TITLE VI-AMENDMENT TO TITLE VII OF 1964 ACT

SEC. 601. Title VII of Public Law 88-352 (the Civil Rights Act of 1964) is amended as follows:

(a) Add a new paragraph to section 701 (a) as follows: "The term 'governmental unit' means a State or a political subdivision thereof or an agency of one or more States or political subdivisions."

(b) Amend so much of section 701(b) as appears before the word "Provided" to read as follows: "The term 'employer' means: (1) a person engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (i) the United States, a corporation wholly owned by the Government of the United States, or an Indian tribe, (ii) a bona fide membership club (other than a labor organization) which is exempt from taxation under section 501(c) of the Internal Revenue Code of 1954; (2) a governmental unit and any agent of such governmental unit;"

(c) Add the words "or governmental unit" following the word "person" wherever it appears in section 701(c).

(d) Delete the phrase "or an agency of a State or political subdivision of a State," from section 701(c).

(e) Add a comma and the following language after the word "charge" on line 9 of section 706(e): "unless the respondent is a State."

(f) Insert the words "or governmental unit" in section 707(a) following the word "persons" on lines 2 and 12 of such subsection.

(g) Insert the words "for or in the name of the United States" following the word "action" on line 6 of section 707(a).

(h) Insert the words "or governmental unit" following the word "person" on line 4 of section 709(a), on lines 1 and (5) of section 710(c) and on lines 2 and 7 of section 713(b).

TITLE VII-MISCELLANEOUS

SEC. 701. (a) The term "State" as used herein shall include the District of Columbia.

(b) The term "because of race or color" shall mean because of hostility to the race or color of any person, or because of his association with persons of a different race or color or his advocacy of equality of persons of different races or colors.

(c) The term "hearing officer" shall mean an agent or employee of the Indemnification Board or a person not otherwise associated with the Board who is designated by the Board to conduct a hearing.

(d) The term "action taken under color of law" shall include the knowing refusal or failure to act where action could or may have prevented injury.

(e) Yhe term "injury to property" shall include any financial or economic loss. (f) The term "judicial district" shall mean a division thereof where the judicial district is divided into divisions.

SEC. 702. (a) There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act, including payment of awards under title V.

(b) If any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of the Act and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.

[S. 3170, 89th Cong., 2d sess.]

A BILL To confer jurisdiction upon the district courts of the United States over certain classes of removed cases and to provide injunctive relief in certain cases, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Civil Rights Procedure Act".

FINDINGS AND PURPOSE

SEC. 2. (a) The Congress has over the last century adopted legislation declaring, protecting, and granting various civil rights to citizens. It is the sense

of Congress that some citizens seeking to avail themselves of these declared rights have been subjected to lengthy and expensive criminal prosecutions instituted to deter them from attempting to obtain their civil rights. It is further

the sense of Congress that the proper means to correct this unlawful activity is to vest appropriate jurisdiction in the district courts of the United States.

(b) It is hereby declared to be the policy of Congress and the purpose of this legislation to promote the general welfare by preventing reprisals against those who seek to end discrimination on account of race, color, religion, or national origin prohibited by the Constitution or laws of the United States.

REMOVAL OF CAUSES

SEC. 3. (a) Section 1443 of title 28 of the United States Code is amended by substituting a semicolon for the period at the end of subsection (2) and by adding at the end thereof the following new subsections:

"(3) For any exercise, or attempted exercise, of any right granted, secured, or protected by the Civil Rights Act of 1964, or of any other right granted, secured, or protected by the Constitution or laws of the United States against the denial of equal protection of the laws on account of race, color, religion, or national origin; or

"(4) For any exercise, or attempted exercise, of any right to freedom of speech or of the press or of the people to peaceably assemble secured by the Constitution or laws of the United States when committed in furtherance of any right of the nature described in subsection (3) of this section."

(b) Subsection (d) of section 1447 of title 28 of the United States Code is amended to read as follows:

"(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be appealable as a final decision under section 1291 and an order denying remand of a case removed pursuant to section 1443 shall be appealable as an injunction of proceedings in the State court under paragraph (1) of subsection (a) of section 1292."

