What the Attorney General, it seems to me, with all due respect, would have the Congress do in these bills would simply destroy that power of the States by having the Congress define "literate" and make that word "literate" synonymous with having a sixth-grade education. If the plan of these bills is enacted into law and a citizen of Georgia seeks to register to vote, and the registrars, following the Georgia law, request that the applicant read or write a section of the Constitution, which is a part of our literacy test, the applicant may decline to do so if he can prove that he has completed the sixth grade in an accredited school of any State of the Union, the District of Columbia, or Puerto Rico. The Attorney General made some reference to a provision in the Constitution that all men are created equal. I have never seen such a statement in the Constitution, but, if it were there, it would now be changed, or it would be changed if Congress enacted this legislation to say all sixth-grade students are equal. I think the Attorney General demonstrated the basic unconstitutionality of this plan when he expressed doubts as to its constitutionality as applied to State elections. If it is appropriate legislation under the 14th or 15th amendments, and I do not think it is, it would make no difference whether State or Federal elections were involved. On November 9, 1961, I had the privilege of making a talk to the lawyers assembled in Birmingham, Ala., for the southeastern regional meeting. I called it "The Tangled Web." It has been reprinted in the February 1962 issue of the Georgia Bar Journal. The general theme of it was: * * by Oh, what a tangled web we weave when first we practice to-deviate. Illegitimate and unconstitutional practices get their first footing silent approaches and slight deviations from legal modes of procedure. The Supreme Court of the United States said that in Boyd v. United States (116 U.S., pp. 616, 635). The first slight deviations, the silent approaches commenced about 18 years ago. Today, there are many lawyers and others who are not interested in the preservation of our system of government. Today, there are others who are so anxious for one purpose or another to impose their will upon the States of the South that they care not about the effects of evasion or ignoring of the Constitution upon the American system of government. History says that when Admiral Farragut sailed into Mobile Bay he said, "Go ahead, torpedoes be damned." That expresses their attitude toward those parts of the Constitution which displease them, or which block their path and ambitions for power. Mr. Justice Douglas has recently warned of this trend, although he thought those pursuing it were men of good will. Recently, on June 20, 1960, he said: We live and work under a Constitution. The temptation of many men of good will is to cut corners, take short cuts, and reach the desired end regardless of means (Hannah v. Larche, 363 U.S., at p. 494). Despite Justice Douglas' warning, this is exactly what these bills seek to do. The provision in section 2 of S. 2750 that the denial to any person otherwise qualified by law of the right to vote on account of his performance in any examination, whether for literacy or otherwise, if such other person has not been adjudged incompetent and has completed the sixth primary grade of any public school or accredited private school in any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico, is one of these shortcuts. S. 2750 was introduced January 25, 1962, and seems, in that respect, to be more pointed in its aims than S. 480 introduced the year before. Section 2 of S. 480 does not mention the Commonwealth of Puerto Rico. Under S. 2750, so far as literacy qualifications are concerned, a person may not be deprived of his right to vote in New York, or any other State, if he has completed the sixth primary grade of a public school in any part of Puerto Rico. It would seem that S. 2750, particularly, will affect States of the North far more than it does the States of the South, for we down home, we do not have many prospective voters who completed the sixth primary grade of a school in Puerto Rico. Both bills, though, do affect all the States of the Union for they seek to establish a government of the ignorant, by the ignorant, and for the ignorant. A few days ago, in discussing my proposed trip to Washington at Senator Ervin's invitation with one of my partners, he asked me if I had ever heard of the phrase "social promotion." I do not know whether that has entered into the discussions here or not. But, to be on the safe side, I asked our superintendent of schools in Macon, Mr, Julius Gholson, superintendent of the board of public education, Bibb County, to tell me something about social promotions, and he wrote me this: Reference is made to our recent telephone conversation. This is to advise that it is a common practice with many school systems to make "social promotions." I feel quite certain that from a nationwide viewpoint-hundreds of thousands of pupils are affected by this procedure. I am enclosing a definition of "social promotion" which was prepared by