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 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. In several opinions, the courts have expressed the view that in some circumstance, free choice plans may not be an effective means of desegregating schools. The courts have stated that if experience shows that a plan is ineffective, the plan should be modified to correct whatever problems may exist. Thus in the El Dorado case, the court stated:

Even though the "freedom of choice" has been recognized by the H.E.W. regulations as one method of achieving integration and also has been recognized and approved by some court decisions, it is still only in the experimental stage and it has not yet been demonstrated that such a method will fully implement the decision of Brown and subsequent cases and the legislative declaration of [Section 601] of the Civil Rights Act of 1964. Both decisional and statutory law positively and affirmatively call for school districts set upon a racially nondiscriminatory basis. The "freedom of choice" plan is treated in the Bradley dissent, supra, as "only an interim measure, the adequacy of which is unknown." However, since this method could prove practical in achieving the goal of a nonsegregated school system, it should be allowed to demonstrate its efficacy to afford the constitutional guarantees which plaintiffs are entitled to as a matter of right. We, therefore, find that the "freedom of choice" plan is a permissible method at this stage. (352 F. 2d at pages 20-21)

And in the Greensville County case, the court declared that a freedom of choice plan may be invalid. The pertinent part of the opinion states:

This circuit has recognized that local authorities should be accorded considerable discretion in charting a route to a constitutionally adequate school system. Freedom of choice plans are not in themselves invalid. They may, however, be invalid because the "freedom of choice" is illusory. The plan must be tested not only by the manner in which it operates to provide opportunities for a desegregated education. In this respect operation under the plan may show that the transportation policy or the capacity of the schools severely limits freedom of choice, although provisions concerning these phases are valid on their face. This plan, just as the Richmond plan approved in Bradley, is subject to review and modification in the light of its operation. It is clear therefore that the effectiveness of a free choice plan must be considered by the Commissioner in determining whether a school system is in compliance with 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 and 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.

VII

In conclusion, 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. The responsibilities 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. STATEMENT OF HAROLD HOWE II, U.S. COMMISSIONER OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

Mr. Chairman and members of the committee, in 1954, more than a decade ago, the Supreme Court declared segregated public schools to be unconstitutional. The Court concluded that segregated education is inherently unequal, and that "in the field of public education the doctrine of separate but equal has no place."

In the following term the Court did not direct that the schools be desegregated forthwith, but rather with "all deliberate speed."

Ten years later, many schools were still being operated on a segregated basis. It was in this context that in July 1964 Congress enacted Title VI of the Civil Rights Act of 1964. That Title expressly requires all Federal agencies, including the Department of Health, Education, and Welfare, to assure that no person be subjected to discrimination under any program or activity receiving Federal financial assistance. This law obliges the Department to withhold Federal funds from any school system that continues to maintain a segregated school. It was in order to discharge this responsibility that we issued the Guidelines and established the appropriate administrative machinery for enforcing them.

The school desegregation guidelines were issued by the Office of Education to provide an objective basis for carrying out our obligations under Title VI of the Civil Rights Act of 1964. Not only did local school districts request consistent guides to assist them in undertaking their obligations, but the Office of Education required a policy statement to assist in administration of a large program. The fundamental principles of the guidelines are based upon the Civil Rights Act of 1964 and upon court decisions. The courts have said, for example: that faculty desegregation is a necessary element of school desegregation; that freechoice plans must work fairly; and that school boards have an obligation to work affirmatively to achieve desegregation. The guidelines articulate the basic principles already enunciated by the courts and the way they apply to the broad administrative responsibility of the Office of Education.

As a brief summary we would call attention to the following points:

1. The guidelines were developed to meet the needs of the schools for a statement concerning their obligations under Title VI of the Civil Rights Act. The primary purpose of the guidelines and of our administration of Title VI is to help school districts to stay in compliance so that Federal funds may flow to the benefit of school children.

