all or nearly all Negro, it is nevertheless the fact that since the adoption and implementation of title VI of the Civil Rights Act, the number of Negro students attending desegregated schools has increased markedly.

In 1964, it was 2.25 percent of the Negro students in desegregated schools. In 1965 it was 6 percent and in September 1966 it was 12 percent. The progress in the six border States is even more impressive with the dual school system nearly abolished in some.

In addition, more than half of the districts of the South have made at least a start in faculty desegregation. The object of the Department's civil rights activity is not the termination of Federal funds. Our goal is to assure that no person in the United States on the grounds of race, color or national origin be excluded from participation in or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Mr. Chairman, I have two documents which I would like to submit for the committee's information and for the record. One is a memorandum from the General Counsel on the legal basis of the revised guidelines.

The second is a letter from the Attorney General stating the need to require faculty desegregation.

Chairman PERKINS. Without objection all of those documents will be inserted in the record at this point.

(The documents referred to follow :)

To: The Secretary.

From: Alanson W. Willcox, General Counsel.

Subject: Review of Legal Authority for the 1966 School Desegregation

Guidelines.

Pursuant to your recent request, I have reviewed the legal authority for the Revised Statement of Policies for School Desegregation Plans (the "Guidelines") and my earlier advice to you concerning the legal authority for it.

I have completed this review, and I unhesitantly reaffirm my advice that the 1966 Guidelines are fully consistent with and supported by title VI of the Civil Rights Act of 1964 and the decisions of Federal courts.

In addition to the analysis of court decisions in my memorandum of March 7, 1966, to Commissioner Howe, the pertinent decisions are discussed in a statement entitled "Authority for the 1966 School Desegregation Guidelines." That statement served as an attachment to a letter of May 24, 1966, from Commissioner Howe to Senator Fulbright. More recently the Courts of Appeals for the Fourth and Fifth Circuits have handed down decisions in Wheeler v. Durham City Board of Education (No. 10,460, C.A. 4th, July 5, 1966) and Davis v. Board of School Commissioners of Mobile County (No. 22,759, C.A. 5th, August 16, 1966). These reaffirm principles upon which the Guidelines are based, particularly the fact that teacher desegregation is an essential part of the desegregation plans. Further, in the Mobile case, the Court pointed out as one of the principal legal defects in the plan there under review "the fact that even as to those grades which, under the plan, have actually become 'desegregated' there is no true substance in the alleged desegregation. Less than two-tenths of one per cent of the Negro children in the system are attending white schools."

The Deputy Attorney General recently submitted to Congressman Howard W. Smith, Chairman of the House Rules Committee, a letter requested by him regarding faculty desegregation. The Chairman had asked whether this Department has authority, under title VI of the Civil Rights Act of 1964, to require a school district maintaining a dual school system to desegregate its faculty as a necessary part of desegregating its school system. The Department of Justice responded with a letter dated October 4, 1966, and an attachment cit

ing numerous judicial decisions in which the courts had required school districts, as a part of school desegregation plans, to cease hiring and assigning faculty on the basis of race and in many cases to assign teachers for the express purpose of overcoming the effects of past discrimination. The letter concluded with the following sentence: "For the foregoing reasons we conclude that section 601 [of the Civil Rights Act of 1964] applies to the desegregation of faculty and staff of school systems that have been racially segregated, and that section 604 [of the Civil Rights Act of 1964] does not preclude such application."

It should be noted, on the other hand, that the Report of the Senate Committee on Appropriations (pp. 71 and 72, Report No. 1631, 89th Cong., 2d Sess.) questioned whether the Guidelines are consistent with legislative intent on the ground that they allegedly require assignment of pupils in order to overcome racial imbalance. The Committee apparently felt that the definition of "desegregation" in section 401 (b) of the Act, and the provision of section 407 (a) which provides that "nothing herein shall empower any court or official to require the transportation of students to overcome racial imbalance," were intended to be applicable to actions under title VI and that the Guidelines required action to overcome such imbalance.

We are satisfied that the Guidelines do not require action "to overcome racial imbalance." It should be noted, however, that section 402 specifies that the definitions it contains are "[a]s used in this title" [IV], and also that title VI does not contain the defined word "desegregation" or the word "desegregate." It is therefore difficult to conceive of a court holding that, as a legal matter, the title IV definition is controlling in title VI. Moreover, the context of the quoted language in section 407 (a) indicates that it concerns only desegregation actions brought by the Attorney General, and not the refusal or termination of Federal financial assistance under title VI. The Senate Appropriations Committee Report, however, is based upon statements made by Senator Humphrey in response to questions asked by Senator Byrd of West Virginia.

