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which we hear so much are in States with fair-housing laws; and no appreciable change in housing patterns ever followed their enactment.
Housing is still inadequate and substandard. At best, the only ones who have benefited by these local laws, and the only ones who would benefit by the proposed national law, are the wealthy and the upper middle class.
On the day the bill was introduced, I noted that "if enacted, I fear that such a law would bring false hope and frustration to those who are deluded about its effect and purpose." Although we may agree on little else, the National Committee Against Discrimination in Housing views the legislation in the same light. The committee calls title IVtotally inadequate to meet today's critical national problem of the explosive racial ghetto . even if it could be strengthened such a proposal at this strategic moment may raise false hope among the Negro masses which cannot possibly be fulfilled by this proposal.
It is apparent that the American people and I are in agreement in opposing forced housing legislation. It has been overwhelmingly rejected. For instance, the people of the State of California, and of the cities of Seattle, Tacoma, Akron, Omaha, Detroit, and Berkeley have defeated decisively by referendum such proposals. It is extraordinary that the Federal Government would impose on every American what obviously the great majority do not want.
The extraordinary enforcement provisions of title IV deserve separate scrutiny from the desirability and constitutionality of the title, for it is no understatement to say they amount to a revolution of the American legal system.
Briefly, the title provides that an individual without payment of fees, costs, or security, and without regard to the amount in controversy, may have a court-appointed attorney bring a civil action, The court, which can grant a permanent or temporary injunction, may allow the plaintiff, if he prevails, attorneys fees, it may award' him, in addition to actual damages and punitive damages of $500, other damages on such vague grounds as humiliation" and "mental pain” and “mental suffering” without limit as to amount.
The Attorney General may intervene in a private suit if he feels the action is of "general public importance." Additionally, he can on his own, institute suits when he believes a person is engaged in a pattern or practices of “resistance” to the full enjoyment of any right granted by the title.
These unique additions to Federal tort law are dangerous and unfair. As far as I know this is the first instance, State or Federal, in which a plaintiff is provided counsel by the Government in a tort action case Why should counsel be provided here but not for an individual who is struck down by an automobile or train? More to the point, why should we not also guarantee counsel to the defendant homeowner or landlord?
Further, there is presently no other Federal law specifically allowing damages for such nebulous injuries as “humiliation” or “menta suffering" Nor do any of the more than 20 State and territoria antidiscrimination housing laws authorize such damages. I am thoroughly opposed to such actions, but if they are to be sanctioned by Congress, then let the homeowners counterclaim on the same basis In any event, if the plaintiff does not prevail, let the defendant homeowner also collect attorney's fees and costs.
In this connection, immediately prior to the introduction of this measure, I introduced, at the request of the Justice Department, several bills intended to provide equality and eliminate discrimination in civil suits between the United States and private individuals. These bills provide among other things that no attorney's fees be allowed, but that the loser in any case bear the costs. Even before these measures are passed, the administration seems to be forsaking the policy of equal justice embodied in those bills.
The enforcement provisions which we are expected to pass illustrates the bias inherent in the bill—bias against homeowners who must bear not only the cost but also an overwhelming burden of proof in a case where his opponent may be not only an individual plaintiff, but also the U.S. Department of Justice.
Equitable relief for alleged discrimination is authorized in every negotiation or transaction concerning real property. The end result will be that mortgage lenders, grantors, and grantees will be in a constant quandary regarding finality of any sale or loan.
The provisions constitute an invitation to unwarranted harassment by unjustified lawsuits each time an owner sells or rents his property.
In 1964, Congress established a conciliation commission known as the Community Relations Service whose purpose was to solve civil rights disputes by mediation rather than by litigation or demonstration.
Earlier this year, over my vigorous objection, this agency was transferred from the neutral aegis of the Commerce Department to the national prosecutor, the Justice Department.
One of the objections to transfer was that the administration has become impatient with conciliation and was forsaking that tool for settling disputes for quicker if more abrasive methods. Although this was denied by the administration then, by implication they confirm it now. Although every State law contains some procedure for conciliation, and although the Justice Department now has over 100 employees hired to perform this function in its Community Relations Service, nowhere in the title is conciliation mentioned as a means of enforcement.
In spite of all its unique enforcement methods, the purpose of the title cannot be achieved any more than alcohol was destroyed by the Volstead Act. In the final analysis, there is no way a free country boasting a free economy can tell its citizens to whom, when, or for how much they may sell their houses. Yet the precedents it would create are dangerous and just as with prohibition-trade will be in turmoil and the purpose left unaccomplished.