2. Our own attorneys in the Department of Health, Education, and Welfare and those in the Justice Department were asked to examine the guidelines prior to their issuance in March 1966 to determine whether they are consistent with Title VI. These attorneys have agreed that the guidelines are consistent with Title VI and follow the Federal Court rulings.

3. The Courts have pointed out that as long as school staffs are still assigned on a segregated basis the existence of the Negro school and the white school as separate parts of a dual school system cannot be overcome.

4. The guidelines do not mention and do not require "racial balance" or the correction of racial "imbalance." Nor have we in the administration of our obligations under Title VI sought to establish "racial balance." They deal only with desegregation plans designed to eliminate the dual school systems for whites and Negroes, systems being operated in violation of the 1954 Supreme Court Ruling.

In response to questions which have arisen over the past few months concerning the legality, the purpose, and the operation of the 1966 School Desegregation Guidelines, we prepared a special statement which the Secretary of Health, Education, and Welfare, John Gardner, sent on April 9, 1966, as a letter to Congressmen and Governors.

What the letter said was this:

"We have received a number of inquiries about our revised school desegregation guidelines, some of which reflect a misunderstanding of their purpose and intent. You will probably have received similar inquiries, so I think it might be useful to restate the purpose, background, and meaning of the revised guidelines.

"For the same reason, I have asked U.S. Commissioner of Education Harold Howe II and senior members of his staff to meet with State and local school officials to make clear the purpose and nature of these revised guidelines.

"The Courts and the Congress have spoken clearly on the basic issues of the desegregation of public schools. The Supreme Court decided that question twelve years ago. Since then Congress has plainly established in law that pupils may not be assigned to schools on the basis of their race or color. Title VI of the Civil Rights Act of 1964 expressly requires the Executive Branch to insure that funds for federally assisted programs, including education, must not be used to support discrimination or segregation.

"This Department, like all other executive agencies, is required by Title VI not to use Federal funds to perpetuate racial segregation. We have found that uniform rules contained in guidelines issued by the Commissioner of Education are the best method of dealing with both the operational problems of school districts and our own responsibilities under the law. "The first school guidelines were issued in April, 1965, and they were not widely questioned. There was a widespread effort by school districts to comply. In many areas, school desegregation began for the first time smoothly and without incident. In other areas, desegregation, already begun, progressed substantially.

"From the experience under the original guidelines, we learned that effective desegregation depends on determination by local communities. The guidelines did not ask school districts formerly segregated to desegregate overnight. They recognized that the remedy to be fashioned should take into account administrative problems. Thus, they asked that a substantial beginning be made; and this was done. All but 300 of the more than 2,000 affected school districts agreed to desegregate all 12 grades by the fall of 1966, a full year ahead of the 1967 target contemplated by the original guidelines and required by the Courts. Only 79 chose not to comply. "The legal principle, defined by the Courts, is that desegregation must progress, and that as it proceeds in a particular school district, administrative problems offer progressively less justification for delay. During 1965 and this year, the Courts repeatedly announced requirements which put school districts further along the road toward desegregation than did the original guidelines. This was a foreseeable and inevitable result, since the guidelines were of general applicability while Courts fashioned their orders on a case-by-case basis.

"From the issuance of revised Court orders it became clear that school districts not operating under Court orders could and should make more progress this year toward desegregation than was required by the original guidelines. In light of this fact and of our experience with problems under free choice plans for compliance, we revised the guidelines.

"One aspect of the revised guidelines about which there has been some inquiry is faculty desegregation. Courts have held that meaningful desegregation cannot occur so long as segregation of faculty members persists. The 1965 guidelines pointed toward faculty desegregation by asking school boards to hold desegregated staff meetings and to plan further steps the ensuing year. The 1966 guidelines, following the decisions of Courts, provide for desegregation of the faculty to begin.

"The guidelines do not, as some have assumed, require the instantaneous desegregation of the faculty in every school building in every district. Nor do they prescribe rigid means. They provide considerable flexibility as to how a district might undertake faculty desegregation. What the guidelines do require is that a reasonable beginning be made and that reasonable We believe that, progress be achieved beyond what was achieved last year. with determination and good faith, these goals can be attained.

