Attorney General KENNEDY. No, Senator, but some of your descriptions of this bill do not seem reasonable.

In the first place there has to be a request before any action is taken by the Commissioner.

Senator ERVIN. I put that in.

Attorney General KENNEDY. First, there has to be a request for assistance. Many of the school districts that have had to face this problem in the past, Senator, have had a very difficult time. We all remember New Orleans and Little Rock. They had no place to look where they could obtain help and assistance. Representatives of the Department have had many conferences with local officials and community leaders in localities which have gone through the process of desegregation. But we are not experts in the field.

They had a very difficult time, Senator, in trying to work out the transition, find out which steps should be taken, how it would be wise to proceed.

A lot of other school districts are facing these same kinds of problems and we feel the Government should be able to help them, in a practical and meaningful way, not through the Department of Justice but through the Commissioner of Education. The Commissioner will, of course, render assistance only if they request aid and assistance. I would think anybody from the South, where there has been all of this discussion about how difficult this is, would recognize the fact that there is a problem on which somebody could give them advice and assistance. That is the purpose of this provision.

It is not an "operation brainwash," Senator.

Senator ERVIN. What does a person attempt to do when he sets out to develop an understanding in the minds of other people? Does it not mean to indoctrinate them?

Attorney General KENNEDY. No, Senator. May I just give you an example of how this provision would work. Assume a particular school district, voluntarily or by court order, is to be desegregated in September. One of the problems is whether there will be opposition from people in the local community. If so, what should be done about people who come into the vicinity of the school? How far away should they be kept? Should they be allowed to stay across the street, should they be allowed to stay a block away?

What steps should be taken to inform the students about how they should treat members of the other race, whom they are meeting as schoolmates for the first time? What about the parents? What is their understanding of how to meet the new situation? It will be a great help just to have frank and open discussions about some of the problems that will be created when a school finally takes a step toward desegregation.

I will tell you, Senator, that since I have been Attorney General, we have had Department representatives in, I expect, several dozen school districts to try to deal with this kind of problem. We have dealt with students, we have dealt with teachers and we have dealt with parents. But since the country is probably still going to be faced with desegregation problems, it is very important to have some agency other than the Department of Justice rendering this kind of service.

Senator ERVIN. Can we agree on this: That this provision would authorize the Commissioner, on application from a school board, to make a grant to "specialists" to give the parents, the schoolchildren, and the general public some education in this field?

Attorney General KENNEDY. What I think their aim and intention is is to give help and assistance in a difficult period in the history of the United States.

Senator ERVIN. And you say it is not to be used at all to indoctrinate or brainwash these parents and these schoolchildren and the general public into acceptance of the wisdom of the policies which may be involved?

Attorney General KENNEDY. First, the school district has either accepted desegregation voluntarily or a district court has ordered it. This is a decision that has been made at the local level, Senator.

Senator ERVIN. Do you know of any other Federal law which makes it the function of the Federal Commissioner of Education or of a school board to educate the general public by the use of tax moneys? Attorney General Kennedy. Senator, I do not know that we have faced a problem like this. We happen to have a very difficult problem in the field of education at the present time. We are going through a difficult period of transition and some assistance is needed.

We have tried to set forth in this bill a way in which aid could be rendered.

Senator ERVIN. But this is not to do that. This is to develop an understanding.

Attorney General KENNEDY. This is correct, Senator.

Senator ERVIN. The policies are already set by the school board? Attorney General KENNEDY. This is correct.

Senator ERVIN. This is not to develop an understanding among the people who operate the schools. It is to develop an understanding among the children, the parents, and the general public.

Do you deny that the authority given by these provisions will not be used to persuade the general public that the policies are wise? Attorney General KENNEDY. I think those policies have already been established, Senator.

Senator ERVIN. I know, but you are going to have an understanding of the problems.

Attorney General KENNEDY. That is correct.

Senator ERVIN. Is not this an authorization for the use of tax moneys to educate or indoctrinate or develop an understanding among the general public of the wisdom of the policies which are being pursued by the Federal Commissioner of Education in reference to desegregation and racially imbalanced schools?

Attorney General KENNEDY. No; I do not think so.

Senator ERVIN. That is the interpretation I think the words admit, and I do not concede that I am unreasonable in making that interpretation.

Let's get to the question of your understanding of the school desegregation decision.

Is it your understanding of the school desegregation decision that it requires the desegregation of schools?

Attorney General KENNEDY. That is correct, Senator. An individual cannot be denied the right to attend an institution, a school, because of his color.

