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 DIVISION— Resumed

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.

139 Miss. 760, affirmed.

ERROR to a judgment of the Supreme Court of Mississippi, reversing a judgment awarding the writ of mandamus. The writ was applied for in the interest of Martha Lum, a child of Chinese blood, born in the United States, and was directed to the trustees of a high school district and the State Superintendent of Education, commanding them to cease discriminating against her and to admit her to the privileges of the high school specified, which was assigned to white children exclusively.

Messrs. J. N. Flowers, Earl Brewer, and Edward C. Brewer for plaintiff in

error.

The white, or Caucasian, race, which makes the laws and construes and enforces them, thinks that in order to protect itself against the infusion of the blood of other races its children must be kept in schools from which other races are excluded. The classification is made for the exclusive benefit of the lawmaking race. The basic assumption is that if the children of two races associate daily in the school room the two races will at last intermix; that the purity of each is jeopardized by the mingling of the children in the school room; that such association among children means social intercourse and social equality. This danger, the white race, by its laws, seeks to divert from itself. It levies the taxes on all alike to support a public school system, but in the organization of the system it creates its own exclusive schools for its children, and other schools for the children of all other races to attend together.

If there is danger in the association, it is a danger from which one race is entitled to protection just the same as another. The white race may not legally expose the yellow race to a danger that the dominant race recognizes and, by the same laws, guards itself against. The white race creates for itself a privilege that it denies to other races; exposes the children of other races to risks and dangers to which it would not expose its own children. This is discrimination. Lehew v. Brummell, 103 Mo. 549; Strauder v. West Virginia, 100 U.S. 303.

Color may reasonably be used as a basis for classification only in so far as it indicates a particular race. Race may reasonably be used as a basis. "Colored" describes only one race, and that is the negro. State v. Treadway, 126 La. 52; Lehew v. Brummell, supra; Plessy v. Ferguson, 163 U.S. 537; Berea College v. Kentucky, 133 Ky. 209; West Chester R.R. v. Miles, 55 Pa. St. 209; Tucker v. Blease, 97 S.C. 303.

Messrs. Rush H. Knox, Attorney General of Mississippi, and E. C. Sharp for defendants in error.

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

This was petition for mandamus filed in the state Circuit Court of Mississippi for the First Judicial District of Bolivar County.

Gong Lum is a resident of Mississippi, resides in the Rosedale Consolidated High School District, and is the father of Martha Lum. He is engaged in the mercantile business. Neither he nor she was connected with the consular service or any other service of the government of China, or any other government, at the time of her birth. She was nine years old when the petition was filed, having been born January 21, 1915, and she sued by her next friend, Chew How, who is a native born citizen of the United States and the State of Mississippi. The petition alleged that she was of good moral character and between the ages of five and twenty-one years, and that, as she was such a citizen and an educable child, it became her father's duty under the law to send her to school; that she desired to attend the Rosedale Consolidated High School; that at the opening of the school she appeared as a pupil, but at the noon recess she was notified by the superintendent that she would not be allowed to return to the school; that an order had been issued by the Board of Trustees, who are made defendants, excluding her from attending the school solely on the ground that she was of Chinese descent and not a member of the white or Caucasian race, and that their order had been made in pursuance to instructions from the State Superintendent of Education of Mississippi, who is also made a defendant.

The petitioners further show that there is no school maintained in the District for the education of children of Chinese descent, and none established in Bolivar County where she could attend.

The Constitution of Mississippi requires that there shall be a county common school fund, made up of poll taxes from the various counties, to be retained in the counties where the same is collected, and a state common school fund to be taken from the general fund in the state treasury, which together shall be sufficient to maintain a common school for a term of four months in each scho