Page images

economic coercion against Negro voter registrants. We do know that the Attorney General, testifying before a subcommittee of the House Judiciary Committee on the proposed Voting Rights Act of 1965, stressed the need for new tools to combat existing economic intimidation and urged adoption of a criminal sanction probibiting intimidation (including, economic intimidation) of persons voting or attempting to vote as a “substantial deterrent to intimidation." Hearings before Subcommittee No. 5 of the House Judiciary Committee on H.R. 6400, March 18, 1965, at p. 11. It is certainly clear that large numbers of Negro citizens have been encouraged to register by the 1965 Act. Without convincing proof that the present criminal sanction has been without effect in deterring economic reprisal, elementary caution would dictate that the sanction be retained.

Repeal of the criminal sanctions of the Voting Rights Act applicable to intimidation involves still other problems.

"Voting" is defined in the Voting Rights Act as including the right to have one's ballot counted and included in the appropriate totals. It is also defined in that Act as extending to elections to party office. It is not clear that a court would read these terms into Section 501(a) or 501(b), which are criminal provisions to be strictly construed. Accordingly, threats of violence aimed at persons participating in precinct meetings, circulating petitions for nominations or challenging failures to tabulate may not be reached under Title V of the proposed 1966 Act.

In a prosecution under the Voting Rights Act for violating Section 11(b), it is not necessary to establish a racial motive. Under Section 501(a)(1) of the proposed 1966 Act, however, it is apparently necessary to prove that the injury, intimidation or interference, or attempted injury, intimidation, or interference was "because of * * * (the victim's] race, color, religion, or national origin * * * Something akin to a racial motive also would have to be proven under Sections 501(b)(1) and 501(b)(2). Under Section 501(b)(1), the Government would have to establish an intent to discourage the person interfered with from participating in voting or other protected activity without discrimination on account of race, color, religion or national origin. Section 501(b)(2) requires an intent to intimidate a person because he has "so participated" in the protected activity, i.e., participated "without discrimination on account of race, color, religion or national origin.”

In his testimony before Congress in 1965, the Attorney General urged the adoption of the criminal sanction against intimidation now contained in the Voting Rights Act on the ground that proof of purpose in civil litigation under 42 U.S.C. $1971(b) had "rendered the statute largely ineffective.” Title V of the proposed 1965 Act would appear to reestablish a "purpose” requirement similar to that which the Department of Justice has found difficult to establish in the past-only this time the Department would have to prove purpose beyond a reasonable doubt.

We see no justification for withdrawing criminal sanctions which presently exist, substituting other criminal sanctions which are not as comprehensive or effective, and thereby increasing needlessly the likelihood of economic intimidation and physical violence now restrained by the threat of Federal prosecution.

With respect to State jury selection, dealt with under title II, the Commission found in 1961 that:

The practice of excluding Negroes from juries on account of their race still persists in a few States. The burden of combating such racial exclusion from juries now rests entirely on private persons-almost invariably defendants in criminal trials.

Accordingly, the Commission recommendedthat Congress consider the advisability of empowering the Attorney General to bring civil proceedings to prevent the exclusion of persons from jury service on account of race, color, or national origin.

S. 3296 would do that, and in addition would cover discrimination based on religion, sex, and economic status. The Commission endorses these additions.

Although the enforcement provisions of title II are appropriate, I believe they could be strengthened.

Section 201 creates a right which it vests in potential jurors. Under section 204 the Attorney General and private litigants may bring injunctive proceedings to enforce the right. Criminal defendants are empowered to enforce the provisions of the law. We recommend that plaintiffs and defendants in civil litigation in State courts also be permitted to enforce the nondiscrimination right, as they can under section, 1867(b) of title I in Federal cases.

65–506-66-pt. 1-24

Sections 204 and 205 provide suitable discovery proceedings and impose the requirement of preserving jury records. A further provision should be added requiring the recording of racial data.

Establishing the race of each name upon relevant jury records would be an impossible requirement for most private litigants. The Attorney General outlined to the House Committee on the Judiciary the extreme conditions of jury exclusion in Lowndes County, Ala., found by the district court on February 7. In preparing that case the Department of Justice expended extraordinary effort to sift through the thousands of names of persons appearing on jury records and to establish the race of each person on those records. In Mississippi, where State law prohibits recording the race of registered voters, the Justice Department has spent thousands of man-hours establishing the racial identity of persons on voting rolls in litigation to enforce voting rights. Voter rolls serve as a basis for jury selection in Mississippi.

