FEDERAL FUNDS

Title VI would prevent the anomaly that results when Federal funds are used to suport activities and programs that are operated on a discriminatory basis. Racial discrimination in such programs cannot be justified. Equally unjustifiable is discrimination in the employment practices of organizations administering such programs.

Some statutes authorizing Federal assistance define the conditions of eligibility so precisely, however, that there may be no discretion to impose additional conditions relating to discrimination. Congress is considering numerous proposals to deal with this situation. Most of them provide that Federal backing shall be withdrawn automatically and without exception from any program which is administered in a discriminatory manner.

I strongly favor the principle that these programs be nondiscriminatory, but I think that a mandatory withdrawal of financial assistance is too sweeping.

School lunch programs, disaster assistance programs, the emergency granting of defense contracts, and the like, should not have to be cut off suddenly certainly not until every other avenue has been explored. By granting discretionary authority to withhold financial support from any program in which racial discrimination is practiced, title VI would reach the heart of the problem, yet provide appropriate flexibility.

EMPLOYMENT

The final title of S. 1731 would give statutory authority to the present Committee on Equal Employment Opportunity under the direction of Vice President Johnson in the field of Federal employment and employment under governmental contracts.

The scope of the Committee's work is extensive. In 1962, according to recent testimony of the Secretary of Labor before a House committee, the Federal Government employed some 2.3 million persons, and Government contractors more than 20 million persons.

The granting of statutory authority to the present Committee will give it the prestige of congressional authorization and greater operational stability because of direct access to appropriated funds. The leadership, powers, and activities would remain the same.

The Committee thus would be strengthened in its efforts to end discrimination in employment.

However, while we talk about discrimination in employment, let us not overlook the basic fact that the answer to much of the problem is in creating more jobs through greater economic growth, through adequate and improved education of the young, and through retraining of adults. And we are not concerned only with jobs for Negroes, but jobs for all Americans.

The President's tax program with its $10-billion plus of tax reduction would help open the door to full employment. For at least onefifth of our fellow Americans, the benefits of the President's programfaster economic growth and more jobs-would offer more exits from poverty.

The relationship between restoring a faster growth rate in our economy and eliminating discrimination is evident from the fact that neither poverty nor unemployment is evenly shared.

Poverty still afflicts about one-half of our nonwhite citizens, but less than 20 percent of our white population. The unemployment rate for nonwhites is 10.3 percent as compared with 5 percent for whites.

These statistics reflect accurately that discrimination thrives on limited job opportunities and economic slack, and the whole Nation suffers not only morally but economically.

Our proposals relating to civil rights are steps in the right direction the President has chartered toward achieving our common goal of maximum employment, production, and purchasing power.

So is the Manpower Development and Training Act, the Area Redevelopment Act, the youth employment bill, and the proposed expansion of vocational and adult education programs.

The bill before you is not intended as a cure-all for all the problems of racial discrimination in America. No single piece of legislation can ever pretend to be that.

But it can and will do more toward righting the wrongs of racial oppression in this country than any other measure possible at this time.

This Government believes in States rights-in the principle of the less Federal intervention the better. But we can't forget that a citizen of Mississippi, of Alabama, or any other State is also an American citizen.

We expect him to obey American laws, to pay American taxes, to fight and die in American wars, whatever the color of his skin.

States rights, as our forefathers conceived it, was a protection of the right of the individual citizen. Those who preach most frequently about States rights today are not those seeking the protection of the individual citizen, but his exploitation. The Federal Government has a duty, a responsibility, to give protection to its citizens no matter what part of the country in which they reside.

The time is long past-if indeed it ever existed-when we should permit the noble concept of States rights to be betrayed and corrupted into a slogan to hide the bald denial of American rights, of civil rights, and of human rights.

This bill will help to bring to law what we have always known in our hearts to be justice.

We have a need, and for this need there exists a remedy. Whether the remedy will be supplied is up to Congress.

No issues are more urgent today than those with which this legislation deals. And there is no better way to begin resolving those issues than through the prompt enactment of this legislation into law.

