CIVIL RIGHTS LEGISLATION

FRIDAY, AUGUST 23, 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 Olin D. Johnston presiding. Present: Senators Johnston, Ervin, Kennedy, Dirksen, Hruska, Keating, and Fong.

Also present: Senator Gore.

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

Senator JOHNSTON. The committee will come to order.

We will hear from the Attorney General on title VI, "Nondiscrimination in Federally Assisted Programs."

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

Attorney General KENNEDY. I have just a short statement, Mr. Chairman,

Senator JOHNSTON. You may proceed.

Attorney General KENNEDY. Thank you.

I have furnished the committee with a revised draft of title VI of S. 1731, relating to nondiscrimination in Federal assistance programs. These changes spell out in positive terms and in greater detail the action which is to be taken to effectuate the policy against discrimination and, in addition, provide judicial review of executive action terminating assistance because of discrimination.

As revised, title VI consists of four sections.

Section 601 of the revision declares the policy of the United States

that:

No person shall, on the ground of race, color, religion, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. This is an unequivocal statement of basic policy. As the President said in his message of June 19, 1963:

Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.

The remaining sections of title VI deal with the methods of implementing this policy.

I think all of us must agree that the overriding purpose of any nondiscrimination legislation should be to end discrimination, not to cut off assistance. Title VI makes that purpose plain.

Section 601 declares the policy. Section 602 requires each agency to determine the most effective means of carrying out that policy in a variety of different programs, each with its particular statutory purpose and administrative scheme.

The basic purpose of title VI is to insure nondiscrimination in all Federal programs. If necessary to secure this purpose, an agency may, under section 603, bring a suit to enforce compliance with its rules and regulations. It may also, if this is deemed more effective, terminate a program in which discrimination continues. In either event, no action can be taken until the noncompliance has been brought to the attention of the appropriate State or local authorities and efforts made to secure voluntary compliance.

Section 604 adds a provision for judicial review as a check against the possibility that an agency might impose sanctions arbitrarily or because of a mistake in fact. This bill would give a right of judicial review to any person aggrieved by termination of assistance pursuant to section 602.

With its emphasis on ending discrimination, rather than terminating assistance, and its provision for judicial review, the revised title VI constitutes an improvement on the original proposal.

Enactment of title VI will provide clear auhority to end discrimination in federally assisted programs. It will put the Congress clearly on record as favoring a principle which is basic to the ideals of this country. I invite and welcome Congress support of this principle, and I urge that title VI be included in the Civil Rights Act of 1963. Thank you, Mr. Chairman.

Senator JOHNSTON. Senator Ervin, do you have any questions? Senator ERVIN. I have questions; yes; but I thought maybe the Senator from Illinois wanted to ask some questions about the equal accommodations provision. If you do

Senator DIRKSEN. I will defer.

Senator KEATING. Mr. Chairman, would the distinguished Senator from North Carolina yield for a short comment on this new title VI? Senator ERVIN. Yes.

Senator KEATING. I want to express my commendation of the Attorney General and the Department of Justice for this language which they are now submitting, which seems to me a very great improvement over the original title VI that was incorporated in the bill.

It follows very closely the amendments to title VI or the substitution for it which Senator Ribicoff and I submitted. The discretionary approach of the original bill, without any provision for enforcement or review, seemed to me quite unsatisfactory. This new language, similar to our amendment, makes the requirement mandatory, provides the machinery for its enforcement, and allows judicial review to prevent unfairness. It is a much sounder statutory scheme for dealing with the problem. It materially strengthens the bill, in my judg

ment.

There is only one respect in which—and I shall not impose on the Senator from North Carolina by asking questions about it now, but I do want to question the Attorney General about it later-there is only one respect in which there is any material departure from the amendment offered by Senator Ribicoff and myself, which was a composite of original amendments put in by each of us and one upon which we deferred. That is, there is no provision in this amendment for enforcement proceedings by the victims of unremedied discrimination. Such provisions are allowed in voting cases, are allowed in proposed education and public accommodations titles of the bill. If the States can obtain judicial review where funds are unfairly withheld, as the Attorney General proposes in this amendment, the victims of discrimination, it seems to me, should have access to the courts where the funds are unfairly granted. This seems to me only elemental fairness and it should be the right of judicial review to both parties that was included in our amendment.

However, I end as I began, by saying that I believe this is a substantial improvement on the original title VI. I hope it will have the very careful consideration, both of this committee and of the Senate. Thank you, Mr. Chairman.

Senator ERVIN. I will make a confession to the effect that I did not see this proposed change until after 5 o'clock yesterday afternoon. I read it then and have been suffering with several cases of mental indigestion ever since.

Since this change takes out the provisions of the old title VI dealing with what I call FEPC procedure, I prefer to go directly to title VII and come back to title VI after I have had an opportunity to study it.

Before I do, however, I want to make some statements concerning matters I thought were extraneous to the discussion, which were brought in, not by me but by the Attorney General. The Attorney General brought out the fact, that, according to the census of 1960, 32,143 North Carolina Negroes have had no schooling. At that time, I suggested, from my lifelong acquaintance with North Carolina, that these people were elderly people and not young people like the Attorney General.

I have gone into the census and, if my figures are deemed incorrect, I will welcome any suggested correction.

I found that, of the 32,143 North Carolina Negroes who had received no schooling according to the census of 1960, 19,395 were born in 1905 or earlier, leaving only 12,748 who were born since 1905.

