LEADERSHIP CONFERENCE ON CIVIL RIGHTS, Hon. JACOB JAVITS, DEAR SENATOR JAVITS: We have reviewed your amendments, numbered 578 through 582, to S. 3296. They are designed to strengthen provisions of the bill that the Leadership Conference feels need strengthening. I am sure that your proposed changes, if adopted by the Congress, would go a long way toward meeting the objectives of the Leadership Conference. The Conference has suggested an amendment to provide administrative enforcement of Title IV, the housing title of the bill. The first of your amendments, #578, also provides for administrative enforcement. While our suggested amendment and yours differ in details, they are similar in effect and in many of their provisions. Such differences that exist are not of such significance as would lead us to insist on our version or to ask any member to choose between them. Your amendment, #279, is similar to parts of Title II of 2923, a comprehensive civil rights bill that you co-sponsored. As you are aware, many of the organizations in the Leadership Conference support S. 2923 and would, therefore, give full support to this amendment. The Conference as a whole is committed to the principle of an "automatic trigger" in the state jury title of the bill. Your amendment includes a trigger that would be effective if included in the statute. Your amendment #580, to provide civil indemnification for victims of civil rights violations, is also basically similar to a part of S. 2923, Title V. We are working for inclusion of this title in the bill and so can say we wholeheartedly agree with you that it should be adopted. Your provision that a specific fund should be established for this purpose is a constructive suggestion. Your amendment #581, would allow the government as well as the defendant in a criminal case in Federal court to challenge the jury on the ground of discrimination. Certainly this is a much needed change. With the likely increase in Federal civil rights prosecutions under Title V, equal justice to the Negro victims demands that juries trying their oppressors be as free from prejudice as possible. We understand that the subcommittee of the House Judiciary Committee has amended H.R. 14765 along the lines suggested by you. In the light of the recent decision of the Supreme Court in the Peacock case, your last amendment, #582, is most timely. It would allow the transfer to Federal courts and enjoining of many state court cases involving persons seeking their civil rights, particularly cases touching on First Amendment rights, which the Supreme Court has held are not covered by existing transfer statutes. Since the Attorney General has expressed interest in this type of legislation, we would hope he could join in supporting the amendment. In summary, we would say that your five amendments represent a constructive effort to improve the bill in furtherance of better protection of civil rights. They are consistent with the objectives of the Leadership Conference. We are sure that the Conference will cooperate with you in obtaining our mutual goals. Sincerely, J. FRANCIS POHLHAUS, ADDITIONAL VIEWS OF SYLVESTER PETRO ON TITLE IV TITLE IV OF H.R. 14765, AS AMENDED JUNE 30, 1966 The new title IV proposed by the House Judiciary Committee (H.R. 14765) excludes the individual homeowner from its express coverage. The strictures of new Section 403 (a) are addressed to "any person who is a real estate broker, agent, or salesman, or employee or agent of any real estate broker, agent, or salesman, or any other person in the business of building, developing, selling, renting, or leasing dwellings, or any employee or agent of any such person." The individual homeowner is further excluded by Section 402(d), which defines the term "person in the business of building *** etc." Section 402(d) states that "a person shall be deemed to be in the business of building, develop ing, selling, renting, or leasing dwellings if he has, within the preceding twelve months, participated as either principal or agent in three or more transactions involving the sale, rental, or lease of any dwelling or any interest therein." The new Title IV is careful to avoid offending two other politically important groups: resident landlords and religious organizations. Thus Section 403(b) of H.R. 14765 provides that "nothing in this section shall apply to an owner with respect to the sale, lease, or rental by him of a portion of a building or structure which contains living quarters occupied or intended to be occupied by no more than four families living independently of each other if such owner actually occupies one of such living quarters as his residence. As to politically influential religious organizations, Section 403 (c) provides that "nothing in this section shall bar any religious or denominational institution, or any charitable or educational institution or organization which is operated, supervised or controlled by or in conjunction with a religious organization, or any bona fide private or fraternal organization, from giving preference to persons of the same religion or denomination, or to members of such private or fraternal organization, or from making such selection as is calculated by such organization to promote the religious principles or the aims, purposes, or fraternal principles for which it is established or maintained." 