Thank you, Mr. Chairman.

Senator KEFAUVER. Mr. Attorney General, I think you have made a very forceful and well prepared statement. I am sure all of us will have a lot of questions to ask, a lot of things we want to find out about. I want it to be understood that my questions do not indicate any doubt of the need for the legislation. We are all very concerned about these matters, and I agree that many of the conditions which you have mentioned need to be seriously studied with a view to reaching an effective solution. So that we can make an effective study of your proposal, I do wish to ask a few questions.

Sir, on page 4 of your statement, you talk about the use of the commerce clause in a number of instances to regulate private business enterprises. You mention the National Labor Relations Act, the Fair Labor Standards Act, quite a number of others.

Is there any substantial difference between the wording of the commerce clause about what is in commerce and these other acts and in the bill that we have here, S. 1731, beginning on page 13?

In other words, some of these acts, as I remember, say that if it is in interstate commerce, like the Federal Trade Commission Act, others, like the National Labor Relations Act, regulate the transaction as it affects interstate commerce. Is there any substantial difference?

Attorney General KENNEDY. No; I think the court decisions, Senator Kefauver, particularly since 1938, have made it quite clear that the test is whether they affect interstate commerce and the courts have sustained legislation which reads either in or affects, on that basis.

Senator KEFAUVER. How many of these other acts that you have referred to and enumerated use the word "substantial" or would you supply that for the record?

Attorney General KENNEDY. Well, I know, for instance, the Clayton Act uses "substantial."

Senator KEFAUVER. Section 7 of the Clayton Act?

Attorney General KENNEDY. Yes; there are quite a number of statutes statutes have been passed by Congress that use the word "substantial" and it has been used widely in court decisions as well.

Senator KEFAUVER. I must say frankly that the problem of a person knowing whether what he is doing is substantial in connection with the matters related on pages 14 and 15 is a problem that gives me a great deal of concern and I am sure other Senators and yourself.

Attorney General KENNEDY. I would say, Senator, that even if you withdrew the word "substantial", even if you did not have the word "substantial", you would still have the same problem.

Then it would be a question of what affected interstate commerce. And still, even if you did not have the word "substantial", you would still have the question, unless you want to put in the bill precise mathematical definitions of some of these matters as to what you want to cover.

Now, I have said in my testimony before that I would be glad to work with the Congress, with the congressional committees if they want to put in precise mathematical definitions. But merely the withdrawal of the word "substantial" will not have any effect on the fact that this is still going to be nebulous.

I would point out, as I did in my testimony, that there are an awful lot of clauses in the Constitution and in legislation which cannot be defined mathematically, whether it is "due process of the laws,” “equal protection of the laws," or "all deliberate speed." The same thing is true here; I can't give a mathematical definition of "substantial," but I would say, as I have said before, that the vast majority of businesses and business establishments are going to know whether they are or are not covered.

No. 2: Even if you withdrew the word "substantial," you would still have exactly the same problem unless the committee and Congress wants to write in mathematical definitions.

Now, I think that there is a problem with writing in mathematical definitions, Senator, and saying that an establishment of a small size can discriminate and establishments of a larger size cannot. would be glad to make an effort to try to work that out.

But we

Senator KEFAUVER. I realize and appreciate your problem.

In connection with the Clayton Act, where "substantial" is used, and the connection with the Sherman Act-in connection with the Clayton Act, both you and the Federal Trade Commission give advisory opinions to people who might be in question whether they are going ot violate the law or not.

You do the same thing in connection with "unreasonable restraint of trade" in section 1 of the Sherman Act. Would it be the intention of the Department of Justice to put out rules or regulations or advice as to what might be substantial or might not be substantial?

Attorney General KENNEDY. Well I expect that it is going to be clear from testimony before congressional hearings and it is going to be clear from the discussion on the floor of the Senate and the House of Representatives, and it is going to be clear, I would think, from your report.

