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parks thereof which are intended for occupancy for a period of less than 30 days.

Now, there is nothing in the statutes that suggests any such distinction.

About one-fourth of the loans that have been made under the Area Redevelopment Agency have gone into the construction of public accommodations, such as hotels and motels. But the Administrator refuses to apply a nondiscrimination standard to this program, even though he has done so for residential construction.

I feel that is an inconsistency which should be dealt with while we are dealing with this problem.

I don't want to go into any detail about proposed changes. But I do believe that in order that the committee may have it in mind that I should mention one. I see no reason to limit the extension of the Commission on Civil Rights to 4 years.

The proposed Community Relations Service, which is provided for in the act, is not so limited, and neither should the Commission on Civil Rights, which has performed such an excellent service to the Nation.

In the Subcommittee on Constitutional Rights where we have been considering that matter, I offered an amendment to change the 4 years and make it a permanent agency, which was defeated by a tie vote, and it will be my intention, if we take that up separately, as I believe we should, in the full committee, to reoffer that amendment.

I also see no reason to limit the substantive provisions of the public accommodations law to the cases involving interstate commerce.

I agree with the Senator from North Carolina, it must be based on facts. And facts are given us in abundance in the reports of the Civil Rights Commission. Those findings rely on both the equal protection and the commerce provisions of the Constitution. And this, I believe, should be reflected in the substantive provisions of this law, so as to have its broadest application consistent with the Constitution and to strengthen the constitutional basis and background for the legislation.

Nor do I believe that the President needs, as is asked for in this bill, specific statutory authority to require a policy of nondiscrimination under all of the programs that are receiving Federal assistance, or that he should reserve to the discretion of the agency heads the cases in which such authority would be exercised.

In my judgment, the President already has power under the Constitution to issue an Executive order to insist that Federal funds collected from all citizens without regard to any race, color, religion, or any other considerations, must be disbursed only in support of programs which operate on a nondiscriminatory basis.

And it would be my intention to offer an amendment to prohibit the use of funds for any segregated facility.

Now, undoubtedly there are other aspects in which the bill can be improved. I intend in the near future to propose a number of specific amendments for consideration by the committee. And I will present detailed discussion of those at that time.

I shall, of course, be for the bill. I am gratified that there is real leadership back of the movement to improve the rights of all of our citizens.

The bill will have my full support.

Thank you.

Although I do think in these respects and some others it can be improved by our committee.

Senator ERVIN. Mr. Chairman, I wish to thank you and the other members of the committee for the patience with which you have heard my presentation on this subject.

(The statement submitted by Senator Hruska is as follows:)


Mr. Chairman, I want to welcome the Attorney General to this hearing, which affords the Judiciary Committee its first opportunity to study publicly the legislative proposal recently submitted to the Congress. I am confident that each of us is looking forward to the Attorney General's testimony and to a frank exchange of views on the various provisions of S. 1731 and related legislation.

With the issue of civil rights commanding the attention of the country, a full discussion of the merits of these measures is exactly what the times call for. There is a widespread recognition of certain basic inadequacies in our statute books to cope with present-day problems, but by the same token there is no consensus as to how to go about remedying existing conditions or any clearcut idea regarding the proper course of action to follow. General awareness and a growing feeling on the part of the public that “there ought to be a law". does not justify our making a blanket endorsement of any new measure which might come along for the sake of attempting to enforce the fundamental concept in our Constitution of “equal protection.”

It is not my purpose, however, to admonish my colleagues as to their duties. I do urge at these hearings and in the civil rights struggle which is taking place in every corner of our land that we not lose sight of those safeguards so essential for real progress and succumb, instead, to legislative gimmicks whose longrun effect may only serve to forestall the enjoyment of the blessings of liberty for every citizen.

Let me cite but one example of what I have in mind and why I deem these hearings to be so important. Title VI of the bill submitted and now under consideration grants a fantastic range of power to the Federal Government to strike at a grievous wrong. I do not tolerate for a moment the use of tax funds for discriminatory purposes. But I would not grant for a second the executive branch-and particularly some nameless individual nestled within it, as this title does—the unreviewable authority to withdraw financial assistance for any program by way of grant, contract, loan, insurance, guarantee, or otherwise upon his own determination that the benefits are not being applied applied equally and without discrimination.