We recommend that whenever a prospective juror is called to demonstrate his qualifications for jury service, the State should be required to record his race, color, religion, sex, and national origin. The relevant provisions of title I, section 1865(a), impose this requirement with respect to Federal juries. It is equally necessary in title II in order to make the discovery procedures and recordkeeping requirements of sections 204 and 205 meaningful.

Lastly, I believe title lI would be improved by further facilitating proof of jury discrimination. Consideration should be given to provisions such as those contained in the pending Douglas-Case bill (S. 2923) creating a rebuttable presumption of jury discrimination where there is a recent court decree finding such discrimination or disproportionately low participation of any protective class over a period of time.


Experience over the last 2 years demonstrates the need for refinement and extension of present civil remedies for the protection of Federal rights.

The Commission supports the proposal in title III to authorize the Attorney General to bring civil actions against public officials wherever such actions are necessary to desegregate public schools and other public facilities instead of limiting him to action only upon a signed complaint from a private party who is unable to bring suit. The burden should not rest upon citizens deprived of rights—whether or not they are indigent-to pit their resources against the far more formidable resources of the State or local government which is failing to comply with well-settled constitutional obligations.

We also particularly urge the enactment of section 301(b) of title III, which would authorize the Attorney General to institute civil actions against persons, whether or not they are public officials, who intimidate, threaten, coerce, or interfere with persons attending or helping others to attend public schools or any other public facility.

The Commission has found that fear, intimidation and harassment of Negro parents are still substantial deterrents to desegregation of public schools in the South. In a recent report on school desegregation in the Southern and border States, the Commission found numerous instances of intimidation, harassment and violent attacks on children and parents of children who attempted to attend formerly all-white schools. For example, in one county in Georgia, bottles, stones, toilet paper, and paint were thrown at the home of a family whose daughter was one of the first four Negro children to attend the county high school which formerly had been all white. The family of another of these four children had lived under such attacks for a year.

These families continued to send their children to the desegregated schools, but many others gave up. In another Georgia county, all of the Negro children who selected white schools under a desegregation plan approved by the Office of Education changed their choice. The father of one Negro student said that within 48 hours of submitting the choice form designating a white school, he was told by his employer, who was also his landlord, that he would lose his job and home if his child attended a white school. In a county in Mississippi, two families who had chosen white schools and had altered their choice were nevertheless evicted by their white landlords. This confirmed the belief of other Negro families in that county that they could not afford to send their children to the white schools.

Such acts of intimidation and harassment constitute an important reason why school desegregation in the Deep South continues to be restricted to token numbers of children. It was this finding that led the Commission to recommend legislation similar to that embodied in title III.

If this bill is enacted, the Attorney General will have the authority to bring civil suits for injunctive relief in the areas of voting, housing, jury selection, schools, public accommodations, and employment. But we think this sanction should be available against interference with the advocacy of racial equality. Title III should be expanded to give the Attorney General this additional authority.

We also recommend that Congress amend 42 U.S.C. 1983 to permit suits by private persons for injunctive relief against persons seeking to interfere with the exercise of rights specified in title V of the administration's bill. Section 1983 as presently written would be applicable to interference with title V rights only when such interference were under color of law. The decision of the Supreme Court in United States v. Guest, decided March 29, 1966, suggests that Congress has the power to permit suits by individuals for injunctive relief against private persons seeking to interfere with the exercise of these rights. Congress should exercise that power.

We also suggest a few additional amendments to the bill to improve existing civil remedies. Most of these proposals have been recommended previously by the U.S. Commission on Civil Rights.

1. We suggest that the administration's bill be amended to give persons who suffer physical injury or property loss as the result of exercising any of the specific rights protected by the criminal provisions of title V of the administration's bill, or as the result of urging or aiding others to exercise such rights, a right of action for money damages in Federal court against those responsible for the injury or loss. This

would provide a more effective remedy for assuring compensation to those who are injured by racial violence than is available under existing law. Sections 1938 and 1985 of title 42, United States Code, are inadequate because they are limited to actions against persons acting under color of law or pursuant to conspiracies to deprive individuals of protected rights.

