Page images

priate legal proceedings. When this power was first proposed to the Congress, it seemed strange to me that there was no requirement that the Attorney General establish by evidence that the complaint upon which he is acting is meritorious. For this reason I offered an amendment to require the finding of such evidence. I was able however, to convince only 36 Senators of the wisdom of that suggestion. It is incredible to me that now the Attorney General seeks authority to act on his own volition without evidence and without a complaint from an aggrieved person.

The Attorney General has stated that new title III would give him the tools to complete desegregation of our schools. He said the same thing in 1964 when other "tools" were created including: civil actions for appropriate relief by the United States where equal protection of the laws is denied any individual on account of race in the utilization of any public facility; authorization for technical assistance in the adoption and implementation of plans for desegregation; the establishment of training institutes to deal with special educational problems occasioned by desegregation; and the granting of power to Federal agencies to terminate or refuse assistance to any beneficiaries deemed not in compliance with regulations promulgated to insure nondiscrimination.

But all this, to the Department, is not enough. It now wants plenary, power to insure undefined integration of public facilities. Authority, clearly defined, by Congress does not seem to meet with the approval of the administration. This conclusion is obvious from its proposal of title III. Under section 302 the Attorney General could institute actions whenever and wherever he has reasonable grounds to believe that there is even a hint of his notions of “interference” with the enjoyment of equal protection of the laws in respect to any public school or facility. At the minimum, all he would have to do is to allege that he believes someone's right to equal protection of the laws has been somehow threatened.

(At this point Senator Javits entered the hearing room.)

Senator ERVIN. The subcommittee should remember that these constitutional rights are personal rights which do not belong to the public or to the Federal Government. In bringing suits without complaints he not only is ignoring this, but also is depriving individual citizens from exercising a constitutional right to attend the school or other public facility of their own choice.

I would like to add at this time that under the decisions of the Supreme Court of the United States as I construe them, that the right to determine whether one will exercise a constitutional right is a personal right belonging to the individual, and despite these decisions, this bill would undertake to deny to individuals the right to determine for themselves whether they wanted to exercise their constitutional rights or not, and permit the Attorney General to make that determination for them, even against their will in an individual case.

The alleged authority for this new-found power-unrestricted and uncircumscribed-was born in a case which was undergoing its first reading in the Supreme Court building when this bill was being drafted. This new power enables the United States to intervene in matters involving the 14th amendment but in which no State action has occurred In one stroke of the pen, a tragic effort to erase almost 100 years' precedent was made by concurring Justices in the case of U.S.


v. Guest. And just as quickly, the Justice Department seized upon it. Mr. Justice Harlan called the action of three of the Justices who joined the Court's opinion "extraordinary" in pronouncing themselves on the far-reaching constitutional questions. It is more extraordinary for the Justice Department to rely on this dictum to write a bill. I might add that to me as a lawyer it is rather queer for any judge to say if Congress should happen in the future to pass a law, and a case arising under that law should come before me for decision, I am going to decide it a given way, even before the law has been passed, even before the case has arisen, and even before I have heard the evidence.

Before passing to another matter, I think it should be noted at this point that the findings which enable the Attorney General to institute civil actions under title III are made crimes under title V and punishable by $1,000 fine or imprisonment for not more than 1 year. Among others, title V includes intimidation or attempts to intimidate. It does not include, I am happy to observe, a "threat to threaten" or a "threat to intimidate,” as does title III. I might state at this point that title III is to me a violation of the words of the writer of the Book of Ecclesiastes that there is nothing new under the sun. This is the first time so far as I know that anybody has ever proposed that there be legislation to punish a man for a “threat to threaten,” and I would commend a rereading of title III to the Justice Department to see whether the Justice Department really does want Congress to pass a law to deal with threats to threaten.

In recent months it has come to the attention of many of us that important health, education, and welfare programs are being placed in jeopardy by an effort on the part of certain Federal officials to correct so-called racial imbalance. I hasten to add that Congress must share the blame because the provisions of its legislation are vague and easily misunderstood.

