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Senator Ervin. Thank you Senator Kennedy. The record will include at this point, immediately following the statement of Senator Kennedy, the statement of Senator Scott, a member of the full Judiciary Committee. The subcommittee is delighted to have Senator Scott join in the deliberations surrounding this far-reaching bill.

(The statement of Senator Scott follows:)


Mr. Chairman, as a co-sponsor, I am grateful for this opportunity to express my views on S. 3296, the proposed Civil Rights Act of 1966. This legislation is clearly necessary despite the progress resulting from four Congressional enactments within the past decade because of the failure of certain States and localities to provide for the fair and impartial administration of justice. Recent tragic events in these areas and the failure to bring those responsible for them to justice testify to the need for the first two titles of this bill.

At the outset, let me make clear my feeling that the President was unwise in deciding to ask for the fair housing law embodied in Title IV of the bill. I, of course, strongly favor the objective of Title IV for it is my deeply held conviction that every individual should have the opportunity to seek housing accommodations for himself and his family wherever he chooses to locate himself subject only to his financial capacity and his personal tastes. In my opinion, however, Federal legislation is unnecessary to secure this opportunity.

In enacting the Housing Act of 1949, Congress proclaimed as the fountainhead of our national housing policy the objective of “a decent home and a suitable living environment for every American family.” The President of the United States is responsible for implementing that policy through the department administering that Act as amended and the agencies supervising the banks and lending institutions which finance most of this Nation's housing. Accordingly, I have felt that the President has ample executive authority to take steps designed to insure that equal access to housing is a fact and not å goal. For this reason, I repeatedly called upon the late President Kennedy to issue an executive order barring discrimination in all Federally assisted housing.

President Kennedy did issue such an order in November 1962, but its scope is so limited as to render it ineffectual. As the Civil Rights Commission pointed out in its 1961 report, mortgage lending institutions are "a major factor in the denial of equal housing opportunity.” They, however, are not affected by the President's 1962 executive order which covers only FHA and VA-insured mortgages. On several occasions since its issuance, I have urged extension of this executive order to include conventional mortgage activities of_Federally assisted lenders. My most recent plea in this regard was made last December when I deplored reports that the Attorney General was recommending the legislative route to bring about an end to housing discrimination.

I have preferred the stroke of the President's pen as the means of achieving the intended result of Title IV for four reasons. First, it is a way of achieving the end in mind quickly without the highly charged controversy that is presently swirling around Title IV. By tossing the fair housing ball into the legislative court, the President has risked the danger of setting back the cause of fair housing because if Title IV is eliminated or crippled such action will weaken the moral basis for a subsequent decision to extend the November 1962 executive order against discrimination in housing. Indeed, the controversy over Title IV jeopardizes the chances to enact the remainder of S. 3296 this year.

Second, more than 80 percent of the Nation's housing supply can be reached by a broadened executive order, and the remaining 20 percent would soon follow suit.

Third, by employing his existing monetary and regulatory sanctions instead of the court sanction proposed in sections 406 and 407 of S. 3296, the President could achieve the result contemplated in Title IV without burdening the courts and without requiring them to formulate new standards defining discrimination.

Finally, a broadened executive order would avoid putting all the pressure on the individual homeowner as S. 3296 does. Rather, the pressure under a system instituted by executive order would be upon banks and brokers, the parties most in need of regulation and the ones most likely to comply and thereby influence their clients to comply.

Although he had the option to extend the November 1962 executive order, President Johnson instead presented us with the fait accompli of Title IV. Congress' task now is to amend Title IV to meet legitimate objections which have been raised against it as well as to blunt the highly strident opposition applying the misnomer "forced housing' to Title IV. Here let me offer three alternative suggestions for the Subcommittee's consideration.