On the cornerstone of our constitutional structure are inscribed the words that the end does not justify the means. A moment's reflection would make selfevident how misguided the good intentions of title VI are. To empower the Executive to withdraw a program involving Federal assistance upon such a single determination could inflict incalculable hardship on innocent beneficiaries who are dependent upon those funds while leaving untouched the individual perpetrating the discriminatory practice. I sincerely trust such a provision will undergo substantial revision and that each other provision of the bill will be tested by such judgment and sense of balance.

There is no reason to detain the committee or its distinguished witness any longer. Let me conclude by saying that the Senator from Nebraska shares the concern for social justice which is expressed by this legislation. I am mindful, however, of the need to carefully scrutinize the particular provisions of these bills lest we fasten upon ourselves a form of tyranny of greater proportions than has ever threatened our country.

I will study the formal statements and will follow the present testimony with keen interest in order to make certain that the language in the bills at hand or in any proposed alternative will be compatible with our constitutional principles and our personal rights. To that end I look forward, Mr. Chairman, to a productive session whereby the American dream may become an actuality for all our citizens and may be assured as well for their posterity.

The CHAIRMAN. I understand Senator Dodd is on his way down to make a statement.

We will recess until he arrives.
(Brief recess.)
The CHAIRMAN. Come to order, please.



Senator Dodd. Mr. Chairman, I don't think it is necessary for me to say how much I respect and admire Senator Ervin. Generally, I think he is a wonderful lawyer and a great Senator.

I was not able to be here yesterday or this morning, when Senator Ervin went on with his statement. But I have been informed that the Senator has stated that a license in no way signified a State action or participation in or responsibility for the operations of the licensee. And the Senator cited a long list of activities that are licensed in his own State of North Carolina. And in his own inimitable way he selected the case of a gypsy fortuneteller. And added merry-go-round operators.

And he concluded that it was ridiculous to assume that because a fortuneteller pays a license fee, that the State has any responsibility for her activities.

I say “her” because I think most of them are females. Anyway, they are out where I live.

Well, this interested me. And so when I heard about it this morning, Senator Ervin, I tried to think it out, and I thought it was important that I answer your observation.

And I wish to dispute this head on. I am willing to take up the case, the extreme case of the fortune teller. It is an extreme case, I think you will agree it is an attractive one, and a semihumorous one.

When the State issues a license to a fortuneteller, that license obviously is to operate. The fortuneteller in North Carolina cannot do business without this State license. She cannot operate, therefore, without the authority of the State of North Carolina.

Now, if the State involved, any State, or any of its subdivisions, are doing their job properly, a license signifies more than the mere payment of a tax. It should mean, and I am confident it does mean, in North Carolina or in any other State, that the person given the license meets some standard of acceptability. It should mean some protection to the patrons of the fortuneteller.

For example, that they are not dealing with an extortionist.

It should mean that the premises are being used for what the license says they are being used for, and not for gambling, for example, or for prostitution, or something of that sort.

But let us look to more pertinent examples, and by more pertinent examples I don't mean to run down the example that you cited—but I think there are others, you will agree, that are more pertinent, such as restaurants, stores, motels, motion picture theaters, and business of this kind.

Now, here it seems to me involvement of a State or any of its subdivisions is far more pronounced. Here the business which receives a permit is subject to rules and regulations regarding, for example, sanitation, public health, fire regulations, and other forms of control through which the State recognizes its responsibility for protecting the rights of the public in connection with that business. This must be so.

Thus, I say the licenses and permits through which a business is allowed to operate do represent a degree of participation, sanction, and responsibility by the State for the operation of that business.

I think it is hard to deny this. I cannot imagine anyone saying this is not so.

Now, my view is that this authority resides in all the people of that State.

In the case of those businesses which practice racial discrimination, we have the strange situation of a business which has received a grant from the State to offer goods and services for sale, a grant received from all of the people of that State, a large percentage of whom may be Negroes, and refusing to deal with the very people in whose name it is authorized to open for business—refusing to deal—the business licensed refusing to deal with the very people in whose name it is authorized to open for business.

So it is my view that the contention of Senator Cooper, and 30 other cosponsors of S. 1519—and I, of course, with Senator Cooper, introduced that bill—it is our view that a business which is authorized, controlled, and regulated by the State in this manner should not be allowed to pursue practices in violation of the Constitution of the United States, which is the law, not only of the Nation but of the States and localities.