Taken in its entirety, title IV can only result in one of two things: If its purpose is accomplished, then basic rights of property and freedom of choice are extinguished; if I am correct, and the title fails in its purpose, then we have enacted a stupid law which can only bring frustration and ill will.
In many ways title V is a sad provision-sad and bad. It is sad because its submission to us was suggested by the commission of a few unconscionable crimes and bad because it is the product of the gratuitous and mistaken advisory opinion of several of the Justices of the Supreme Court in United States v. Guest.
The advisory opinion of which I speak was contained in the concurring opinions, to the effect that State action is no longer a necessary element in acts of Congress designed to implement the 14th amendment. This is absolutely contrary to the legislative history of the amendment, the clear language of the amendment, and scores of cases from the civil rights cases in 1883 to Brady v. Maryland (373 U.S. 82, 92 (1963)) interpreting the amendment. No amount of intellectual sophistry, no amount of torturing of the language of the 14th amendment can change the fact that a prosecution brought pursuant to its mandate requires the element of State action or action taken under color of law.
Indeed, the title, as now worded may violate the first amendment provision for freedom of speech insofar as it prohibits undefined action such as "'intimidation,” “interference," and "attempts to interfere.” It also may be unconstitutionally vague in violation of due process.
Further, from a standpoint of policy—and apart from its constitutional problems and poor drafting-enactment of title V would be dangerous and illiberal. If Congress can make it a Federal crime for an individual to "interfere" with another's "right" to rent a house or to be served in a place of accommodation, the Congress can make it a Federal crime to interfere with the right to walk the streets without being robbed or the right to be protected in conducting a private business.
Title V would serve as a precedent for making any State crime a Federal crime and would require a Federal police force—the opening wedge of a police state.
It would seem to me that if Federal jury antidiscrimination laws were enforced, there would be no need for title V. At this point we have ample evidence that convictions can be obtained in Federal courts, and it seems to me that sections 241 and 242 of title 18 constitute an adequate remedy. The constitutionality of these statutes have been adjudicated and upheld. Indeed, within hours of the decisions in the Guest case, it was reported that new arrests were made by the FBI. All that is needed are provisions for increased penalties for 241 and 242 if death or bodily harm result from their violation. Certainly, in a hypothetical case, if a sheriff charged with enforcing the law were to murder an individual on account of the victim's race or color, he should receive life imprisonment.
Assuming, however, that the Justice Department continues to prefer to request new laws rather than to enforce present ones, it should respond to that request in the only way consistent with our form of government; by constitutional amendment.
Beyond that, the principle of federalism and the protection of individual rights demand that we consider very carefully more extreme legislative measures.
CONCLUSION Current HEW policies requiring assignment of school desks and hospital beds according to race, the identification of jurors according to race, and religion, the use of minority group status questionnaire by which all Federal employees are to be designated according to race and ancestry, the proposal of Secretary Wirtz that all private businesses dealing with the Federal Government classify their employees according to race all these innovations defy constitutional proscriptions and commonsense. Such requirements will lead to every American being officially identified according to his race, creed, or national origin. This can only bring divisiveness to our people. These are not the proper policies of a government which is supposed to be colorblind.
Again, I emphasize what I said when this bill ws introduced. With the exception of the title concerning Federal jury selection, S. 3296 is in line with the recent succession of civil rights proposals, each more drastic than the one before, each more threatening to the rights of individuals, each more destructive of the rights of States. I honestly fear we may be witnessing the twilight of federalism. The States more and more are resembling the "conquered provinces” to which Justice Black alluded in his partial dissent in the recent voting rights case, and the "meaningless zeroes" to which Justice Frankfurter alluded earlier. If Congress enacts this bill as presently drafted, if it capitulates again to the political pressure of unpeaceful demonstrations and to misplaced righteous indignation, we will be sharing in the demise of the Constitution.
It is imperative that Congress rise above both the pressure of demonstrators and the emotions aroused by extremists on both sides and defeat any proposal which would extinguish the freedom of the individual and the identity of the States. As members of this subcommittee, we will, I trust, assume our obligation to the country and to the Constitution by deciding for ourselves what is correct and what is constitutional.
Our duty here is to determine how to protect the rights of all Americans of all races and all generations without extinguishing other precious rights. Our duty is to implement the Constitution without perverting it.
These obligations, I hope, will remain paramount in the minds of both the members and the witnesses as the hearings progress.