Senator ERVIN. That is quite a difference.

My interpretation is, and it is concurred in by many responsible and informed people, that the Brown case does not require the integration of the schools of America, but merely prohibits the exclusion

In other words, it pro

of a child from a school because of his race.
hibits discrimination, but does not require integration.

Attorney General KENNEDY. I think it prohibits the assignment of students to schools on the basis of their race.

Senator ERVIN. I will read something I have read into the record before. Perhaps you are familiar with it.

I refer to the opinion of Judge John J. Parker in the case of Briggs v. Elliott, 132 Fed Supp. at page 776. This was the Clarendon County School case, from Clarendon County, S.C.

This opinion was written after the Brown case had reversed Judge Parker's first decision sustaining the separate but equal doctrine. Judge Parker explained the Brown case in these words:

It has not decided that the Federal courts are to take over or regulate the public schools of the States. It has not decided that the States must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend. What it has decided and all that it has decided, is that a State may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Supreme Court, the State may not do directly or indirectly, but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbit such segregation as occurs as a result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The 14th amendment is a limitation upon the exercise of power by the State or State agencies, not a limitation upon the freedom of individuals. Do you agree or disagree with that?

Attorney General KENNEDY. I would agree with the statement, Senator.

Senator ERVIN. On August 29, 1962, Chief Judge Wright of the U.S. District Court for the District of Deleware, handed down an interesting opinion to the same effect. His opinion is reported in 207 F. Supp. 820. I read a portion of the opinion of Chief Judge Wright starting at page 823:

Counsel for the Negro children predicate the right of transfer on the grounds that the Rose Hill board and the State board in its approval of the former's plan have acted unconstitutionally. It is argued that the State is compelled by the equal protection clause of the Federal Constitution to provide affirmatively an integrated education. Thus Delaware must insure the fact that Negroes go to school with whites, a principle which allegedly has been flagrantly violated in this case.

After stating the contentions of the plaintiffs in that fashion, Judge Wright says this:

The court holds that the States do not have an affirmative constitutional duty to provide an integrated education. The pertinent portion of the 14th amendment of the U.S. Constitution reads:

"Nor shall any State deny to any person within its jurisdiction the equal protection of the laws."

This clause does not contemplate compelling action. Rather, it is a prohibition preventing the States from applying their laws unequally. When interpreting the equal protection clause in the Brown case, the Supreme Court held only that a State may not deny any person on account of race the right to attend a public school.

Chief Justice Warren, speaking for the Court said:

"To separate them (Negroes) from others solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

The clear implication of this statement is that if races are separated because of geographic or transportation considerations or other similar criteria, it is no concern of the Federal Constitution. Thus discrimination is forbidden, but integration is not compelled.

The CHAIRMAN. We will recess now subject to the call of the Chair. (Whereupon, at 12:30 p.m., the committee recessed, subject to the call of the Chair.)

CIVIL RIGHTS LEGISLATION

THURSDAY, AUGUST 8, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D. C.

The committee met, pursuant to notice, at 10:40 a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Johnston, Ervin, Hart, Kennedy, Dirksen, Hruska, Keating, and Scott.

Also present: Joseph A. Davis, chief clerk; L. P. B. Lipscomb and Robert Young, professional staff members.

The CHAIRMAN. The committee will come to order.

STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES; ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISIONResumed

Senator ERVIN. Mr. Chairman, in order that all people who may be interested in the matter and who may read this record can have the benefit of the salient decisions involved in so-called school desegregation, I would like to have them printed in full in the record at this point. They are the decision of the Supreme Court of the United States in Gong Lum v. Rice, 275 U.S. 78, which was handed down in 1927; the first decision in Briggs v. Elliott, 98 Fed. Sup. 529, which was handed down in 1951; Brown v. Board of Education, 347 U.S. 483, which was handed down May 17, 1954.

I would also like to have printed in the record the subsequent decision in Briggs v. Elliott, 132 F. Supp. 776. I will supply a copy of it to the reporter. I supply copies of these decisions to the reporter with the request that they be returned to me after they have been placed in the record.

(The material referred to follows:)

GONG LUM ET AL. v. RICE ET AL.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI.

No. 29.

Submitted October 12, 1927.-Decided November 21, 1927.

A child of Chinese blood, born in, and a citizen of, the United States, is not denied the equal protection of the laws by being classed by the State among the colored races who are assigned to public schools separate from those provided for the whites, when equal facilities for education are afforded to both classes. P. 85.