I have introduced on behalf of myself and Senator Fulbright an amendment to the 1964 act in the form of a new title VI to S. 3296 with three basic purposes in mind. First, it is necessary to draw a clear definition of discrimination which would be understood by all concerned.

Second, routine and established adjudicatory practice should be instituted in the withholding procedures under title VI of the 1964 Civil Rights Act. Finally, no persons, otherwise eligible for benefits afforded by Federal legislation, should be denied these benefits simply because the vendors of Federal assistance may fail to comply with arbitrary guidelines established to insure an absence of discrimination on the basis of race or color.

As with other proposed legislation we are discussing, I hope the subcommittee can elicit testimony which will improve the amendment. Technical and clarifying changes which may be necessary have already been called to my attention. That we must enact its substance, however, is clear.

The need is apparent from the recent pronouncements of the U.S. Commission on Civil Rights. The Commission stated:

The legislative history of title VI does not make clear what relationship, if any, was contemplated by Congress between the standards to be established by the Office of Education and the body of judicial decisions in the area of school desegregation.

65-506—66/pt. 1-45

[ocr errors]

Federal legislation concerning desegragation in education has been promulgated as a result of the mandate from Brown v. Board of Edcuation. Congress, as well as the executive branch, apparently at one time or another has listened to the Federal judiciary. But since enactment of the 1964 act, the executive branch, at least, has ignored it.

Notwithstanding a multitude of decisions following the Brown case and the 1964 act, the U.S. Office of Education has implemented that act as it pleased. Almost uniformly, the Federal courts have reached an opposite conclusion to that of the Commissioner of Education. For example, the Federal courts have consistently upheld "free choice plans” as a method of meeting the desegregation requirements of the 1964 act and of the decision of Brown v. Board of Education. In fact, the U.S. Commission on Civil Rights reported just 4 months ago that most courts have upheld the validity of freedom of choice plans providing for a choice among schools not segregated by law.

The decisions cited by the Commission in support of this statement include, among others, the following: Bush v. Orleans School Board (1962); Stell v. Savannah-Chatham County Board of Education (1964); Monroe v. Board of Commissioners of City of Jackson (1964); Vick v. County Board of Education of Obion County (1962); Kemp v. Beasley (1965); and Kier v. County School Board of Augusta County (1966).

In construing the Brown decision, the eminently able jurist, John J. Parker, said in Briggs v. Elliott:

It has not decided that the States must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend * * * but if schools which it (the State) maintains are open to children of all races, no violation of the Constitution is involved even though children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as a result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The 14th amendment is a limitation upon the exercise of power by the State or State agencies, not a limitation upon the freedom of individuals.

Notwithstanding these decisions, the Secretary has apparently been compelled by pressure to seek means of violating the law himself. He has seen fit to ignore the express statutory provisions which say that "desegregation" does not mean the overcoming of racial imbalance and that "nothing" in the act "shall empower any official or court in the United States to issue any order to achieve racial balance.He has deliberately instituted a sociological approach rather than a legal one--an approach designed primarily to balance the races, for in this manner he has been better able to create an image of discrimination in areas where there has been a good faith attempt to end discrimination.

The purpose of this amendment, therefore, is to clarify the ambiguities of title VI of the Civil Rights Act of 1964. This is necessary to avoid the further submission of Federal officials to the pressures of outside forces which have compelled them to perform quasi-judicial functions and to allow them to concentrate on their statutory duty.

At the outset, I want to emphasize that the amendment is not designed to change the intent of Congress in enacting title VI of the 1964 Civil Rights Act. On the contrary, it is to implement that

intent as set forth in section 601 of the act. It is not designed to diminish the effect of decisions of the Federal courts; rather it is designed to rely on those decisions in applying the sanctions of title VI. Nor is it designed to permit unlawful discrimination—it only assists in defining such discrimination.

Section 601, which is the heart of title VI of the 1964 Civil Rights Act, would be left untouched by the amendment. That section provides:

No person in the United States shall, on the ground of race, color, or national origin, be exeluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The remaining, implementing language of the title, as I have said, transfers to the executive the lawmaking power of Congress, leaves the definition of discrimination and the application of sanctions to the uncontrolled discretion of agency officials, and surrenders the control of the Federal purse strings to the “equal opportunity officer" of each agency which he may use to effectuate his own notions of sociological progress. The predictable result has been that many officials have not only taken full advantage of their new power, but indeed some have usurped far more than was given by the act.