In other words, 19,395 of these people were people who were 20 years old or upward when my good friend, the Attorney General, was born. I found that an additional

Senator KEATING. Will the Senator yield? I think the Attorney General is younger than that.

Senator ERVIN. The Attorney General's biography indicates that he was born in 1925.

Senator KEATING. Was the figure you were using 1925 or 1905? Senator ERVIN. I said that 19,395 of the 32,143 Negroes residing in North Carolina, whom the Attorney General said the census of 1960 disclosed had had no schooling, were at least 20 years of age when the Attorney General was born.

Senator KEATING. Excuse me.

Senator ERVIN. The number born subsequent to 1905 were 12,748. Of that number, the number born between 1915 and the end of 1925 was 10,248, leaving approximately 2,500 Negroes of the age of the Attorney General who had no schooling according to the census of

1960.

I think that indicates the truth of what I said, that North Carolina has done a pretty good job trying to educate all its children of both races, at least since the Attorney General and myself were born.

Do you have any comment you want to make?

Attorney General KENNEDY. No, Senator. I think there are a lot of other figures giving comparisons of whites and Negroes, not only in North Carolina but in some of the other States, Senator, and not only for those who have had no schooling

Senator ERVIN. Oh, yes.

Attorney General KENNEDY. Could I just finish?

Senator ERVIN. Yes.

Attorney General KENNEDY (continuing). But also for those who have attended the fifth and sixth grades. No matter, the point is that Negroes have suffered considerably in the field of education. I do not think you can get away from that fact and I think that a remedy is possible and that we should come forward with some action to try to deal with the problem.

Senator ERVIN. There was one set of figures I noticed in rereading your testimony that you failed to give, in contrasting North Carolina and Massachusetts. That figure was the number of nonwhites in the State of Massachusetts in 1960 were without schooling. Do you have those figures there?

Attorney General KENNEDY. Yes; I put them in the record.

Senator ERVIN. No, you did not. I mean I could not find them in the record.

Attorney General KENNEDY. I put the pamphlet in the record. I offered it.

Senator ERVIN. You offered the exhibit, but it is not printed and is not available to me.

Attorney General KENNEDY. The committee must have it, Senator. I offered it to the committee.

Senator ERVIN. I can give the figure to you.

Attorney General KENNEDY. That will expedite it.

Senator ERVIN. But I reread the record and you did not give this figure except insofar as it may have been included in an exhibit.

According to my review of the census of 1960, there were 81,020 members of the Caucasian race then residing in Massachusetts who had no schooling at all. Do you controvert those figures?

Attorney General KENNEDY. As I say, they are on the pamphlet that I submitted, sir.

Senator ERVIN. Let's ask Mr. Marshall if he would mind stepping over there and verifying them.

Attorney General KENNEDY. He can read it from there. He says it is accurate. We are all set, Senator. He says that is accurate. Senator ERVIN. I am not going to argue, but I am going to admit that it gives me a little bit of puzzlement as to why you think it is so iniquitous for North Carolina to have, in 1960, a total of 32,143 Negroes who had had no schooling and not iniquitous for Massachu

setts to have, at the same time, 81,020 white people who had no schooling.

Attorney General KENNEDY. What is that? Out of what number? We can discuss this, Senator. Out of how many people in Massachusetts?

Senator ERVIN. Out of the total population in Massachusetts.

Attorney General KENNEDY. How many Negroes have had no schooling in Massachusetts?

Senator ERVIN. 2,409.

Attorney General KENNEDY. That is not a bad figure. But I think it would be much better if everybody had schooling.

How many white people in Massachusetts, Senator?

Senator ERVIN. The number of white people within these age groups

Attorney General KENNEDY. How many white people? What is the comparison with North Carolina?

Senator ERVIN. Let me give the comparison you made. According to the census of 1960, North Carolina has 2,307,171 residents of the ages of 25 years and upward, and Massachusetts has 3,010,617 residents of the ages of 25 years and upward.

Attorney General KENNEDY. Senator, I have here the chart of persons 25 years old and over with less than 5 years of school completed. The State that is at the bottom is Louisiana with 21 percent; South Carolina with 20 percent; Mississippi with 18 percent; Georgia with 17 percent; North Carolina with 16 percent; Alabama with 16 percent; Arkansas with 15 percent. Massachusetts has 6 percent.

Senator ERVIN. You still

Attorney General KENNEDY. Senator, once again, I do not think we are speaking—we are speaking English, but we are not speaking the same language.

There is a problem here. It is a problem in education; it is a problem in voting; it is a problem in public accommodations; it is a problem in the equal treatment of the Negro. The Negro has not been treated equally. We would like to correct this. we would like you to join us in correcting it, but you are opposed to every provision of this bill.

Senator ERVIN. I wanted to see why you are so concerned about the fact that 32,143 Negroes who had no schooling, all of whom except 2,500 were born before you, were residing in North Carolina in 1960 and have no concern about the fact that at the same time, 81,020 members of the Caucasian race residing in Massachusetts had none.

Attorney General KENNEDY. Senator, I am concerned about that. And I am concerned to see that they get an education. But if you compare the overall figures, the State of Massachusetts compares favorably to any other State in the Union. The fact is, when you look at illiteracy and look at lack of education, and compare Massachusetts or any of these Northern States with the State of North Carolina and the State of Mississippi and the State of Alabama, there is a great, great difference.

The reason, the basic reason there has been a difference, is that the Negro has not been permitted to have an adequate education in the past.