We hadn't planned to issue rules or regulations. I think we should keep in mind that there is no penalty involved in this, Senator. First, a particular establishment would have to make a determination or decision that it wanted to discriminate. The worst thing that ultimately happens, is now anyone is sent to jail. There is no monetary fine, as there is, I believe, in 30 out of the 32 States that already have this kind of bill. All that happens is that the establishment has to stop discriminating. That is the penalty.

Also, as I say, you have had other legislation that has been passed under the commerce clause, which has not been defined mathematically the Fair Labor Standards Act, for instance. Ultimately it went through the courts and there were some definitions by the Supreme Court and other courts as to what was or was not covered.

As I say, the vast majority, 99 percent of the business establishments, would know whether they were or were not covered. If Congress decides they want to be more precise, we could write it into the report, work it out on the floor or put it into the bill.

We would be glad to work with Congress or Members of Congress on that matter, or congressional committees.

Senator KEFAUVER. Mr. Attorney General, I don't want to take up too much of your time, but I wanted to get your thinking about the words on page 16, lines 6 and 7, of S. 1731. Apparently this would cover a person-page 16, lines 6 and 7, this is—

Whenever any person has engaged

We understand what that means. That is the language, I think, of most of the other commerce statutes. But the part that seems to be new, I wanted to see what you thought it meant―

or there is reasonable ground to believe that any person is about to engage in any act or practice prohibited by section 203.

203 has to do with the commerce provision. That is a new type of language, I believe.

Attorney General KENNEDY. It is language taken from the 1957 Civil Rights Act, Senator. It is incorporating language from there. Senator KEFAUVER. And applying that to the public facilities? Attorney General KENNEDY. The public accommodations, yes; that is the basis of it.

Senator KEFAUVER. But that language does not appear, I believe, in the Clayton Act or the National Labor Relations Act, or the Fair Labor Standards Act, does it?

Attorney General KENNEDY. I do not believe it does. I think it is to cover those.

Senator KEFAUVER. Well, that does present a problem. I should think a person may feel that he is about to prevent somebody from getting an accommodation.

Attorney General KENNEDY. I think it would be quite clear.

Senator KEFAUVER. As I get it from the bill, the matter of contempt would be determined by the district judge, is that correct? Attorney General KENNEDY. That is correct.

Senator KEFAUVER. When the 1957 voting rights bill was up, I voted for the voting rights bill, but I felt very strongly that the matter of contempt should be tried by a jury and offered an amendment; that is, the person proceeded against should have the right of a jury trial-and offered an amendment to that effect. I would like to give you the amendment I offered and let you consider it, or if you want to express an opinion now as to whether in a contempt proceeding against a person violating the public accommodations section, he should have a right to trial by jury.

Attorney General KENNEDY. Well, Senator, we would accept the same provisions of the 1957 act, which I think grants a trial by jury if there is a fine of more than $300 or a prison sentence, or sentence of 45 days.

We would accept the same language that is found in the 1957 act, which was accepted by Congress, passed by Congress.

Senator KEFAUVER. I would like later to submit to you the amendment that I offered.

Attorney General KENNEDY. Thank you, Senator.

Senator KEFAUVER. Thank you, Mr. Chairman.

Did you understand that-it was my thinking that this right of a jury trial ought to be applied to the public accommodations part of the bill?

Is that clear?

Attorney General KENNEDY. Yes; as to contempt.. If there is any contempt, and the individual is tried for contempt, we apply the provisions dealing with jury trial in the 1957 act to this, the public accommodations part.

Senator KEFAUVER. To the public accommodations part?

Attorney General KENNEDY. Yes.

Senator KEFAUVER. Very well.

The CHAIRMAN. Senator Ervin?

Senator ERVIN. Mr. Attorney General, this country has a written constitution; does it not?

Attorney General KENNEDY. It does, Senator.

Senator ERVIN. Would you summarize in a brief way why the Founding Fathers decided to have a written constitution in this country rather than have an unwritten one like they have in England?

Attorney General KENNEDY. They wanted to insure, Senator, that the individual citizens in this country knew what their rights, privileges, and responsibilities might be, and what would be their relationship to the Government, the courts, and the Congress, and the Congress which would be established.