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Senator Ervin. Yes. I am not asking you, however, what ought to be done to an Attorney General. What we are really dealing with is what Congress ought to do in enacting a law. For all practical purposes, this bill would make the authority of the Attorney General to bring school desegregation suits a matter to be determined by the caprice or the whim or to put it in gentler form, the good intentions of the Attorney General, would it not?

Attorney General KENNEDY. As I say, Senator, I have that authority and we are a government of laws. But also, obviously, those individuals who are public officials are going to have a great deal of authority in making decisions. I make decisions every day as to where we are going to bring criminal cases, where we are going to call grand juries, what cases we are going to move into in the antitrust field. I make decisions every day on the voting cases, where we will bring cases, where we will not bring cases. I think that is the major responsibility of a man who is the Attorney General of the United States. So this proposal would merely continue that kind of authority.

We felt there were areas that might be appropriate for action sooner than others, because certain areas are more prepared to accept desegregation of school districts than others. So that that kind of discretion, left in the hands of the Department of Justice, whether it be Republican or Democrat, might be very helpful.

I have talked to past Attorneys General and they feel that it would not be helpful to move automatically into every school district, without examining what the facts are in a particular area. We come back, Senator, to whether this kind of legislation is needed. The fact is that the Brown decision was made back in 1954. It is now 9 years since then. Only one-half of 1 percent of the children in some areas are attending desegregated schools. It has been a very, very

Under the Memphis Park Desegregation case just a few months ago, in which Mr. Justice Goldberg wrote the opinion, attendance at desegregated schools is not some future right. It is a right to be enjoyed by children living at the present time who are going to school. Something obviously needs to be done to speed up the process of desegregation, so we are recommending this legislation which will assist us in trying to deal with this very difficult problem and to enforce the law of

the land. As to the advisability of giving this kind of authority to the Department of Justice or to the Attorney General of the United Statesto be quite frank about it, Senator, the Attorney General already has authority which far exceeds the authority that would be given to him by this particular bill.

Senator Ervin. Well, then, I take it that you would agree with me when I say that these provisions of title III authorizing the Attorney General to bring or refuse to bring school desegregation suits vest in the Attorney General power to use the statute or to refuse to use it for any reason which might appeal to the Attorney General.

Attorney General KENNEDY. Only under the standards that have been established by the bill and his opinion as to what would further the orderly desegregation of the schools or what would be in the best interests of the United States. He has this authority at the present time in other fields.

slow pace.

Senator ERVIN. Let's not expand this field.

Attorney General KENNEDY. But, Senator, the fact is we already have this kind of authority.

Senator ERVIN. I recognize there are a number of statutes which undertake to vest in the Attorney General the power to sue or refrain from suing in behalf of the United States. Most of these statutes are concerned with the rights possessed by the United States itself in its sovereign capacity. This bill, however, is supposed to deal with the rights of individuals and not with the rights possessed by the United States in its capacity as a sovereign. An individual who has a personal cause of action undoubtedly has the power either to bring a suit to enforce his cause of action or to refrain from bringing a suit. I agree that the U.S. Government should likewise have the right to bring a suit or to refrain from bringing a suit in respect to any right belonging to the United States in its sovereign capacity. I would contest, however, the proposition that the Attorney General has the discretionary power to bring a criminal prosecution against one man and to refuse to bring a criminal prosecution against another man who commits the same crime.

But my question is this: Out of the more than 180 million people in the United States, the only person who can make any decision as to whether this statute is to be used or not used in any particular instance or instances would be the man who happens to be the temporary occupant of the office of Attorney General of the United States; is that not so!

Attorney General KENNEDY. That is correct, but let me say that I have that same authority, out of 180 million people, at the present time. The decision as to whether a grand jury will be called, whether the evidence that we have available against a particular individual will determine whether he will be indicted-a very major responsibility—that is all in the hands of the Attorney General. Whether we will bring an antitrust case against a particular corporation is in the hands of the Attorney General. Decisions as to actions under Taft-Hartley, Landrum-Griffin—all that responsibility rests in the hands of the Attorney General.

Senator ERVIN. I do not think the authority of the Attorney General is as broad as you suggest. You spoke of grand juries. I do not think the Attorney General of the United States has the discretionary power under the law to indict and prosecute one man for a criminal offense and refuse to indict and prosecute another man for committing exactly the same offense.