I will mention two examples in North Carolina, only to illustrate how this legislative and judicial power which officials have assumed has resulted in the distortion of the original Federal programs they are charged with administering.

An adult basic education project in Charlotte, under which 1,400 Negroes and 170 whites in a total of 91 classes were being taught to read and write, was threatened with termination by the Office of Economic Opportunity because of alleged de facto segregation and socalled racial imbalance in two classes. This threat, without complaint from any local organization or individual, was made under the provisions of title VI.

In another North Carolina city, a hospital is at this moment under threat of losing Federal funds because nonwhites do not comprise as large a percentage of the patient load as is the percentage of nonwhite population of the city. There is no allegation of discrimination or segregation in the staffing, in employment, or in the assignment of patients to wards and rooms, The only allegation is that the local populace does not become ill and choose the threatened hospital according to racial quotas.

Incidentally, I wrote the Department of Health, Education, and Welfare that if it was the policy of the Department to require that the people in a community should become ill and seek hospital treatment according to racial quotas, then the Department would have to arrange to bring that about because notwithstanding, the people of North Carolina were not smart enough to make disease have incidence according to race.

Finally, there is the example of the Office of Education integration guidelines recently published for the South. There is no pretense in the language of the guidelines that their purpose is to prevent either discrimination or State-supported segregation. The whole thrust is so-called racial balance in pupil and teacher assignment according to percentages.

[ocr errors]

Furthermore, in other States, as well as in my own State of North Carolina, many elderly people of all races, through no fault of their own, may be denied the benefits of the recently enacted Federal medical care program in an effort to discipline the policies of hospitals.

Despite the fact that these individuals may well have spent hundreds of dollars in premiums for social security insurance, they would be punished only because they happened to be assigned by their doctors to hospitals which have not achieved a racial balance of patients sufficient to the Department of Health, Education, and Welfare.

These mindless threats and fatuous guidelines cannot be remotely reconciled with the language or the legislative history of title VI or with the unlawful conduct--as defined by the courts—that was intended to be condemned. One brief statement confirms this.

The best authority on congressional intent of any legislative act is the floor manager of the bill, and the floor manager of the 1964 Civil Rights Act was the then assistant majority leader, Vice President Humphrey. In developing legislative history and articulating the intent of the act, the Vice President stated in 1964:

* * * while the Constitution prohibits segregation, it does not require integration. The busing of children to achieve racial balance would be an act to effect the integration of schools.

In fact, if the bill were to compel it, it would be a violation, because it would be handling the matter on the basis of race. The bill does not attempt to integrate the schools; it does attempt to eliminate segregation in the school systems.

The amendment Senator Fulbright and I introduced will prohibit such interpretations of their own power under title VI as some Federal officials have divined. It will accomplish this by defining section 601 according to the intent of Congress and the decisions of the Federal courts; if it is adopted, title VI, in the future, will be implemented according to the intention of Congress and not the whim of bureaucrats who are not answerable to the people for their sociological follies. If our amendment is adopted, every American will be subjec, to the same guidelines and can ascertain what those guidelines are. No longer will “discrimination” mean something different in one year from what it means in the next as is presently the case. No longer can the title be applied in one section of the country and not in another, with the protections of due process, as is presently the case. No longer will "free choice” be allowed by one department or agency and not by another, as is presently the case. Whatever the outcome of this amendment and title III of S. 3296, I would not object to the addition of express language in this bill which would implement the Attorney General's constiiutional authority to insure that no State officially enforces segregration and that no State is compelled by law to integrate its public facilities.

In other words, the Attorney General would be required to assure that no State assigns children to schools on the basis of their race. In this manner, he may be better able to illustrate that the Constitution is colorblind.


At the moment the administration bill was introduced, a national furor erupted concerning its constitutionality. Title IV especially has been the subject of a national debate on this question.

« PreviousContinue »