"The second area of concern involves the percentages mentioned in the guidelines. Some have contended that this portion of the guidelines imposes a formula of 'racial balance.' The contention misconceives the purpose of the percentages.

"The prevailing method of desegregation is what is called the 'free choice' plan. Under such a plan, students select their schools instead of being assigned to them on a geographic basis. Courts have expressly conditioned their approval of such plans on affirmative action by school boards to insure that 'free choice' actually exists. It is our responsibility to review such plans to insure that the choice is, in fact, free and to indicate to school districts what procedures should be used to assure true freedom of choice.

"In seeking appropriate criteria to guide us in review of free choice plans, we have adopted the objective criteria applied by the Courts in similar situations. One such criterion is the distribution of students by race in the various schools of a system after the students have made their choices. If substantial numbers of Negro children choose and go to previously all-white schools, the choice system is clearly operating freely. If few or none choose to do so in a community where there has been a pattern of segregation, then it is appropriate that the free choice plan be reviewed and other factors considered to determine whether the system is operating freely.

"With more than 2000 separate districts to consider, such percentages are thus an administrative guide which helps us to determine those districts requiring further review. Such review in turn will determine whether or not the freedom of choice plan is in fact working fairly.

"If the purposes of the guidelines and their relationship to the decision of the Courts and the laws of the Congress are understood, I believe our general aim also will be clear. It is to assist local officials to comply with the law in good faith and to enable us to fulfill our responsibilities in administering Title VI. "Sincerely,

JOHN W. GARDNER, Secretary."

Mr. Chairman, there are just two additional topics I would like to mention. The first has to do with Office of Education administration of its obligations under Title VI of the Civil Rights Act. In this connection we would make the following points:

1. The purpose of our administrative activities is to help school districts to get into compliance and avoid any issue of loss of funds.

2. As of September 26, there were 37 school districts which had lost all Federal funds because of failure to submit an acceptable desegregation plan. There are an additional 73 districts which have been cited for hearings and which may lose their funds if the rulings of Federal examiners go against them. Approximately 2,000 school districts, which formerly maintained dual school systems, are receiving funds as the result of using the compliance procedures.

3. We have attempted to focus the attention of our small staff on those districts which have had the greatest problems with making their free-choice plans operate effectively. We have deferred the award of new funds to some 70 of these districts, but they continue to receive money for programs already approved. This deferral of funds follows a procedure established by the Attorney General.

Secondly, I would like to mention that we have received substantial help in our school desegregation efforts from State and local officials. The State of Florida provides an example. Two years ago, less than 3 percent of all Florida Negro children attended school with whites. Last year, the percentage had risen almost 10 percent, and it is estimated that this year it will reach close to 20 percent. Such a significant increase is due in no small part to the acceptance by the State educational agency of a constructive role in eliminating Florida's dual system of schools as rapidly as possible.

Wherever possible, the Office of Education tries to decentralize administrative responsibility for desegregation so that those who make the initial decisions are in close contact with local school officials. We also seek to strengthen the capabilities of existing State and local educational agencies for providing assistance and leadership. A Title IV grant has been made to the Florida educational agency to establish a full-time unit of 10 people, working at the State level, to help local schools with desegregation problems. Similar units have now also been established in other Southern and border States-Georgia, Tennessee, Delaware, and Maryland.

Finally let me say that any school district that is not in compliance with the provisions of the Civil Rights Act seems to us to represent a defeat. It means failure on our part and failure on the part of those responsible for the schools. Our failure arises from our inability to be of sufficient help in achieving voluntary compliance. The failure of the schools arises from some combination of local conditions that threatens the opportunities of all children to receive the best possible education. We are seeking always to be fair and just. Our legal responsibility is clear-to adhere to the procedures and policies established in the Civil Rights Act of 1964 and supported by the decisions of the Federal courts.