I felt it was incumbent upon me to express my views at length because I consider these bills to be the most drastic assault upon the freedom of 190 million Americans as individuals, and also the most drastic assault upon the principle of federalism on which our Constitution and system of government rest.
I appreciate the indulgence of the members of the subcommittee, and at this time would like to give Senator Kennedy, the ranking member present, an opportunity to present his statement.
Senator KENNEDY. Thank you, Mr. Chairman. I have a short statement which I should like to read at this time.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM
THE STATE OF MASSACHUSETTS
Mr. Chairman, I have studied very carefully the Administration's proposed Civil Rights Act of 1966, S. 3296, as well as the six other related bills which are before this Subcommittee. I have also gone over the transcripts of the testi'nony taken on these bills in the House Judiciary Committee. In my judgment this legislation is vitally needed, and needed now. I have no doubts as to its constitutionality. I am, therefore, proud to be a co-sponsor.
Despite the progress we have made as a result of the reforms instituted under the Civil Rights Act of 1964 and the Voting Rights Act of 1965, much still remains to be done before the American Negro can claim his rights of full citizenship.
We, as a nation, cannot realize our national goal of justice and equal opportunity for all Americans so long as crimes of racial violence continue to go unpunished; Negroes continue to be excluded from service on state and federal juries; public schools continue to be racially segregated; and Negro Americans continue to be denied the opportunity for equal access to good housing.
The Administration bill is aimed at ending these injustices. It represents still another step in what must be, because of a century of neglect and injustice, a concerted national effort to make justice and equal opportunity a reality for all Americans.
In particular, I would like, at the outset, to express my support for Title IV of the Administration bill, which seeks as a matter of national policy to remove racial and religious discrimination as a barrier to obtain housing. As long as the Negro American remain isolated from other Americans and denied equal access to good housing, he will continue to live in segregation, forced to pay a higher price for the limited inferior housing to which he does have access. His children will continue to go to segregated schools of inferior quality, and his family will continue to experience segregation in most other aspects of their daily lives, cut off from the society that surrounds them.
Ending discrimination in housing does not mean giving special advantages to minority groups. It does mean that the American Negro and other minority groups will have the same right and opportunity that all other Americans now possess to live where they choose. Most Americans do not consider this a revoÎutionary right. But is should be basic and fundamental to all Americans.
Although I believe the objectives of this bill are laudable and can be simply stated, we all must recognize that there is ample room for disagreement regarding the most desirable manner of implementing these objectives. This is evidenced by the differences among the various bills before us, all ostensibly designed to realize the same objectives.
For my part, there are a number of matters unresolved in my own mind, in which I am particularly interested. 1. In the area of federal jury reform:
(a) whether the use of voting lists supplemented by names supplied by Judicial Councils is a better approach than the use of random sampling techniques;
(b) whether the prosecution in a criminal case should be given the right to challenge the manner in which his jury is selected, and the Attorney General
given the right to intervene. 2. In the area of state jury reform:
(a) whether, given the difficult burden of proving, state jury exclusion, it would not be wise to provide an “automatic trigger” procedure, as we did in the Voting Rights Act, in order to shift the burden of showing non-discrimination to the State.
(b) whether States ought to be required to record race, color, religion, sex and national origin whenever a prospective juror is called to demonstrate
his qualifications for jury service. 3. In the area of housing:
(a) whether, given our lack of success with the individual law suit approach in voting rights, it is wise to rely exclusively on that approach in housing.
(b) whether Title IV should provide an administrative remedy as well as a judicial one?
(c) whether the exemption in Title VI of the 1964 Civil Rights Act which excludes contracts of insurance and guarantee from the cut-off provisions
of that Title should be eliminated? 4. In the area of expanding federal jurisdiction over racial violence:
(a) whether the 42 USC 1983 should be amended to permit suits by private persons for injunctive relief against persons seeking to interfere with the rights set out in Title V, and to make local governments that employ officials who deprive people of such rights jointly liable with those officials for injuries caused by such misconduct?
(b) whether persons injured as a result of violations of rights covered in Title V should be given a right to sue for damages in federal district court? I am therefore looking forward to the testimony we shall hear in the days ahead, on these and many other questions, in order that the bill ultimately reported by this Subcommittee reflects the best possible legislation we can devise to achieve the stated goals of these proposals.
I would also like to take this opportunity to commend the President and the Administration for the courage and dedication displayed in this legislation.