I think that would be malfeasance in office. Attorney General KENNEDY. I think so too. I think the decisions in the school cases must be based on the best interests of the United States. Anything else would be malfeasance in office, as I have said, and would mean that the Attorney General should be impeached.

Senator Ervin. I am making no personal application-
Attorney General KENNEDY. Thank you, Senator.

Senator ERVIN. But can we not conceive that an attorney general who is willing to debase his office to do so could use this discretionary power for political purposes by bringing a suit in one area where that would be advantageous and by failing to bring a suit in another area where it would be otherwise?

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Attorney General KENNEDY. Yes; I believe that is true, but may I just add, any Attorney General could already do that under statutes that are already on the books. He could present cases to grand juries against those he does not like, he could bring antitrust cases against companies and corporations which do not support his party politically. He already has very wide authority and if he abuses the authority, he can cause great harm to individuals, companies, and to the United States.

Senator Ervin. And I believe charges have been made to the effect that the Attorney General during the Harding administration did precisely that; is that not right?

Attorney General KENNEDY. That is right.

Senator Ervin. In my judgment, the best test of the wisdom of enacting a legislative proposal into law is not what a good man can do with it, but on the contrary, what a bad man could do with it. Consequently, I do not believe that Congress should create any discretionary legal powers to be used or not used according to the caprice or the whim or the good intentions or the bad intentions of either a good man or a bad man who may happen to be the temporary occupant of a public office.

I am very much disturbed by the provisions of this bill which begin with section 301 on page 18 and end with section 306 on page 23. These are the sections which vest powers in the Federal Commissioner of Education. If I have counted correctly, these sections make eight different references to racially imbalanced schools or to the problems of racially imbalanced schools.

Is it your position that the powers conferred upon the Attorney General to bring school desegregation cases include the power to bring school desegregation cases to achieve desegregation in what may be called racially imbalanced schools?

Attorney General KENNEDY. No; I do not think we have that authority.

Senator Ervin. Is there anything in these sections dealing with the Federal Commissioner of Education which defines what à racially imbalanced school is?

Attorney General KENNEDY. I do not believe so, Senator.

Senator Ervin. I could not find anywhere in this bill any definition of what constitutes a racially imbalanced school. Does not this bill leave the definition of the meaning of this term as well as what should be done with reference to racially imbalanced schools to the imagination of the Federal Commissioner of Education uncontrolled by any law?

Attorney General KENNEDY. Well, I think in general the people of a community know whether they have a problem of this kind or not. Under the provisions of the bill, if they feel that they have a problem concerning racially imbalanced schools on which they need some help, they can request it. The Commissioner acts only when he receives a request from a particular school district.

Senator, I think that over the period of the last 8 or 9 years, there has been a good deal of attention focused on the South and the segregation of the public schools in the South, without looking particularly at the North and the fact that de facto segregation exists there.

I think in the last 2 years people in the North have started examining what their problems are and are realizing the fact that there is de facto segregation in some school districts in some of our major northern communities.

What should be done about it—whether steps should be taken to move pupils from one school to another, for example, is a question of real concern to many school districts and communities.

This bill is an effort, therefore, to focus attention on that problem, to try to coordinate the best knowledge and information and give aid and assistance to those school districts which are trying to solve a major difficulty:

I have read in the last week, in the northern metropolitan papers, that there is great concern in these areas about racial imbalance in schools and what, if anything, should be done about it. This bill is an effort to try to take some action on a coordinated basis to deal with that problem, if there is a request from a particular school district.

Senator Ervin. I noticed a newspaper comment upon the provisions of title III authorizing the Federal Commissioner of Education to make grants or loans to school boards to induce them to desegregate schools. The comment was to the effect that such grants or loans would constitute an offer by the Federal Commissioner to pay bribes to school boards for complying with the law as laid down in the school desegregation case.

Attorney General KENNEDY. What paper was that?

Senator ERVIN. The Greensboro Daily News of Greensboro, N.C., had a comment of this character in an editorial of June 21, 1963. It said: “Bribes for obeying the law strike us as the ultimate debasement of free government."