Some time ago my staff prepared a statement showing that an examination of the colloquy in context demonstrates that Senator Humphrey was not referring to requirements applicable to school districts which have been maintaining dual school structures, but only to what would be imposed in de facto situations which courts have held not to violate the constitutional rights of students. In fact, Senator Humphrey emphasized that the provision in question simply embodied the substance of Bell v. School City of Gary, 324 F. 2d 209 (C.A. 7th, (1963), cert. den. 377 U.S. 924). (110 Cong. Rec. 12715-12717, June 4, 1964) The Guidelines are consistent with Senator Humphrey's explanation because he made clear at that time that the amendment did not prevent action "for the purpose of preventing denial of equal protection of the laws," [i.e., a violation of the children's rights under the Fourteenth Amendment]. (110 Cong. Rec. 12714, June 4, 1964)

The Guidelines do not require more for the continuance of Federal assistance than a plan looking toward the elimination of the dual school system as required by the Fourteenth Amendment. These requirements are discussed in my memorandum of March 7, 1966, and the attachment to Commissioner Howe's letter of May 24, 1966, to Senator Fulbright.

The performance provisions of which the Senate Appropriation Committee report is critical do no more than follow constitutional requirements. They provide that for the school year 1966-67 a school district may comply with title VI through operation of a choice plan under which schools continue to be maintained for Negroes. But if in practice such plans are not making progress toward the elimination of the dual school system, the Commissioner may require that the school officials take further action to make progress or may require a different type of plan such as geographic zoning (45 C.F.R. 181.54). Where a school district assigns children to schools on the basis of non-gerrymandered geographic zoning, the effectiveness test referred to above does not apply.

Obviously, a school system which has adopted a free choice desegregation plan, but which is making little or no progress in the elimination of its dual school system, is not satisfying its constitutional obligation, as defined by the decisions of the Federal courts, to desegregate its schools. Just as obviously, the Commissioner of Education would not be satisfying his obligation under title VI and the Regulation if he were to determine that such a plan is adequate to carry out the purposes of title VI.

The percentages stated in the Guidelines do not provide a rigid rule for the degree of progress required of each school district. They do, however, provide

a guide to the Office of Education in determining whether or not a free choice plan should be scheduled for review and a guide to the school district as to what, in general, might be considered reasonable progress. In this same section, there is an indication of what might be done in the event there is a substantial deviation from these expectations.

Any school district which believes it is being asked to do more than the law requires has full recourse to an administrative proceeding and a thirty-day notification to Congessional committees before a termination of Federal assistance (sec. 602, Civil Rights Act of 1964). Moreover, if it believes the termination to exceed the Commissioner's authority under the law, it is entitled to judicial review as provided in section 603.

In short, the decisions of the Federal courts establish that local school officials who have in the past maintained separate schools for Negro and white children are under a constitutional compulsion to provide a single desegregated school system for all children. At no time did the Congress intend in title IV or elsewhere in the Civil Rights Act of 1964 that any school child receive less than his full measure of constitutional protection. The responsibility which school officials who are desegregating their school systems voluntarily must assume in order to qualify for Federal assistance may not, if the purposes of title VI are to be carried out, be any less than the responsibilities imposed on school officials by the courts in recent school desegregation decisions. The Guidelines were issued to inform school officials of what those responsibilities are and are in accord with those decisions. If school systems assuming a lesser degree of responsibility were permitted to receive Federal assistance, the purposes of title VI would be thwarted.

Hon. RUSSELL B. LONG,

Chairman, Finance Committee,
U.S. Senate, Washington, D.C.

MARCH 2, 1967.

DEAR SENATOR LONG: During the course of Secretary Gardner's testimony before your Committee on February 23, 1967, you raised the question whether the Supreme Court's decision in the Brown case requires the desegregation of a public school faculty in which teachers have previously been assigned on a racial basis as part of a dual racial public school system. You asked that this Department furnish the Committee a memorandum discussing the case law in this area. The case law, I believe, clearly imposes on public school authorities the affirmative, constitutional duty to desegregate their faculties so that the rights of pupils to the "equal protection of the laws" under the Fourteenth Amendment will no longer be denied.

