CIVIL RIGHTS, AND A DRAFT OF A BILL TO ENFORCE THE CONSTITUTIONAL RIGHT TO VOTE, TO CONFER JURISDICTION UPON THE DISTRICT COURTS OF THE UNITED STATES TO PROVIDE INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PUBLIC ACCOMMODATIONS, TO AUTHORIZE THE ATTORNEY GENERAL TO INSTITUTE SUITS TO PROTECT CONSTITUTIONAL RIGHTS IN EDUCATION, TO ESTABLISH A COMMUNITY RELATIONS SERVICE, TO EXTEND FOR FOUR YEARS THE COMMISSION ON CIVIL RIGHTS, TO PREVENT DISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS, TO ESTABLISH A COMMISSION ON EQUAL EMPLOYMENT OPPORTUNITY, AND FOR OTHER PURPOSES

JUNE 19, 1963.-Referred to the Committee on the Judiciary and ordered to be printed

To the Congress of the United States:

Last week I addressed to the American people an appeal to conscience-a request for their cooperation in meeting the growing moral crisis in American race relations. I warned of "a rising tide of discontent that threatens the public safety" in many parts of the country. I emphasized that "the events in Birmingham and elsewhere have so increased the cries for equality that no city or State or legislative body can prudently choose to ignore them." "It is a time to act," I said, "in the Congress, in State and local legislative bodies and, above all, in all of our daily lives."

In the days that have followed, the predictions of increased violence have been tragically borne out. The "fires of frustration and discord" have burned hotter than ever.

At the same time, the response of the American people to this appeal to their principles and obligations has been reassuring. Private progress by merchants and unions and local organizations has been marked, if not uniform, in many areas. Many doors long closed to Negroes, North and South, have been opened. Local biracial committees, under private and public sponsorship, have mushroomed. The mayors of our major cities, whom I earlier addressed, have pledged renewed action. But persisting inequalities and tensions make it clear that Federal action must lead the way, providing both the Nation's standard and a nationwide solution. In short, the time has come for the Congress of the United States to join with the executive and judicial branches in making it clear to all that race has no place in American life or law.

On February 28, I sent to the Congress a message urging the enactment this year of three important pieces of civil rights legislation:

1. Voting.-Legislation to assure the availability to all of a basic and powerful right-the right to vote in a free American electionby providing for the appointment of temporary Federal voting referees while voting suits are proceeding in areas of demonstrated need; by giving such suits preferential and expedited treatment in the Federal courts; by prohibiting in Federal elections the application of different tests and standards to different voter applicants; and by providing that, in voting suits pertaining to such elections, the completion of the sixth grade by any applicant creates a presumption that he is literate. Armed with the full and equal right to vote, our Negro citizens can help win other rights through political channels not now open to them in many areas.

2. Civil Rights Commission.-Legislation to renew and expand the authority of the Commission on Civil Rights, enabling it to serve as a national civil rights clearinghouse offering information, advice, and technical assistance to any public or private agency that so requests. 3. School desegregation.-Legislation to provide Federal technical and financial assistance to aid school districts in the process of desegregation in compliance with the Constitution.

Other measures introduced in the Congress have also received the support of this administration, including those aimed at assuring equal employment opportunity.

Although these recommendations were transmitted to the Congress some time ago, neither House has yet had an opportunity to vote on any of these essential measures. The Negro's drive for justice, however, has not stood still-nor will it, it is now clear, until full equality is achieved. The growing and understandable dissatisfaction of Negro citizens with the present pace of desegregation, and their increased determination to secure for themselves the equality of opportunity and treatment to which they are rightfully entitled, have underscored what should already have been clear: the necessity of the Congress enacting this year-not only the measures already proposed-but also additional legislation providing legal remedies for the denial of certain individual rights.

The venerable code of equity law commands "for every wrong, a remedy." But in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens for which no effective remedy at law is clearly and readily available. State and local laws may even affirmatively seek to deny the rights to which these citizens.

are fairly entitled-and this can result only in a decreased respect for the law and increased violations of the law.

In the continued absence of congressional action, too many State and local officials as well as businessmen will remain unwilling to accord these rights to all citizens. Some local courts and local merchants may well claim to be uncertain of the law, while those merchants who do recognize the justice of the Negro's request (and I believe these constitute the great majority of merchants, North and South) will be fearful of being the first to move, in the face of official, customer, employee, or competitive pressures. Negroes, consequently, can be expected to continue increasingly to seek the vindication of these rights through organized direct action, with all its potentially explosive consequences, such as we have seen in Birmingham, in Philadelphia, in Jackson, in Boston, in Cambridge, Md., and in many other parts of the country.