Mrs. Fielder B. Goodman, director of primary curriculum in the Bibb school system, and one of our finest professional people. I will put that letter into the record, if I may. (The letter referred to is as follows:) BOARD OF PUBLIC EDUCATION, Macon, Ga., April 6, 1962. Mr. CHARLES J. BLOCH, Attorney, 710 Walnut Street, Macon, Ga. DEAR MR. BLOCH: Reference is made to our recent telephone conversation. This is to advise that it is a common practice with many school systems to make "social promotions." I feel quite certain that, from a nationwide viewpoint, hundreds of thousands of pupils are affected by this procedure. I am enclosing a definition of "social promotion" which was prepared by Mrs. Fielder B. Goodman, director of primary curriculum in the Bibb school system, and one of our finest professional people. If I can be of further assistance, don't hesitate to call upon me. Enclosure. JULIUS GHOLSON, Superintendent. SUPERVISORS OF INSTRUCTION, BIBB COUNTY SCHOOLS, In compliance with the compulsory education laws of Georgia the public schools are required to enroll all children between the ages of 6 and 16 years. Some of these children have intelligence quotients of from 30 to 60. They are unteachable; indeed, they are scarcely trainable. It is a rather general policy to retain these pupils in each of the primary grades for a period of 2 years. At this time they are approximately 12 years old. They are then advanced, yearly, to the next grade. This is done in order that the children may be associated with their own age group. The social, physical, and emotional homogeneity sometimes precludes the behavior problem that often develops in the wide-range age groups. Let it be understood that this group of children cannot read or write beyond the level of a first-grade pupil, often not as well as can a first-grade pupil. This procedure is known as social promotion. Mrs. FIELDER GOODMAN, Director of Primary Curriculum. Senator ERVIN. As a matter of fact, I made inquiries concerning that very matter, and most States have compulsory school laws which require persons to attend school up to the time of 14 or over, and some of them do not learn, and so the child keeps growing physically but not mentally, and they promote him socially because they do not want a 52-foot or 6-foot student in the first grade. And, yet, these bills would deny the State the right to refuse registration to one of these socially promoted to the sixth grade, even though he never learned anything in school and could not read or write at all. Mr. BLOCH. That is exactly what Mrs. Goodman says in the letter that I will also put in the record, if I may, that— In compliance with the compulsory education laws of Georgia the public schools are required to enroll all children between the ages of 6 and 16 years. Some of these children have intelligence quotients of from 30 to 60. They are unteachable; indeed, they are scarcely trainable. It is a rather general policy to retain these pupils in each of the primary grades for a period of 2 years. At this time they are approximately 12 years old. They are then advanced, yearly, to the next grade. This is done in order that the children may be associated with their own age group. The social, physical, and emotional homogeneity sometimes precludes the behavior problem that often develops in the wide-range age groups. Let it be understood that this group of children cannot read or write beyond the level of a first-grade pupil, often not as well as can a first-grade pupil. This procedure is known as social promotion. Now, whether it exists just in Bibb County, Ga., or in the State of Georgia, or whether it is general in the other 49 States of the Union, certainly this committee can develop far better than I can, but it demonstrates just what the level of sixth-grade student means. It does not mean anything. Senator ERVIN. As a matter of fact, as I understand it, the purpose of the first grade in school is to teach people to read and write very simple things. But if Congress has the power to substitute an artificial standard of inserting completion school grades in lieu of real literacy tests, what would there be to prevent the Congress from saying anybody who has completed the first grade shall be allowed to vote and shall not be subjected to any test to determine whether he can actually read and write as children in the first grade are supposed to learn to read and write? If the constitutionality of this provision about a sixth-grader can be sustained, why could not the constitutionality of a similar requirement as far as a first-grade education is concerned be sustained? Mr. BLOCH. They could; and anticipating myself a little bit, if they can do it with reference to schools, then why can they not do it with reference to juries? Under your system, the system of all the gentlemen of this committee, I suppose in the various States and certainly in Georgia, our trial juries are composed of those people made up from a list of the intelligent citizens of the county. Well, now, if Congress can pass this legislation with respect to schools, then with respect to juries and grand juries, which are made up