MEMORANDUM

To: Harold Howe II, Commissioner of Education.
From: Alanson W. Willcox, General Counsel.

MARCH 7, 1966.

Subject: Title VI-Civil Rights Act-Revised Statement of Policies for Desegregation Plans-Test for Performance.

This relates to your request for my opinion on the validity of a test of effectiveness to determine the need for a change in a school system's freedom of choice desegregation plan. The test would be based upon the percentage of Negro

students who were in fact transferred from segregated schools. The percentage of transfers expected would vary as outlined in the Statement of Policies, dependent upon the rate of transfers in previous years.

"Where there is substantial deviation from these expectations, and the Commissioner concludes, on the basis of the choices actually made and other available evidence, that the plan is not operating fairly, or is not effective to meet constitutional and statutory requirements, he will require the school system to take additional steps to further desegregation.

"Such additional steps may include, for example, reopening of the choice period, additional meetings with parents and civic groups, further arrangements with State or local officials to limit opportunities for intimidation, and other further community preparation. Where schools are still identifiable on the basis of staff composition as intended for students of a particular race, color, or national origin, such steps must in any such case include substantial further changes in staffing patterns to eliminate such identifiability.

"If the Commissioner concludes that such steps would be ineffective, or if they fail to remedy the defects in the operation of any free choice plan, he may require the school system to adopt a different type of desegregation plan." [Italic added.]

The Commissioner's authority in this area stems from the HEW Regulation to effectuate title VI of the Civil Rights Act of 1964 (45 CFR Part 80). Under section 80.4(a) of that Regulation and pursuant to requirements under section 80.4(b), an assurance of compliance, which has been standardized within the Department as HEW Form 441, is required of each local school system as a condition to the extension of Federal financial assistance.

Section 80.4 (c), however, provides an alternative to the provision of such an assurance if the school system submit a final desegregation order of a Federal Court or "a plan for the desegregation of such school or school system which the Commissioner of Education determines is adequate to accomplish the purposes of the Act and this Regulation, and [if the school system] provides reasonable assurance that it will carry out such plan; in any case of continuing Federal financial assistance the Commissioner may reserve the right to redetermine, after such period as may be specified by him, the adequacy of the plan to accomplish the purposes of the Act and this regulation."

Three questions are presented as discussed below.

1. May the Commissioner determine the adequacy of a plan solely on the basis of results achieved as measured by the percentage of students who transfer from segregated schools and without regard to whether the school system acted to prevent transfer?

In the years immediately following the second Brown decision there were many assertions that so long as a school system with racially segregated schools did not prevent Negro students from transferring to other schools, the students were not deprived of their Constitutional rights. In short, it was not the maintenance of a dual school system, but the prohibition against the Negro students' attending the schools attended by whites which constituted discrimination."

Whether this was ever generally considered good law is immaterial for our purposes here, because clearly it is not the rule followed by the courts today. It now is well recognized that the discriminatory effects of almost a century of compulsory segregation and the many years of involuntary servitude which preceded that, are not overcome by allowing Negro students to attend the formerly all white schools while the school system continues to maintain schools intended for students of a particular race, color, or national origin. In Singleton v. Jackson Municipal Separate School District 348 F.2d 729, 730, note 5 (C.A. 5, 1965) the Court stated:

"In retrospect, the second Brown opinion clearly imposes on public school authorities the duty to provide an integrated school system. Judge Parker's well know dictum (The Constitution, in other words, does not require integration. It merely forbids discrimination.') in Briggs v. Elliott, E.D.S.C. 1955, 132 F. Supp. 766, 777, should be laid to rest. It is inconsistent with Brown and the latter development of decisional and statutory law in the area of civil rights."

1 Brown v. Board of Education, 349 U.S. 294 (1955).

2 See Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.. S.C.. 1955); Avery v. Wichita Falls Ind. School Dist., 241 F. 2d 230 (C.A. 5th, 1957); cert. den, 353 U.S. 938 (1957); Boston v. Rippy, 285 F. 2d 43 (C.A. 5th, 1960).