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It was pointed out that the U.S. Office of Education had not approved the Court's plan and, therefore, refused financial assistance for any of these children. In other words, the application of the guidelines by the U.S. Office of Education, which were outside the scope and intent of the act itself, in my opinion, prevented the children of this county from participating in programs to improve instruction provided with Federal funds.

The system was entitled to approximately $74,000 this year just closed which would have been used in a much-needed remedial instructional program, a Headstart program, and upgrading the quality of the instruction for more than 500 Negro children who chose to remain in the system and about 241 children who chose to transfer out of the system. It seems to me this was an act of discrimination on the part of the U.S. Office of Education against the very children who were in most need of the assistance.

At the present time, we have in Georgia eight systems—this week we had two additional systems to qualify so we have only eight-out of the 196 who have elected to not sign the compliance form 441-B. It is our understanding, and I have this understanding in the form of a telegram from the Commissioner, that these systems are immediately placed in the noncompliance category and are not eligible for further Federal assistance under new programs. In other words, the systems are deemed to be guilty of discrimination, even though no complaint of discrimination has been registered and without an investigation.

Senator ERVIN. And I might add, Mr. Nix, as I construe it, they have been not only denied Federal assistance for failure to comply with the announced guidelines and without any evidence of discrimination, but they have been denied Federal assistance in violation of the act which merely authorizes cutoff or denial of funds where there has been discrimination which the courts have defined to be merely the exclusion of a child from a particular school on account of his race.

Mr. Nix. Yes, sir, Mr. Chairman, and I think in addition to this, that the cutoff of funds is supposed according to the law to take place after a hearing and not before a hearing.

Senator Ervin. That is correct. The law you previously quoted expressly provides that.

Mr. Nix. This is one of the reasons or the reason that we support vigorously section 606(A) of your amendment to the proposed Civil Rights Act of 1966.

It is our position that a local school system should not be prohibited from participating in Federal assistance programs until the statutory provisions required by the 1964 Civil Rights Act have been met.

I might digress here a moment, Senator, to inject that system superintendents and boards of education have a very difficult time in staffing for programs, and with the uncertainty of whether or not they receive funds, they cannot contract for people for programs that will be initiated in July or in September, unless they have some assurance that funds will be forthcoming.

With this procedure that the U.S. Office is now following, we have no assurance that funds will continue, because most any day a telephone call, or a letter, or a telegram from the Commissioner's Office could direct me, as State superintendent of schools, to cut off funds to any system in our State, and I would have no authority other than to comply with this directive.

This, then, puts the local superintendent and the system board of education in a most embarrassing situation with the people they have employed. It also interferes with the education of children, which we are trying to do in this business of public education.

Senator Ervin. I would like to state at this point that, when title VI was before the Senate, I did the best I could to bring some sanity to its provisions, and some regard for due process of law. Although I was opposed to the bill, I tried to make the bill as workable and as fair and as just as possible. I introduced a number of amendments to accomplish that purpose. Unfortunately, when there is a bill up in the Congress that is labeled a civil rights bill, it makes no difference what its provisions are. You can reason as much as you will, but the majority—I hate to say it about the body I belong to—the majority of the Members come over there and vote for the bill just like it is, without even hearing your argument, without even giving it consideration.

I introduced an amendment to this provision. I have never believed in letting executive agencies exercise what are in effect judicial powers, so I offered an amendment to eliminate the power of Federal agencies to cut off funds, and to substitute due process of law in the Federal courts for agency action. My amendment provided that no funds should be cut off by the Federal agencies, but whenever the Federal agencies had reasonable cause to believe that discrimination was being practiced, then they would report their evidence to the Attorney General, and the Attorney General could then investigate the case, and if he found out there was probable cause for so doing could bring a suit to enjoin further discrimination.

I expressly provided that, instead of having to go to the drastic course of cutting off food and milk programs for helpless little children, the court could make a decree which would prevent further discrimination. That would have accorded with the ancient American concept of a hearing which even the statute requires, before one is condemned, and would have afforded an opportunity to adjust the controversy without denying the schools adequate funds insofar as there were any funds given by the Federal Government, or denying lunch programs or milk programs.

programs. But unfortunately that amendment was voted down, by men who were making large protestations about their great love for due process of law.