First, Title IV might be more workable if in the first instance it were to rely on administrative procedures instead of on the courts as presently provided. Is the court procedure proposed therein not too blunt to be really effective? Does it not minimize the opportunity for cooperation and compromise? Why put this kind of new burden on the courts which will have to develop new standards out of whole cloth? In raising these questions, I am trying to suggest the advisability of providing machinery for mediation and conciliation as a way of settling some of the problems encountered in the area of housing discrimination. These problems must be decided equitably, and discrimination ended. Here, the Subcommittee may well want to give serious consideration to Amendment No. 578 proposed by my able and distinguished colleague from New York, Senator Javits, which authorizes the creation of an Equal Housing Opportunity Commission.

Another alternative for the Subcommittee's consideration would be broadening the scope of Title VI of the Civil Rights Act of 1964. Title VI, which prohibits discrimination under any program or activity receiving Federal assistance, explicitly excludes from its coverage a "contract of insurance or guaranty:" Deletion of the language just quoted would, I believe, do by legislation what a broadened executive order would do if it were extended to include all conventional mortgage activities of Federally assisted lenders.

Finally, the Subcommittee might want to consider limiting the application of Title IV in the following manner: 1) by conforming to the most advanced State laws and 2) by excluding from its coverage the homeowner who sells to a member of his immediate family or to one who has been an employee for a reasonable term of years.

Turning to the other titles of the bill, I am concerned about the failure of Title I to grant to the prosecutor in a Federal criminal case a right co-extensive with that of the defendant to object to a jury selection process which is in violation with section 101. To remedy this defect, I commend to the Subcommittee's attention Amendment No. 581 introduced by Senator Javits.

Title II is unclear as to what remedy is available to defendants tried before juries in State courts from which Negroes have been excluded because of their race. Whereas Title I provides for the challenge of jury selection procedures by crinimal defendants and civil litigants, Title II is curiously non-parallel, and it does not, as does Title I, explicitly authorize staying the proceeding. Beyond granting power to the Attorney General to sue in the appropriate Federal district court for preventive relief in cases where racial discrimination in State jury selection is belevied to occur, Title II becomes vague as to what relief can be granted. Language similar to that in section 101 should be included to permit the Federal court to stay the proceedings of the State court pending the selection of a jury that conforms with the prohibition in section 201.

In closing, Mr. Chairman, I earnestly hope that the Subcommittee will approve a meaningful bill that will effectively fill the gaps still remaining in existing civil rights statutes.

Senator KENNEDY. Will the Senator from New York yield for just one question on his statement?

Senator Javits. Mr. Chairman, may I just say to Senator Kennedydo we have permission to sit after 12 o'clock?

Senator HRUSKA. Through the morning hour.
Senator JAVITS. I yield.

Senator KENNEDY. Just 1 minute. I would like to ask the chairman where on the top of page 4 of his statement when he was talking about the Chief Justice of the United States, he said:

His recent warnings that the balance of federalism is being threatened by proposed legislation on state juries gives me great hope that the Senate will look closely and critically at the need and propriety of such legislation.

The Chairman is not suggesting that the Chief Justice in using the words "proposed legislation,” was commenting on the legislation which the administration has put forward, is he?

Senator ERVIN. I am unable to answer the question as to what the Chief Justice was referring. I read the statement attributed to him in which he said in substance-I do not undertake to quote his exact words—that some of the bills now pending before Congress threatened serious injury to the principle of federalism.

Senator KENNEDY. The opinion of the Chief Justice is certainly a matter of great import. I think it is important to have included in the record the Chief Justice's statement as it refers to this question. The newspaper report in the New York Times, which was reported by Mr. Graham, gives a number of the comments made by the Chief Justice where the Chief Justice departed from his text. In the news report itself, it says, "Observers assumed that the Chief Justice was not referring to the jury provision of the administration's proposed civil rights bill of 1966." And it then continues on. Senator ERVIN. It says “assumed.”