from a list that are denominated the most intelligent citizens of the county, if Congress can do what is proposed here with reference to schools, then they can say: Now, with respect to jurors, Mr. State, you cannot have any definition of "intelligence" for your jurors except that above a sixth-grade education. We will let you have for your grand jurors, we will let them have an eighth-grade education, and that is the sum and substance of the measurement. In the cutting of corners, the taking of short cuts, the bills detour around a case decided by the very Justice who sounded the warning in Hannah v. Larche. That case, of course, is Lassiter v. Northampton County Board of Elections, 360 U.S. 45, decided by the Supreme Court of the United States just 3 years ago. I recognize that it has been cited to you already in these hearings. I have heard it referred to several times this morning and, doubtless, we will continue to hear about it as these debates go along. But it is another one of those landmarks of the law which must be overturned if the proponents and advocates of these bills are to reach their desired end. It is a declaration of the "law of the land" made by a unanimous Court. And we are told that the law of the land should no be ignored or defied. The declaration of the law of the land made by Justice Douglas and Chief Justice Warren and Justices Black, Frankfurter, Clark, Harlan, Brennan, Whittaker, and Stewart in the Lassiter case is based on legal precedents, too-legal precedents which have not yet been disturbed by any modern psychological authorities. It is a declaration, too, written by a Justice who certainly cannot be considered as one of the strongest advocates of the freedom of the States, under the 9th and 10th amendments, to manage their own internal affairs. Today, the law of the land as declared for scores of years, and as applied by the unanimous Court in the Lassiter case, is (1) The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, absent, of course, the discrimination which the Constitution condemns. Pope v. Williams, 193 U.S. 621, 633. Mason v. Missouri, 179 U.S. 328, 335. (2) While the right of suffrage is established and guaranteed by the Constitution (Ex parte Yarbrough, 110 U.S. 651, 663-665) it is subject to State standards which are not discriminatory and which do not contravene any restriction that Congress acting pursuant to its constitutional powers, has imposed. (3) Among those State standards which a State may take into consideration in determining the qualifications of voters are: (a) Residence requirements, age, previous criminal record (Davis v. Beeson, 133 U.S. 333, 345-347). (b) The ability to read and write, and other literacy tests (It was said last century in Massachusetts-and I believe this is the case to which counsel called the Attorney General's attention this morningthat a literacy test was designed to insure an "independent and intelligent" exercise of the right of suffrage). (Stone v. Smith, 159 Mass. 413 414, 34 N.E. 521.) As of June 8, 1959, 19 States of the Union had some sort of literacy requirement as a prerequisite to eligibility for voting. These literacy tests are a reasonable regulation under which the right of suffrage may be exercised. Franklin v. Harper, 205 Ga. 779, 789. This Georgia case, alluded to favorably by the Supreme Court in the Lassiter case, applied the law of the land as it had been declared from a time contemporaneous with the adoption of the 14th and 15th amendments in United States v. Cruikshank, 92 U.S. 452 (1870). Georgia is not alone in having so held even prior to the Lassiter case. I submit in my written statement just a few cases from States outside the South in which this right and freedom of the State was upheld. I marked the ones which may be of particular interest to the members of this committee, because on that list are cases from Colorado, Arkansas, Massachusetts, and from New York, among others. Senator ERVIN. I think you have cited in this phase of your statement, cases from Idaho, Colorado, Illinois, Indiana, Iowa, Kansas, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Washington, and Wisconsin. Mr. BLOCH. Yes, sir. And, in addition to those, Mr. Chairman, if any member of the committee desires to pursue the study of those cases, he may find a good start in the annotation which commences at 91 A.L.R., page 349. It has got a copious note on all of the State court cases: Gillesby v. Canyon County (1910), 17 Idaho 586; People ex rel. Johnson v. Earl (1908), 42 Colorado 238; People ex rel. Grinnell v. Hoffman (1886), 116 Ill. 587; Simmons v. Byrd, 192 Indiana 274 (1922); Edmonds v. Banbury, 28 Iowa 267 (1869); State v. Butts, 31 Kansas 537 (1884): Anderson v. Baker, 23 Maryland 531 (1865); Capen v. Foster, 12 Pick. 485 (Massachusetts, 1832): Commonwealth v. Rogers, 181 Massachusetts 184 (1902); State ex rel. Pine v. Board of Education, 158 Minnesota 459 (1924); Ensworth v. Albin, 46 Missouri 450 (1870); In re Charter of Manchester, 47 New Hampshire 277 (1867): People er rel. Frost v. Wilson, 3 Hun. (New York) 437 (1875): Fitzmaurice v. Willis, 20 North Dakota 372; Jeffrey v. State, 26 Ohio C. C. |