In short, the result of continued Federal legislative inaction will be continued, if not increased, racial strife-causing the leadership on both sides to pass from the hands of reasonable and responsible men to the purveyors of hate and violence, endangering domestic tranquillity, retarding our Nation's economic and social progress and weakening the respect with which the rest of the world regards us. No American, I feel sure, would prefer this course of tension, disorder, and division-and the great majority of our citizens simply cannot accept it.

For these reasons, I am proposing that the Congress stay in session this year until it has enacted-preferably as a single omnibus bill-— the most responsible, reasonable, and urgently needed solutions to this problem, solutions which should be acceptable to all fair-minded men. This bill would be known as the Civil Rights Act of 1963, and would include-in addition to the aforementioned provisions on voting rights and the Civil Rights Commission-additional titles on public accommodations, employment, federally assisted programs, a Community Relations Service, and education, with the latter including my previous recommendation on this subject. In addition, I am requesting certain legislative and budget amendments designed to improve the training, skills, and economic opportunities of the economically distressed and discontented, white and Negro alike. Certain executive actions are also reviewed here; but legislative action is imperative.

I. EQUAL ACCOMMODATIONS IN PUBLIC FACILITIES

Events of recent weeks have again underlined how deeply our Negro citizens resent the injustice of being arbitrarily denied equal access to those facilities and accommodations which are otherwise open to the general public. That is a daily insult which has no place in a country proud of its heritage-the heritage of the melting pot, of equal rights, of one nation and one people. No one has been barred on account of his race from fighting or dying for America-there are no "white" or "colored" signs on the foxholes or graveyards of battle. Surely, in 1963, 100 years after emancipation, it should not be necessary for any American citizen to demonstrate in the streets for the opportunity to stop at a hotel, or to eat at a lunch counter in the very department store in which he is shopping, or to enter a motion picture

by the title. This authority has been limited, in the substitute, to prevent duplication of recordkeeping requirements. Where the employer, agency, organization, or committee is also subject to a State fair employment practice law, the Commission may not prescribe general recordkeeping requirements. Instead, it may require such notations on existing records or records required by law as are necessary because of the differences in methods of enforcement or of coverage between the State and the Federal law. Furthermore, to eliminate the possibility that employers who are Government contractors may have to prepare and file separate reports for two Government agencies, it is provided that where the employer files reports on his employment practices with the President's Committee on Equal Employment Opportunity, the Commission shall not require the filing of additional reports. It is likely that even without such a provision, the Commission and the President's Committee would have coordinated their respective reporting requirements; but this provision offers assurance to employers on that score.

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III. ANALYSIS OF THE EQUAL EMPLOYMENT OPPORTUNITY LAW

As noted above, the fundamental purpose of title VII of the Civil Rights Act of 1964 is to eliminate all employment discrimination based on race, color, religion, sex, or national origin in all industries affecting commerce. Coverage is set forth in various definitions in section 701,18 in various exemptions described in section 702,19 and in various provisos in section 703.20 As is obvious from the language of the act, especially the definitions of covered persons and organizations, the constitutional basis for the application of the act is the authority conferred on Congress to enact legislation to regulate employment which affects interstate and foreign commerce."

(a) Who is covered

Section 101 (b) defines a covered "employer" as "a person engaged in an industry affecting commerce who has twenty-five or more employees ***." 22 Section 701 (g) defines "commerce" as "trade, traffic, commerce, transportation, transmission, or communication" among or between the several States or between points in the same State if the terminus is reached through a point outside such State. The term also includes "commerce" within the District of Columbia and possessions. The term "industry affecting commerce" is patterned after and incorporates the definition of "affecting commerce" in the Labor Management Reporting and Disclosure Act of 1959," which, in turn, incorporates the definition of "affecting commerce" of the Labor Management Relations Act of 1947.25 By this technique, Congress invoked "the fullest jurisdictional breadth constitutionally permissible under the commerce clause." 20 In view of the broad scope of the commerce power sustained by the courts, there is little reason to doubt that it will reach the minimal standards contained in the act."

The term "employer" as used in title VII is given an added dimension by virtue of the definition of "person" in section 701(a). "Person" is there defined to include not only one or more natural persons, but also "partnerships, associations, corporations, mutual companies, joint-stock companies, trusts, and unincorporated organizations." Legal representatives, trustees, trustees in bankruptcy, and receivers also are "persons."

All these individuals and organizations are deemed to be covered employers if they are engaged in an industry affecting commerce and if they have 25 or more employees (when title VII becomes fully effective) for each workingday in each of 20 or more calendar weeks in the current or preceding calendar year.

Labor Board v. Reliance Fuel Corp., 371 U.S. 224, 226 (1963). 27 Senator Clark inserted a number of briefs on the constitutionality Congressional Record on Apr. 8, 1964. He concluded his comments on "that objection to the constitutionality of title VII can be nothing and not worthy of serious consideration." 110 Congressional P edition). See app. E.