And I think it is ironic that witnesses before the various congressional committees, in opposition to the 14th amendment approach, should make the plea that private businesses are strictly private property which have a right to operate as they see fit.

I point out that there are at least eight States in this country, all located—well, I say all located in the region from which this kind of argument originates—that require segregation in public accommodations by law. There are eight such States.

Let's say they say, "If you are to do business in this State, you must segregate." And this is a statute.

Now, I say these laws are clearly unconstitutional. And I expect they are doomed as soon as the Supreme Court can get to them.

But I think the important point is that these States currently are controlling the operations of private businesses to such a minute degree as to require that dishes used by Negroes in a restaurant must be washed by separate facilities from those used by white people.

Now, I think that the involvement of the State in segregation of public accommodations is inescapable, whether that involvement be direct, through laws enjoining segregation, or whether it be indirect, as in the case of discrimination in businesses which can operate only by permit in the State, and which are controlled and regulated by the State and its subdivisions.

I wasn't here to hear my good friend make his statement; but this is my answer to the argument put forth by the distinguished Senator from North Carolina, so far as I have been able to hurriedly get it together.

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I have, as well, Mr. Chairman, a statement which I had prepared, which I would like to have included in the record at this point, on several points, particularly having to do with public accommodations.

(The statement referred to follows:)



Mr. Chairman, members of the committee, this committee has before it S. 1732, the administration's proposed public accommodations bill, of which I am a cosponsor. Several weeks before this proposal was introduced, Senator Cooper and I submitted a bill, S. 1501, to eliminate discrimination in public accommodations, based on the provisions of the 14th amendment, which is also before the committee. My remarks are addressed to both bills.

I strongly support legislation to prohibit discrimination in places of business that hold out goods and services for sale to the general public. I believe that the argument for this legislation cannot be overstated.

Racial discrimination, institutionalized intolerance, deliberate public humiliation, and inconvenience, is, as the Attorney General has said before the Com

Committee, “morally wrong, legally insupportable, and socially destructive."

Every American citizen is entitled to equal rights and to the full protection of the law in the exercise of these rights. I do not believe that there is any question as to the power of Congress to act in this area, and I am convinced of the necessity for such action.

The opponents of public accommodations legislation have cast a shadow across it far out of proportion to the strength of their position. They have relied largely on what seems to me a rather spurious argument based on the civil rights cases of 1883. They claim that the Court at this time ruled, and the decision has never been overturned, that equal access to public accommodations was not a right guaranteed by the 14th amendment.

The Court did not state this at all. It found only that in the case of the 1875 civil rights laws the power of Congress did not extend to individual acts of discrimination, because State action, bringing it within the scope of the provisions of the 14th amendment, was not shown.

These cases, therefore, decided nothing on the question of whether or not all citizens have a right to equal access to public accommodations, which seems to me to be the more pertinent concern here.

It is the contention of Senator Cooper and I and 30 other Senators who joined us as cosponsors of S. 1591, that when a State grants a permit to operate, when a State or a subdivision of a State certifies, through issuing a license, that a business meets the requirements of State law and is observing the regulations and requirements of local law, we contend that this brings the State sufficiently into the act of discrimination to place such action under the 14th amendment. This question, as such, is not covered by the Supreme Court decision of 1883.

The argument that a public accommodations bill will be an infringement on private property and individual rights is not valid in my judgment. A store, a movie house, a motel, a restaurant, or any other such facility, is not private property, in the same sense that a man's home is. By opening a facility for public business, the owner necessarily abandons much of his right to privacy; he subjects his property to all kinds of regulations and inspections; he operates under a public license; his property assumes a public character, a public purpose, and a public function. Because of this, the owner and the employees of such establishments are not unconditionally free to do what they wish. They have certain responsibilities to meet, in the exercise of the duties connected with their business. Their actions are limited, both by the Constitution and by appropriate Federal, State, and local statutes.

The contention that a man who owns a movie theater has the same right to determine who shall or shall not enter as he does in the case of his own home is absolute nonsense. It is important to note here, I think, that 32 States have prohibited, by legislative action, executive order, or other means, discrimination in public facilities, and that these various measures have not been declared unconstitutional.

Another argument has been made in opposition to these public accommodations bills, an irresponsible argument.

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