Mr. Nix, Mr. Chairman, I would like to point out here that this is getting to be more difficult as time goes along rather than getting better for us to administer programs. I would like to point out & specific example.

Under the new Elementary and Secondary Act, title 3 section, we were to submit new ideas and innovative projects for educational purposes, improving the education of children. We started last October with a project covering our Ninth Congressional District to cross county lines with instructional services, in order that the children in small systems, as well as large systems, would have the benefit of the same quality of education, regardless of the size of the system, the children, race or anything else.

The U.S. Office of Education officials liked the idea. We have refined this, and on May 12 of this year I sent two members of the staff and one of the system superintendents to converse with them. They, in all fairness, indicated the project was approved and that we could start on June 1.

65-506-66-pt. 1-25

On Monday of this week we received notice from one of the officials of the U.S. Office of Education that it was held up in the civil rights unit of the U.S. Office of Education, the equal educational opportunities unit, even though it is an approvable project.

Now, in my opinion, as I told the Commissioner by telephone, he did not have the right to disapprove that project, because it was approvable. He did have the right to hold off the money if we were not following the civil rights law. We had written in the project that any system in the Ninth Congressional District that did not comply with the Civil Rights Act or the guidelines would not be a participant. Yet they are still holding this project, even though there has been no hearing, there has been no complaint filed or anything else. The fiscal year is almost gone, and people we would like to employ are no longer available. We had interviews set up for the first of June. So it is really getting worse rather than better, Senator.

It has been our experience in Georgia that system superintendents and boards of education, are willing to comply with section 601 of title VI of the Civil Rights Act of 1964 which provides

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, being denied the benefits of, or being subjected to discrimination of any program or activity receiving federal financial assistance but the same superintendents and boards of education are reluctant and are finding it almost impossible to comply with the racial transfer percentage requirements required by paragraph 181.54 of the “Revised Statement of Policies for School Desegregation Plans Under Title VI of the Civil Rights Act of 1964,” issued by the U.S. Department of Health, Education, and Welfare, in March of this year.

They are even more convinced and concerned that the requirements of paragraph 181.13, with reference to faculty and staff desegregation, are completely outside the scope and intent of section 601 of title VI of the Civil Rights Act. Attitudes and feelings are more intense in our State, and I believe I can say, Senator, that those responsible individuals with whom I have talked throughout the country feel as I do, that the encroachment of the Federal Government into State governments is greater at this particular time than at any time during my lifetime. I think many people, responsible people, are now looking at State officials, governments, and constitutional officers, as being not much more than clerical workers of the Federal Government. This is a real danger to our form of government if we are going to maintain a strong Federal Government and a strong State government.

Attitudes and feelings are more intense when school officials read section 604, which states

Nothing contained in this Title shall be construed to authorize action under this Title by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization, except where a primary objective of the federal financial assistance is to provide employment.

Our people feel the intent of the act is the same as was stated by the assistant majority leader at the time the act was passed. To quote the words of Vice President Humphrey:

While the Constitution prohibits segregation, it does not require integration. The busing of children to achieve racial balance would be an act to effect the integration of schools. In fact, if the bill were to compel it, it would be a violation, because it would be handling the matter on the basis of race.

I believe the opinion of the majority of system superintendents and boards of education in Georgia is that the desegregation guidelines recently issued by the U.S. Office of Education are outside the scope and intent of the 1964 Civil Rights Act. In fact, the requirement for racial balance mandatory transfer provisions are in flagrant violation of the act itself.

To follow these provisions to the logical conclusions in everyday application would require, in effect, that a public utility company would be discriminating unless it insisted that a certain percentage of the minority race sit in the front of its buses or, likewise, a certain percentage of the minority race would be required to use the public golf courses and swimming pools. By the same token, they would be saying past acts of discrimination could not be effectively removed until a certain percentage of the minority groups are voting in each election.

I am sure it is obvious to this committee that acts of discrimination have existed in certain areas of our public life, but I also believe human decency and commonsense dictate that this discrimination has been removed in practical application in the above examples.