Attorney General KENNEDY. I do not know where the Greensboro News got their information.

Senator Ervin. I imagine from the bill. The bill gives the Federal Commissioner of Education discretionary power to make grants and loans to school districts for the purposes specified in the bill

. Attorney General KENNEDY. Senator, first we have to go back again to recognizing that there is a problem. I think you would agree that there is a problem.

Senator Ervin. I think a very serious problem is created when the proposal is made that a child ought to be denied the right to go to his neighborhood school and placed on a bus and transported to some other community merely for the purpose of making a school in the other community a "racially balanced school.” I think that raises a very serious problem and I think it violates the 14th amendment.

Attorney General Kennedy. I understand that and I know there is an argument in that direction. But may I just say, that whether we can agree or not, there is a problem. There are many communities that feel there is a problem, whether it is New York or Detroit or Chicago or Los Angeles, or any other communities which have a high percentage of minority groups and where many of the schools do in fact serve only particular races of students. They are attempting now to try to determine whether anything needs to be done or should be done to meet that problem.

There was an exceptionally good editorial, I think, in the Washington Star about 3 weeks ago which pointed up this difficulty.

So this is an effort, Senator, to try to help. That is all it does. It is a problem and we are trying to help.

Senator Ervin. I hope that the editorial mentioned by you was the editorial which appeared in the Washington Evening Star on June 25, 1963, and which was entitled "Racial Imbalance in the Schools." I say this because the editorial writer said: "The concept of a homogenized school system, in which the community is scientifically shaken up to provide an ideal social mix, is not only unworkable it is philosophically unsound.”

Attorney General KENNEDY. I do not think that is the whole editorial.

Senator ERVIN. No; that is not the whole editorial. But so that we may have the benefit of the whole editorial, I will ask unanimous consent to insert it in the record at this point.

The CHAIRMAN. Do you want it copied in the record or made an appendix ?

Senator ERVIN. I would rather have it copied in the record, so people other than the Attorney General and myself, who did not have the benefit of reading this, can read it. I also ask that this editorial which appeared in the Greensboro Daily News, of Greensboro, N.C., on June 21, 1963, be printed in the record at this point.

(The editorials referred to follow :)

[From the Evening Star, of Washington, D.C., June 25, 1963]

RACIAL IMBALANCE IN THE SCHOOLS In the best of all possible worlds, there is no question but that the best school environment for Negro children would be one in which the students are of varied racial, cultural, economic, and religious backgrounds. It is equally clear that such an environment does not result automatically from meeting the letter of the school integration law.

This is what the education commissioner of New York State had in mind when he directed last week that integration is not enough; that racial imbalance also must be eliminated from public schools of the State. It was not a new idea, of course. A similar point, for instance, lay behind recent demonstrations by Negroes in Englewood, N.J. But the commissioner called for drastic action in New York. And for purposes of carrying out the order, he proposed to define a racially imbalanced school as one having 50 percent or more Negro pupils enrolled.

Whatever may be said for his motives, Commissioner Allen is playing an absurd numbers game. By his own admission, the cutoff ratio of 50 percent Negroes in any school is an arbitrary figure, selected because "we had to have some definition" of imbalance. The mounting reaction, moreover, demonstrates the futility of his action. The difficulty of enforcing such a policy in New York City schools, according to Calvin E. Gross, the city school superintendent, would be insuperable. He characterizes the problem of transporting students under such a plan as unbelievable. To meet Dr. Allen's definition, racial balances would have to be changed in 235 elementary schools in the city alone, Negro leaders, who generally applauded the directive, have conceded the impossibility of its total application.

The extreme example of the unworkability of this proposal is to imagine its fate in Washington. With an overall ratio of only 15 percent white pupils in public schools, the best balance Washington could possibly achieve if all the white students were distributed equally throughout the city would be 85 percent Negro in each school. The fact is, of course, that the ratio would go even higher, for such a policy would serve only to chase additional white families to the suburbs. No one would benefit.

The concept of a homogenized school system, in which the community is scientifically shaken up to provide an “ideal” social mix, is not only unworkable-it is philosophically unsound. The right position is that race should not be a factor in pupil assignment; once that principle is abandoned, an ethical Pandora's box

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