In 1954 the Supreme Court of the United States declared that the segregation of public school students according to race violates the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483 (1954). A year later, the Court, in determining how judicial relief could best be fashioned, mentioned the problem of reallocating staff as one of the reasons for permitting the desegregation process to proceed with "all deliberate speed." Brown v. Board of Education, 349 U.S. 294, 301 (1955).

Two cases decided by the Supreme Court in late 1965 indicate that school boards may no longer postpone the responsibility owed their students of desegregating faculty. In Bradley v. School Board of Richmond, Virginia, 382 U.S. 103 (1965), the Court took the view that faculty segregation had a direct impact on a desegregation plan, and that it was improper for the trial court to approve a desegregation plan without inquiring into the matter of faculty segregation. In reaching this conclusion the Court, in a unanimous opinion, commented that "there is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative." And in ruling that there should be no further delay in a hearing on the question of faculty desegregation, the Court further emphasized that "delays in desegregation of school systems are no longer tolerable." 382 U.S. at 105.

In Rogers v. Paul, 382 U.S. 198 (1965), the Supreme Court extended the undelayed right to challenge teacher segregation to students who had not yet themselves been affected by the School Board's gradual desegregation plan. The Court stated (382 U.S. at 200) :

"Two theories would give students not yet in desegregated grades sufficient interest to challenge racial allocation of faculty: (1) that racial allocation of

faculty denies them equality of educational opportunity without regard to segre gation of pupils; and (2) that it renders inadequate an otherwise constitutional pupil desegregation plan soon to be applied to their grades."

Relaying on the Bradley case, the Court of Appeals for the Fifth Circuit, the circuit covering the states of Alabama, Florida, Georgia, Louisiana, Mississippi and Texas, ruled in January 1966, in a suit also brought by Negro students, that it was "essential" that the plan of desegregation for Jackson, Mississippi "provide an adequate start toward elimination of race as a basis for the employment and allocation of teachers, administrators, and other personnel," Singleton v. Jackson Municipal Separate School District, 355 F. 2d 865, 870. And in a case decided in August 1966, the same Court ruled that the plan of desegregation for Mobile, Alabama "must be modified in order that there be an end to the present policy of hiring and assigning teachers according to race by the time the last of the schools are fully desegregated for the school year 1967-68." Davis v. Board of School Commissioners of Mobile County, 364 F. 2d 896, 904.

The Courts of Appeal for the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia), the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri. Nebraska, North Dakota and South Dakota) and the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming) have similarly held. In a suit brought by pupils in Durham, North Carolina, the Court stated:

"We read the [Bradley] decision as authority for the proposition that removal of race considerations from faculty selection and allocation is, as a matter of law, an inseparable and indispensable command within the abolition of pupil segregation in public schools as pronounced in Brown v. Board of Education, supra, 347, U.S. 483. Hence no proof of the relationship between faculty allocation and pupil assignment was required here. The only factual issue is whether race was a factor entering into the employment and placement of teachers." Wheeler v. Durham City Board of Education, 363 F. 2d 738, 740 (C. A. 4, 1966).

The Court in Wheeler went on to require (at p. 741):

"Vacant teacher positions in the future.. should be opened to all applicants, and each filled by the best qualified applicants regardless of race. Moreover, the order should encourage transfers at the next session by present members of the faculty to schools in which pupils are wholly or predominantly of a race other than such teacher's. A number of the faculty members have expressed a willingness to do so. Combined with the employment of new teachers regardless of race, this procedure will, within a reasonable time, effect the desegregation of the faculty."

Chambers v. Hendersonville Board of Education, 364 F. 2d 189 (C.A. 4, 1966), involved the problem of Negro teachers who lost their jobs when an all Negro school was abolished. The School Board treated them as new applicants. The Court held that this was discriminatory and invalid under the Fourteenth Amendment, stating (at p. 192):

"First, the mandate of Brown v. Board of Education, 347 U.S. 483 (1954), forbids the consideration of race in faculty selection just as it forbids it in pupil placement. See Wheeler v. Durham City Board of Education, 346 F. 2d 768, 773 (4 Cir. 1965). Thus the reduction in the number of Negro pupils did not justify a corresponding reduction in the number of Negro teachers. Franklin v. County Board of Gilea County, 360 F. 2d 325 (4 Cir. 1966). Second the Negro school teachers were public employees who could not be discriminated against on account of their race with respect to their retention in the system. Johnson v. Branch, 364 F. 2d 177 (4 Cir. 1966), and cases therein cited...."

