said in these hearings, that the Bailey bill would constitute an interference with State rights? Do the States have the right? Is it a State's right to violate the Constitution of the United States? This quesion was settled long ago in this country. The Alien and Sedition Act at the turn of the 19th century; the Hartford Convention; the Nullification episode in the 1830's, all firmly decided-and the Civil War confirmed that the meaning of the constitutional prohibitions is to be finally determined by the U.S. Government, that it is the duty of the U.S. Government to supply protection of constitutional rights, and that the States are absoluely bound by such Federal determinations and implementive

actions.

Constitutional rights are not self-executing. Virtually all of the provisions of the Constitution requires the support of special laws in order to gain enforcement. They are made effective by congressional statutes supplying the enforcement machinery and by Executive action. Indeed, if this were not so all of our murder laws would be useless and redundant, because the Constitution guarantees the right to life. Similarly, all of our laws protecting property might be discarded, because the Constitution guarantees the right to property.

For a more concrete example, we may look at the 13th amendment. It says that neither slavery nor involuntary servitude shall exist in the United States except as a punishment for crime. This amendment as a matter of fact comes as near to being self-executing as any constitutional provision can be. Yet in 1867 Congress passed the antipeonage statute. Peonage is involuntary servitude. The Con

stitution forbids involuntary servitude except as a punishment for crime. Congress did not say that peonage exists only in a small portion of the United States, especially in New Mexico and surrounding territories. Congress said rather that no State or other governmental organ has a right to violate the Constitution. That the violation might not be universal throughout the country was then, and is now, of no consequence.

So also with the 14th amendment. Its fifth section says that Congress shall enforce this amendment by appropriate legislation. Pursuant to this provision, Congress passed statutes to enforce the 14th amendment in the 1860's and 1870's. It passed a new such statute in 1957. The 14th amendment is the very amendment that forbids the States to deprive any person of the right to organize; presumably the opponents of the Bailey bill would not wish to argue that the word "person" used with qualification in the 14th amendment really is qualified by the adjective "sighted." Mr. Chairman, the Bailey bill is clearly appropriate legislation" under the provisions of the 14th amendment.

I believe in States rights. It is important for government to be close to the people. It is important that local and individual initiative be encouraged. The Bailey bill, however, will not eat away State sovereignty. It will not violate States rights. It will simply protect the constitutional rights of the people.

What about the right to consult? Does it stand upon the same. constitutional footing as the right to organize? Here the answer must be "no." It is, however, closely related to the effectuation of the very constitutional rights we have been discussing. It may be that what has been referred to as "the right to be heard"-which may be expressed in constitutional terms as the right of petition, in administrative terms as the right of consultation, and in quasi-judicial terms as the right of appeal in a fair-hearing process-is not quite so self-evident as the right to organize. At the level of the caseworker and of the fair-hearing appeal, this right is predominantly but not exclusively an individual right; at the constitutional, congressional, and administrative level, it is predominantly (but not exclusively) a right which in practice can only be exercised collectively. Because this right to be heard is less a part of our common language and accepted belief than the right to speak and the right to organize, let me take a moment to spell out what I take to be its indispensable function in the governmental process.

Despite its somewhat less than universal recognition, few principles of democratic government and public administration are in fact more firmly established or more widely practiced than this principle of the right to be heard-taken to mean the right of citizen groups sharing a common interest to be consulted in the formulation and execution of programs directly affecting them. The literature of public administration is replete with affirmations of the principle. A typical comment is that of Prof. Avery Leiserson:

There are always either formal or informal relationships between group organizations and official bureaucracies. Furthermore, it is perfectly clear that in the sense of the right to be heard, to be consulted, and to be informed in advance of the tentative basis of emerging policy determination, group participation is a fundamental feature of democratic legislation and administration ("Interest Groups in Administration," in "Elements of Public Administration").