INJUNCTION OF STATE PROCEEDINGS

SEC. 4. Section 1979 of the Revised Statutes (42 U.S.C. 1983) is amended by inserting "(a)" at the beginning of the section and by adding at the end thereof the following new subsections:

"(b) Such redress shall include the grant of an injunction to stay a proceeding in a State court where such proceeding was instituted for

"(1) any exercise, or attempted exercise, of any right granted, secured, or protected by the Civil Rights Act of 1964, or of any other right granted, secured, or protected by the Constitution or laws of the United States against the denial of equal protection of the laws on account of race, color, religion, or national origin; or

"(2) any exercise, or attempted exercise, of any right to freedom of speech or of the press or of the people to peaceably assemble secured by the Constitution or laws of the United States, when committed in furtherance of any right of the nature described in subparagraph (1) of this subsection;

and where

"(i) An issue determinative of the proceeding in favor of the party seeking the injunction has been decided in favor of his contention in a final decision in another proceeding arising out of a like factual situation;

"(ii) The statute, ordinance, administrative regulation, or other authority for the proceeding has been declared unconstitutional in a final decision in another proceeding;

"(iii) The statute, ordinance, administrative regulation, or other authority for the proceeding is, on its face, an unconstitutional abridgment of the rights to freedom of speech or of the press or of the people to peaceably assemble; or "(iv) The proceeding was instituted for the purpose of discouraging the parties or others from exercising rights of freedom of speech or of the press or of the people to peaceably assemble.

"(c) In an action seeking an injunction under subsection (b) the court shall not deny or defer relief on the ground that a defense or remedy in the State courts is available."

These hearings begin at the earliest possible date consonant with the preparations necessary for such an important investigation. As this legislation would affect the laws of all States and the lives of all citizens, the subcommittee has solicited the views of the Governors of the 50

States, seven professors of law representing a cross-section of scholarly opinion on the issues, and the chief education officer in each State to which integration guidelines of the U.S. Commissioner of Education have been applied.

The subcommittee has also invited the Attorney General to submit his views on these bills, and Mr. Katzenbach has consented to be the first witness.

Also scheduled to testify are Members of Congress and representatives of various organizations. Others, who will not be able to appear in person, have submitted statements which will be made a part of the record.

The subcommittee has endeavored to obtain the widest possible cross-section of opinion on these bills. It is anticipated that the record of these hearings will provide for the Senate a thorough source of information on all questions relevant to these bills.

And at the outset let the record be clear: There are many important questions to be resolved-questions of policy, questions of drafting, and questions of constitutionality. While addressing myself briefly to the administration's bill, it is my intention to point up a few of these problems and the testimony the subcommittee will require to resolve them.

At this point I will refrain from further reading of my statement and in the interests of conserving time I will give any member of the subcommittee who has a statement that he would like to read an opportunity to read it, and also after they have completed I will give my friend, the minority leader, who is a member of the full committee, though not of the subcommittee, opportunity to read his statement if he has one. Do you have a statement?

Senator KENNEDY of Massachusetts. I would. I would like to put it in the record at a later time, Mr. Chairman. I think we ought to proceed now with the Attorney General and I would like to add my statement at a later time to the record.

Senator ERVIN. Under these circumstances, with the indulgence of all concerned, I will proceed with my statement.

(At this point Senator Hruska entered the hearing room.)

Senator ERVIN. Jury trials: The first two titles of the bill, though not as well publicized as others, are equally as important. Although I may disagree with the propriety of Chief Justice Warren's remarks concerning pending legislation on jury reform, I do share his apprehension that these provisions deserve the most careful scrutiny before we tamper with two of the basic tenets of American Government: the right to trial by jury and the Federal system.

As those of us who serve on the Judicial Improvements Subcommittee know, any reform in the Federal judiciary usually is given a thorough analysis by the Judicial Conference of the United States, the American Law Institute, the American Bar Association, and others, as well as by the administration and by congressional committees. I have profound regret that we cannot consider these jury selection proposals in the bright light of the usual judicious consideration rather than in the heat of the arena of controversy surrounding civil rights. Nevertheless, the subcommittee will do its best to see that the provisions are given as dispassionate consideration as is possible.

TITLE I

The purpose of title I is worthwhile and there is no doubt that Congress has both the authority and the obligation to provide for an effective and uniform Federal jury system. However, the subcommittee will hear from witnesses who are concerned with the administration of justice in the courts as to whether the provisions of this title are best designed to accomplish its purpose. Congress has plenary power over the Federal judicial machinery and our question here is not whether to act, but how.

Of particular interest in this connection is a bill passed by the House and approved by the Senate Subcommittee on Improvements in Judicial Machinery. This measure, H.R. 5460, which has also been endorsed by the administration, is a partial alternative to title I. Additionally, it is the product and the subject of careful consideration by the Judicial Conference of the United States, and has the Conference's backing.

The subcommittee will be interested to know what, if anything, has happened in past weeks which prompted the Justice Department to endorse two conflicting proposals. We also intend to learn why title I has not been and should not be submitted to the close scrutiny of the Judicial Conference of the United States and the American Law Institute as the Chief Justice has suggested. In this connection, I am submitting an excellent editorial from the Washington Post of May 22, 1966, which will be placed in the record at this point. (The article referred to follows:)

[From the Washington Post, May 22, 1966]

WARREN AND THE JURY BILLS

Chief Justice Warren's comment on the bills designed to end discrimination in the selection of jurors was certainly unusual, and it may have been lacking in discretion. But we do not share Representative Celler's fear that the Chief Justice "may find himself in the position of prejudging" the constitutionality of the bill that Congress is expected to pass. He did not express any view as to the constitutionality of any bill. Rather, he was quoted as saying, in a departure from his text, that some of the 31 bills before Congress might produce ill-advised changes in Federal-state relations.