In a suit brought by pupils in El Dorado, Arkansas, the Eighth Circuit Court of Appeals recognized "the validity of the plaintiff's complaint regarding the [School] Board's failure to integrate the teaching staff. Such discrimination is prescribed by Brown and also the Civil Rights Act of 1964 and the regulation promulgated thereunder." Kemp v. Beasley, 352 F. 2d 14, 22 (1965). The Court elaborated on this theme in Smith v. Board of Education of Marrilton, 365 F. 2d 770, 778 (1966):

"It is our firm conclusion that the reach of the Brown decisions, although they specifically concerned only pupil discrimination, clearly extends to the proscription of the employment and assignment of public school teachers on a

racial basis. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947); Wieman v. Updegraff, 344 U.S. 183, 191-192 (1952). See Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 372, U.S. 714, 721 (1963). This is particularly evident from the Supreme Court's positive indications that non-discriminatory allocation of faculty is indispensable to the validity of a desegregation plan. Bradley v. School Board of the City of Richmond, supra; Rogers v. Paul, supra. This court has already said, 'Such discrimination [failure to integrate the teaching staff] is prescribed by Brown and also the Civil Rights Act of 1964 and the regulations promulgated thereunder.'" Kemp v. Brown, supra, p. 22 of 352 F. 2d.

In a recent decision of the Eighth Circuit, Clark v. Board of Education of Little Rock School District, No. 18, 368 (December 15, 1966), the Court required of the Little Rock, Arkansas School Board (slip op., p. 15) a "positive program aimed at ending in the near future the segregation of the teaching and operating staff." The Court stated (slip op., p. 13):

"We agree that faculty segregation encourages pupil segregation and is detrimental to achieving a constitutionally required non-racially operated school system. It is clear that the Board may not continue to operate a segregated teaching staff. Bradley v. School Board of City of Richmond, 382 U.S. 103 (1965). .. It is also clear that the time for delay is past. The desegregation of the teaching staff should have begun many years ago. At this point the Board is going to have to take accelerated and positive action to end discriminatory practices in staff assignment and recruitment."

The Court then proceeded to outline the essential ingredients which such "action" must include (pp. 13–14):

“First, . . . future employment, assignment, transfer, and discharge of teachers must be free from racial consideration. Two, should the desegregation process cause the closing of schools employing individuals predominately of one race, the displaced personnel should, at the very minimum, be absorbed into vacancies appearing in the system. Smith v. Board of Education of Morrilton School District, No. 32, supra. Third, whenever possible, requests of individual staff members to transfer into minority situations should be honored by the Board. Finally, we believe the Board make all additional positive commitments necessary to bring about some measure of racial balance in the staffs of the individual schools in the very near future. The age old distinction of 'white schools' and 'Negro schools' must be erased. The continuation of such distinctions only perpetrates inequality of educational opportunity and places in jeopardy the effective future operation of the entire 'freedom of choice' type plan."

...

In a suit brought by pupils in Oklahoma City, Oklahoma, the Court of Appeals for the Tenth Circuit recently affirmed a lower court order requiring that by 1970 "there should be the same percentage of non-white teachers in each school as there now is in the system." Board of Education of Oklahoma City Public Schools, Independent District No. 89 v. Dowell, No. 8523 (January 23, 1967), slip op., p. 22, affirming, 244 F. Supp. 971, 977-978 (W.D. Okla. 1965). The District Court had stated (p. 978) that such a requirement provided "for stability in school faculties during the integration process, . . . keying the change to personnel turnover figures indicating that approximately 15% of the total faculty is replaced each year." Although the evidence showed that there was no difference in the quality of performance between the white and non-white personnel in the school system, the Court of Appeals held (p. 22) that where "integration of personnel exists only in schools having both white and non-white pupils, with no non-white personnel employed in the central administration section of the system," there is "racial discrimination in the assignment of teachers and other personnel." Relying on the Supreme Court's decisions in Bradley and Rogers, the Court stated (p. 22) that "[t]he [lower court] order to desegregate faculty is certainly a necessity initial step in the effort to cure the evil of racial segregation in the school system."

Numerous district courts, in applying the law as elucidated by the Supreme Court and the courts of appeal of their various circuits, have entered orders in school desegregation cases requiring the desegregation of faculty and staff. In entering such orders, a few of the district courts have also set forth their reasons in memorandum opinions. One such opinion was issued by the United States District Court for the Eastern District of Virginia in refusing to approve a plan submitted by the School Board of Greensville County, Virginia, on the