Senator KENNEDY. Èxactly. What I am suggesting is that we ought to have included in the record the complete statement, to get accurately his comments on that provision--

Senator JAVITS. Is the text available, may I ask? (The text of the Chief Justice's address appears at p. 201.) Senator Ervin. I do not profess to be authorized to state what the Chief Justice said or what he meant, but I would inform the Senator that any documents he may want to put in the record relating to this speech will certainly, as far as I am concerned, be included in the record and I also inform the Senator that we have requested the American Law Institute to furnish us with the official reporter's transcript of the speech so it can be included in the record.

Senator KENNEDY. And then in the----

Senator Ervin. I was just endorsing the Chief Justice's concern about the Federal-State relationships.

Senator KENNEDY. The other insertion I would like in the record is the quote of the Vice President of the United States in reference to the 1964 bill. I feel that perhaps the Vice President's views at that particular time, as well as currently, might be misunderstood from a quote later taken out of context. I would hope, Mr. Chairman, that at a later time that we could include the contents of the language of the Vice President prior to that particular quote, and offer appropriate quotes which might accurately reflect his opinion.

Senator Ervin. I will be glad to put in the record anything the Senator from Massachusetts desires on any of these points or on any other point. I certainly do not want the Vice President to be misinterpreted or misquoted. This material will be placed in the appendix.

Senator KENNEDY. I appreciate that.

Senator Javits. I thank my colleague. Mr. Chairman, in the same vein, I ask unanimous consent to include in the record the total statement of the national committee against discrimination on housing referred to at page 19 of the chairman's opening statement. I wish to point out that it was my understanding that they were protesting against the weakness of the legislation in making this statement on title IV with regard to discrimination in housing, whereas the Chair indicated, at least implied that they were sustaining the views that this legislation was inadvisable. I do not think they would want to be subjected to that interpretation. Senator Ervin. That may be included at this point.

65-506—66-pt. 1



(The statement follows:)


LEGISLATION, APRIL 28, 1966 (Statement by the National Committee Against Discrimination in Housing

(NCDH)) The proposed Federal Antidiscrimination Housing Act is totally inadequate to meet today's critical national problem of the explosive racial ghetto. Twentyfive years ago, such an act by Congress might have established the posture of the National Government as opposed to racial discrimination and prevented the use of FHA and VA guarantees, resources of the Home Loan Bank Board, savings and loan associations, and other federally guaranteed lending institutions from creating the massive lily-white suburban rings surrounding and constricting and swelling our tension-filled, inner-core black ghettoes. This proposal is too little and too late to effect the affirmative and immediate step required.

Congressional action in 1866, as stated in section 1982 of title 42 of the United States Code, established 100 years ago that a Negro shall have the same real property rights as white citizens. Neither President nor Congress has seen fit to enforce these rights; instead, the Congress has abdicated its control of vast billions of dollars in housing appropriations since the 1930's to the will of the executive department and the whim of the real estate and mortgage lending industries. They have been allowed, with Federal sanction and Federal support, to follow the custom of the marketplace to restrict the housing choices of Negroes and other minorities and segregate them in multiplying and expanding ethnic ghettoes in growing urban communities over the country.

The proposed bill, even if it could be strengthened and ultimately passed after long and divisive debate, could not alone have appreciable effect on the accelerating racial tensions created by a ghetto way of life. In fact, such a proposal at this strategic moment may raise false hope among the Negro masses which cannot possibly be fulfilled by this proposal. With or without this additional legislation, the key to today's racial problems in housing lies right now in the hands of the President and his executive department, including the recently established and powerful Department of Housing and Urban Development.

The President has not been reluctant to use his executive powers in other areas to bring about needed reforms. Under title VI of the Civil Rights Act of 1964, for example, he has alternately tightened and then loosened the purse strings under executive control in order to effect desegregation of schools, health and other facilities, in North and South alike, wherever Federal funds or powers are directly or indirectly involved.