Apparently the Chief Justice is concerned about the so-called "automatic trigger bills." Some of these would set up a test to determine whether local and state courts exclude Negroes, women or other groups from jury service. If state courts failed to meet the test, they would automatically come under Federal supervision. The Administration's bill is much more guarded. It follows the pattern set by a three-judge Federal Court in Alabama in the White v. Crook case. After a specific finding of racial discrimination, the Federal court laid down jury-selection requirements that the state court would have to meet for a constitutional trial. The Administration bill would specifically authorize the Attorney General to bring suits of this kind.

Congressman Celler also thinks that the "automatic trigger" bills go too far. Likewise he and the Chief Justice share the conviction that this delicate problem of jury selection should be studied with great care before legislation is enacted. We surmise that this is a matter of much concern to the Chief Justice, for the Administration's bill was not referred to the Judicial Conference of the United States. The courts have a direct and immediate concern with the processes of selecting juries. Certainly the Judicial Conference should be heard from in the shaping of a new jury system.

It is no answer to say that the Administration and Congress are in a hurry. The problem has been with us for a very long time. Now that a solution is being earnestly sought, it is even more important that it be sound and workable than that it be enacted to meet a particular deadline. Instead of chiding the Chief

Justice for his concern about the matter, Mr. Celler could more appropriately call for a report from the Judicial Conference on the jury-selection bills that it deems worthy of study. If this should necessitate emergency sessions on the part of the judges of the Conference, we have no doubt that they would willingly respond.

Senator ERVIN. In fulfilling its responsibility, the subcommittee will consider the provisions of H.R. 5640, as well as those of title I. A copy of that measure will be printed at this point in the record. (A copy of H.R. 5640 follows:)

(H.R. 5640, 89th Cong., 1st sess.]

AN ACT To provide for a jury commission for each United States district court, to regulate its compensation, to prescribe its duties, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1864 of title 28 of the United States Code is amended to read as follows:

"§ 1864. Jury commission: duties, compensation, and methods of selecting and drawing jurors

"(a) APPOINTMENT.-A jury commission shall be established in each judicial district, consisting of the clerk of the court and one or more jury commissioners, appointed by the district court. The jury commissioners shall be a citizen of the United States of good character residing in the district of appointment who, at the time of his appointment, shall not be a member of the same political party as the clerk of the court or a duly qualified deputy clerk acting for the clerk. If more than one jury commissioner is appointed, each may be designated to serve in one or more of the places where court is held, and the clerk and the jury commissioner so designated shall constitute the jury commission for that part of the district. In the event that a jury commissioner is unable for any reason to perform his duties, another jury commissioner may be appointed, as provided herein, to act in his place until he is able to resume his duties.

"Jury commissioners shall be appointed to serve on a part-time or full-time basis. If in the opinion of the court the efficient operation of the jury system requires the services of a full-time jury commissioner, the court may, with the approval of the Judicial Conference of the United States, appoint one or more fulltime jury commissioners.

"(b) DUTIES.-In the performance of all its duties the jury commission shall act under the direction and supervision of the chief judge of the district.

"The sources of the names and the methods to be used by the jury commission in selecting the names of persons who may be called for grand or petit jury service shall be as directed by the chief judge. The procedures employed by the jury commission in selecting the names of qualified persons to be placed in the jury box, wheel, or similar device, shall not systematically or deliberately exclude any group from the jury panel on account of race, sex, political, or religious affiliation, or economic or social status. In determining whether persons are qualified as jurors under section 1861 of this title, the jury commission shall use questionnaires and such other means as the chief judge may deem appropriate, including the administering of oaths.

"The names of jurors shall be publicly drawn by chance from a jury box, wheel, or similar device, which contains at the commencement of each drawing the names of not less than three hundred qualified persons selected by the jury commission in accordance with the provisions of this subsection.

"The jury commission shall keep records of the names of persons placed in the jury box, wheel, or similar device, the questionnaires returned by said persons, the names of the persons who are selected for jury service, the dates of service, and such other appropriate records as the chief judge may direct, all for a period of not less than two years. With the approval of the chief judge, the jury commission may designate deputy clerks and other employees in the office of the clerk of the court to assist the commission in the performance of its duties and to perform under its direction such as the detailed duties of the commission as in the opinion of the chief judge can be assigned to them.

"(c) COMPENSATION.-Each jury commissioner appointed on a part-time basis shall be compensated for his services at the rate of $10 per day for each day in which he actually and necessarily is engaged in the performance of his official duties, to be paid upon certificate of the chief judge of the district.