The Civil Rights Act of 1964 is now a fact. Our people are gradually moving into an acceptance of its intent. Eventually, if patience is manifested, its intent and Georgia's philosophy of public school education, which is the instruction of children, can be reconciled and effectuated.

It does seem to me, though, if the Federal Government is actually interested in the instruction of children, it could more wisely spend the available money for the instruction of children rather than Federal policemen to badger boards of education with a multiplicity of ambiguous guidelines. Using a 6.1 percentage contribution to dictate the spending of the other 93.9 percent is rather presumptuous and absurd.

Congress never intended or implied when it used the words "by any other means authorized by law" to give birth or pedigree to any Federal agency to incubate its own rules and regulations and let them travel unrestricted under this cover of authority.

It has been our experience in Georgia that the Department of Health, Education, and Welfare is using the words "cutoff of funds” under section 602, paragraph 1, and the words “deferral of funds” under paragraph 2, to extend regulations beyond the law. To the recipient of the funds, this is bureaucracy at its worst and a play on words, in addition to circumventing the intent of Congress.

It does not make any difference to the receiving system under what provisions the funds are withheld as long as the funds are not forthcoming, and the system has not had the full benefit of the protection intended by Congress.

Mr. Chairman, I respectfully request, on behalf of the 1,140,000 schoolchildren in Georgia, your careful consideration and evaluation of Federal programs involving the expenditure of funds for educational purposes. We must have your help to give back to the States authority to operate public education programs for the benefit of children.

I would like personally to thank you as chairman of this committee, and as a Senator of this great Nation for your personal efforts to help us with this particular problem.

Thank you.

Senator Ervin. Thank you, Mr. Nix. Isn't it fair to state that the people of States like Georgia and North Carolina have spent a greater portion of their earthly substance for the education of Negro children than the people of many other States in the Union, simply because they have more of such children, and have had through the years?

Mr. Nix. Not only that, Senator, but in our State we are spending over 59 percent of all State revenue for education.

Senator ERVIN. And isn't it true that States like North Carolina and Georgia embarked upon programs to give adequate education to all of their children of all races long before any such civil rights concoctions that are now presented were ever suggested?

Mr. Nix. Senator, in the early 1950's when Senator Talmadge was our Governor, we started a school building program, a $200 million program at that time, and I am firmly convinced that during the 1950's and early 1960's our Negro students were the best housed Negro students in this entire country. Their building facilities were in the poorest condition in the early 1950's, and we started at that time to develop facilities that would be good in terms of sound educational programs regardless of what color the children's skins might be.

Senator Ervin. Isn't it a fair statement to say that in States like yours and mine, the people who actually control the State governments and establish its policies are dedicated to the proposition that every child of every race should have an opportunity so far as it lies within the physical resources of those States, “to burgeon out" as the great educational Governor, Charles Aycock, said, "everything within him.”

Mr. Nix. Mr. Chairman, in my own personal opinion the greatest thing that any State of this Nation has is the minds of its youth. It doesn't particularly make any difference what color the child's skin might be. Our purpose in Georgia, and I am sure it is the same in North Carolina, and I would hope that it would be the same throughout the Nation (but I don't think it is in the minds of all individuals at this time) is that this is the greatest responsibility we have to develop the minds of children to be effective citizens in terms of productivity and successful living, to build a truly great democracy. I fear this is endangered with some of the edicts that are now being issued on the part of some of the Federal officials, and in my own carefully considered opinion, the Congress didn't intend for them to issue some of these edicts they are sending out now.

Senator Ervin. I think that your statement and the words of title VI itself show the absolute soundness of that observation. Title VI said, as you point out in your statement, that funds would not be cut off without an opportunity to be heard.

It said that desegregation of schools should not be construed to require racial balance.

İt stated in express words that there would be no authority to require the busing or the transportation of children from one point to another in order to integrate schools.

It stated that the Federal Government would have no authority over the employment of State officials, State employees, except in those rare cases where the only purpose of the program was to promote employment. In my judgment the guidelines laid down by the Office of Education of the Department of Health, Education, and Welfare

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