1. DUPLICITOUS EXCLUSION OF HOMEOWNERS Despite the exclusions just noted, the new Title IV is likely to affect the ap parently excluded groups fairly substantially. For example, Section 403 (a) (4) makes it unlawful for realtors "to fail or refuse to show any dwelling which he is authorized to show to prospective buyers, rentors, or lessors, because of race, color, religion, or national origin, or to fail to submit promptly to his principal any offer to buy, rent, or lease because of race, color, religion, or national origin, or to fail or refuse to use his best efforts to consummate any sale, rental, or lease because of the race, color, religion, or national origin of any party to the prospective sale, rental, or lease." The casual reader of this provision is likely to dismiss it as a mere, pious exhortation to realtors. Of course it is repugnant to make it practically a crime for a person, even a realtor, to "fail or refuse to use his best efforts"; but how, it will be asked, can the government enforce such a provision? The answer lies in a provision which makes the new Title IV even more farreaching than its predecessor as an invasion of rights and liberties. But before investigating that provision, let us examine another aspect of the duplicitousness of the apparent exclusion of the individual homeowner. Section 403 (d) provides that "nothing in this section shall affect, or be construed to affect, any liability for payment of a real estate or other commission by any person with respect to the sale, lease, or rental of a dwelling." Now consider this type of case: A, homeowner, employs B, realtor, to sell his home. B, forced by the law to show the house indiscriminately, presents A with C, a man of color, who is ready, willing, and able to purchase at the price set by A. It seems clear under new Title IV that A will not violate the law in refusing to sell to C. But the question is whether or not, under Section 403(d), A is bound to pay B, the realtor, a commission for having produced a ready, willing and able buyer. Of course, sellers such as A may seek to contract out of such obligations, but the question remains whether such contracts will be held valid. Courts in the states may be inclined to uphold such contracts, but they will have to contend with Section 410 of new Title IV, which provides that any state law "that purports to require or permit any action that would be a discriminatory housing practice under this title shall to that extent be invalid." In my opinion the individual homeowner, despite his apparent exclusion from new Title IV, is likely nevertheless to feel its impact. He may not realize it, but his ox is going to be gored anyway, and in more ways than one. 2. THE "FAIR HOUSING BOARD" Interventionist legislators do what they can to lead the voting public to believe that welfare-state government is kindly and beneficent-that it is "government with a heart." In order to achieve this deception, it is necessary to expose the public as little as possible to the callous and ruthless practices of administrative agencies. It does not matter that businessmen must contend with the National Labor Relations Board or with the Federal Trade Commission. What Professor Ludwig von Mises calls the "anti-capitalistic mentality" guarantees that the public will shed no tears over the shoddy mistreatment which they suffer from administrative agencies. But the public itself must not see what goes on behind the scenes; at any rate, large numbers of the voting public must not be subjected to the kangaroo-court activities which go under the name of administrative law. Hence, while Title IV was expressly applicable to individual homeowners, enforcement proceedings were confined to the regular, constitutional courts. Now, however, with Title IV modified so that it applies directly only to businesmen, it is no longer necessary to proceed in this regular, constitutional manner. With only businessmen as the direct targets, the big gun of the welfare state, the "fourth arm" of government-the administrative tribunal-can be put into commission, and the new Title IV does so. Section 408 of new Title IV establishes what it calls a "Fair Housing Board." This new Board is patterned largely on the National Labor Relations Board, with, generally speaking, the same jurisdiction, power, and procedures. Whereas actions by private parties under new Title IV would be brought before the regular courts, state and federal, the chances nevertheless are that the bulk of Title IV proceedings would be heard before the Fair Housing Board. For the new bill authorizes the Secretary of Housing and Urban Development to prosecute Title IV cases, but only before the Fair Housing Board. It is scarcely likely that private parties will prefer to spend their own money in prosecuting Title IV cases, when the Secretary is available and empowered to do so and when in suits brought by the Secretary the deciding tribunal will be an administrative agency created specifically to enforce the legislation. What would be the point? Beyond much question, therefore, if Title IV passes, the Fair Housing Board will become as dominant in its administration as the Labor Board has become in the administration of the National Labor Relations Act. Once the Secretary files a complaint with the Fair Housing Board, that is where the case will be heard. The Act provides defending parties with no right of removal to a regular, constitutional court. It has long been established under the Labor Act that there is no such right of removal. Since Title IV expressly identifies the jurisdiction of the Fair Housing Board with that of the Labor Board, it is clear that no right of removal was intended under Title IV, either. Thus the persons covered by Title IV-realtors, builders, developers, etc.-will have to act in a manner calculated to please the Housing Board. In order to please that Board they will undoubtedly have to discriminate in favor of members of minority groups-i.e., distinct groups in the populace which have significant voting power-just as employers, if they wish to avoid the hardships and injustices of the National Labor Relations Board, must cater to the large and powerful trade unions. |