It now remains for him to make comparable use of executive control of the vast Federal funds, credits and powers available for the planning, development, and marketing of housing accommodations, utilities and facilities in projects, neighborhoods and large parts of entire communities. Every day these funds are being used more to segregate Negroes than to include them. The President has the power now to require the use of these funds and powers to bring about dispersion and inclusion, rather than segregation and exclusion. He must exercise this choice every day, whether or not he ultimately achieves national antidiscrimination housing legislation with adequate enforcement machinery.

Furthermore, he now has before Congress vast and sweeping housing legislation to reshape urban communities. Unless the President directs the control and use of funds and powers, these new programs will surely accentuate the ghetto problems of a Watts or a Harlem long before the limited effect of any national antidiscrimination law could be applied. In that event, the National Committee Against Discrimination in Housing could not support the adoption of any current or new national housing programs until the President moves to exercise affirmatively the great powers now in his hands.

NCDH has always favored the concept of insuring equal opportunity under laws which provide machinery for effective enforcement. We do not oppose this antidiscrimination legislation, although at this juncture we believe it to be of little moment. Until the President exercises to the fullest the pervasive Executive powers already in his hands to bring Negroes back into the stream on national and community life, he will not have redeemed the pledge in his landmark address at Howard University on June 4, 1965.

On that historic day in June 1965, President Lyndon B. Johnson said:

“But freedom is not enough. You do not wipe away the scars of centuries by saying, ‘now you are free. You can go where you want or do as you desire, and choose the leaders you please.' You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of the race and then say, “You can compete with all the others,' and still justly believe that you have been completely fair. Thus, it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.”

We strongly and vigorously commend the President for having taken this position. We now call—and while the Congress works its will, shall continue to call-upon President Lyndon B. Johnson to give meaning to those works with affirmative Executive action to insure that the Nation's housing and related programs and resources are administered to provide true equality of opportunity for all Americans, and with the specific goal of wiping out the ghetto way of life which afflicts our whole society.

Senator Javits. Thank you.

Mr. Chairman, I believe I am in a rather unique position of being the only member of the Senate who is either sponsor or cosponsor of all seven provisions before us today in bills heretofore introduced in the Congress, and the numbers of those bills are S. 1497, S. 1654, S. 2845, S. 2846, S. 2923, and S. 3170, and S. 3296.

Mr. Chairman, one measure concerning the protection of civil rights workers and those attempting to exercise their rights is S. 2846, which I introduced with others back in 1961 when the Civil Rights Commission first recommended the change. An early jury bill which Senators Case, Fong, and I introduced last January, S. 2845, was the result of apparent failures of certain State courts in the South to be effective in bringing justice to persons accused of civil rights murders. S. 3170, which Senator Robert Kennedy and I introduced is primarily the product of the Civil Rights Committee of the Bar Association of the State of New York, which has worked diligently on the proposal for the transfer of certain cases from State to Federal courts for a long time.

Mr. Chairman, while I do have some comments on the administration's bill which is before us, I wish to express at the outset that any reservations which I have arise out of the disagreement on tactics and out of my desire to have an even more effective bill. Certainly I favor and have cosponsored the administration's bill even in its present form.

Within this frame of reference, I wish to make the following observations:

(1) I deeply regret the President's decision to send us fair housing legislation as a congressional enactment, since I believe that putting the matter before Congress jeopardizes the chances for the implementation of this whole concept.

President Kennedy's 1963 housing order, while it has not yet been enforced with sufficient vigor in my judgment, covers the housing insured by the FHA and the VA, and I believe that this Executive order of President Kennedy's, now 3 years old, should be extended to cover all housing with mortgages held by FDIC banks and Federal Savings and Loan Insurance Corporation savings and loan

companies. This simple move, this stroke of the pen as President Kennedy characterized it, could, if effectively enforced, end discrimination in 80 percent of the Nation's housing, and that is far more effective than getting this matter embroiled in the legislative struggle which will ensue, as is clearly indicated by the chairman's presentation already made.

(2) Given legislation to end housing discrimination, I believe a more effective method of enforcement could be provided through an

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