2. In addition, we propose that 42 U.S.C. 1983 be amended to include a provision that any county, city or other local governmental entity which employs officers who deprive persons of rights protected by section 1983 should be jointly liable with the officers to persons who suffer injury or loss from the misconduct of such officers. This amendment-recommended by the Commission on Civil Rights in 1961 and again in 1965—would not only assure the recovery of sufficient funds to compensate for the loss, but would encourage local governmental entities to hire more responsible law enforcement officials. Several States, either by statute or judicial decision, already make local governments liable for the wrongful acts of their agents. But Federal remedies for violation of Federal rights should not be dependent on State law.

We regard these remedies as minimal steps which should not preclude a serious study of proposals to establish Federal administrative machinery to indemnify the victims of civil rights crimes.

3. The administration's bill also should be amended to allow private persons to obtain injunctive relief, notwithstanding the anti-injunction prohibitions of 28 U.S.C. 2283, wherever State prosecutions are brought against persons for properly exercising first amendment rights directed at obtaining equal treatment for all citizens regardless of race, color, religion or national origin. Such a proposal was made by the U.S. Commission on Civil Rights in its law enforcement report in 1965.

4. We also believe that equal treatment under law will become a reality sooner if law enforcement and the administration of justice become the work of all people, without regard to race. Negroes are still barred in many localities from becoming law enforcement officers and court officials. We urge that title VII of the 1964 Civil Rights Act be amended to cover discrimination in public employment in State and local governments and agencies. It is anamolous that under title VII as now written obligations are imposed upon private employers and unions that are not imposed upon government.


Title IV would outlaw discrimination in the rental, sale, financing, use, and occupancy of housing. In doing so, it would reaffirm and implement the national policy-declared as long ago as the Housing Act of 1949—to realize "as soon as feasible * * * the goal of a decent home and a suitable living environment for every American family.”

Studies by the U.S. Commission on Civil Rights over a period of years have provided ample support for its conclusion that "housing

seems to be the one commodity on the American market that is not freely available on equal terms to everyone who can afford to pay.” This limitation on availability of housing to nonwhites is not simply the result of individual decisions by individual homeowners and tenants who wished to segregate themselves.

* *


On the contrary, during the past 30 years we have seen the development of large new communities in metropolitan areas made possible by Federal assistance and constructed under Federal policies which encouraged the creation and maintenance of racially homogeneous areas. From 1935 until well after World War II-a period during which approximately 15 million new homes were built—the power of the National Government was employed openly to prevent integrated housing. Federal policies were premised upon the hypothesis that social and economic stability could best be achieved by keeping neighborhood populations as homogeneous as possible.

possible. For example, the 1935 and 1936 Underwriting Manuals of the FHA recommend the insertion of racial covenants in deeds and warned that "inharmonious racial groups" or "incompatible racial elements” would reduce the value of property. The 1938 FHA manual advised:

If a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same social and racial classes.

Even after 1950, prior to the issuance by President Kennedy of Executive Order No. 11063, none of the Federal agencies concerned with the extension of housing and mortgage credit took significant action to assure that the institutions they assisted-builders, mortgage lenders, and realtors-made their service available to all persons upon equal terms.

In large measure as a result of these policies, the increasing numbers of Negroes and members of other minority groups who have migrated to urban areas have found themselves confined largely to deteriorating areas of the central city. With little new housing available to them, they have paid exorbitant prices for housing that is overcrowded and often unsound-all contrary to the policy announced in the Housing Act of 1949 to eliminate substandard and other inadequate housing.

Other Federal policies—such as highway construction and urban renewal-have frequently aggravated rather than remedied this situation. In its recent hearing in Cleveland, Ohio, the Commission heard testimony from a Negro witness who was uprooted by highway construction from a $22,000 home he owned in a predominantly white section of the city. Unable to find a home in the same area and unaided by the government which had displaced him, he was compelled to move back to the slum area he had left 10 years earlier.

With this background the Federal Government has a clear responsibility to correct the injustice which it has done so much to create and perpetuate.

The guarantee to all citizens of free access to housing within their means is, we believe, essential to the fulfillment of other rights.

Senator ERVIN. Pardon the interruption. Didn't the event which you just described occur in the State of Missouri?

Mrs. FREEMAN. Cleveland. Cleveland, Ohio.
Senator ERVIN. Cleveland, Ohio?
Mrs. FREEMAN. Yes, sir.
Senator ERVIN. Thank you.

Mrs. FREEMAN. It has been suggested that access to housing is largely an economic matter, and there is a good measure of truth in this assertion. But jobs increasingly are being dispersed from the central city into smaller cities and suburban areas. Negroes barred

« PreviousContinue »