counsel. We appreciate this opportunity to present the views of the AFL-CIO on this important matter.

The proposals which this subcommittee are considering deal with two major problem areas in the functioning of American democracy. The first has to do with the administration of justice; the second, with discriminatory housing practices.

In both of these fields there are large and acute evils which must be eradicated; and the AFL-CIO welcomes the determination of the President and the Congress to face and face squarely the difficult issue of how best to remedy these deficiencies.

We all, I hope, believe in equal justice under law; and we all, I hope, believe that no part of our population should suffer discrimination in so vital a matter as a place to live. The question is how to implement these principles.

The AFL-CIO endorses and supports S. 3296. We think it provides constructive and effective cures for the evils with which it deals, and we urge its enactment. We believe that the bill could be strengthened in a few particulars which we suggest below, but in general we are for it.

I will discuss successively the various titles of the bill, indicating in each instance what, if any, changes we think might be made.

TITLES I AND II

Titles I and II undertake to end discrimination in jury systems, in, respectively, the Federal and State courts.

Up until now three different groups have been discriminated against in various areas as respects selection for jury service.

Senator ERVIN. I am very sorry but there is a live quorum call and I have to run off and leave you. I will be back as soon as I can. Mr. BIEMILLER. I understand perfectly, Mr. Chairman.

(Brief recess.)

Senator ERVIN. Proceed, Mr. Biemiller.

Mr. BIEMILLER. These groups are: first, Negroes and perhaps members of certain other minorities; second, women; and third, people with low incomes. The discrimination may be de facto or de jure.

Discrimination against Negroes is unquestionably most acute in the

South.

Discrimination against women is also concentrated in the South but is probably also more prevalent de facto in rural and small town areas than in cities. Also, both of these types of discrimination are more prevalent in State than in Federal courts.

On the other hand discrimination in selection for jury service against people having low incomes is decidedly not a peculiarly southern vice, and it is probably more prevalent in Federal than in State courts and in cities than in rural areas. Mr. Thomas Dewey, when he was a young district attorney, was an advocate of the so-called blue ribbon juryin State courts in New York City. But the use of blue ribbon juries is at least as prevalent in Federal courts as in State courts generally.

Prosecutors have the idea that juries drawn from the upper economic strata are readier to convict. We commend Attorney General Katzenbach for his willingness to forego this advantage for prosecu

tors, if indeed it is one, and for his recognition that discrimination on grounds of economic status is just as violative of the equal protection of the laws as discrimination on grounds of race or sex.

There is another reason for banning discrimination on the basis of economic status. It is that if such discrimination is permitted, it will perpetuate, in a different guise, discrimination against Negroes and other minority groups.

We therefore agree with the sponsors of S. 3296 that all three types of discrimination-that is, on grounds of race, sex, or economic status— should be ended. Further, we agree that the language of the bill is clear and straightforward; namely (p. 2, lines 9 to 12):

No person or class of persons shall be denied the right to serve on grand and petit juries in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status.

The same terminology is used in the provision as to State courts. As respects the Federal courts, the bill's ban on discrimination is affirmatively implemented by providing that names for a master jury wheel shall be selected "at random" from the voter registration lists, and, if the judicial council of the circuit so determines, other sources. As respects to State courts, however, the bill contains no parallel affirmative requirement for selection at random, but only the general ban on discrimination.

Thus the bill seems to leave it open to the States to prescribe the qualifications other than those banned, such, for example, as a college degree. We urge that this opportunity to perpetuate undemocratic jury selection systems, and to evade the bill's prohibitions, be foreclosed. The States should be affirmatively required to select persons for jury service at random, just as the Federal courts are, and the maximum qualifications prescribed for Federal jury service (p. 7, line 22; p. 8, line 10) should be made the maximum permissible qualifications for State court jury service.

Perhaps the Attorney General had doubts at the time the bill was drafted as to the constitutional reach of the power of the Congress under the 14th amendment to prescribe State court jury qualifications to insure the equal protection of the laws. Any such doubts have, however, been set at rest by the decision of the Supreme Court in Katzenbach v. Morgan. The Court here made it clear that the 14th amendment is a source of Federal substantive legislative power, just as are the other grants of legislative power in the Constitution, and that Congress has broad discretion in legislating standards to implement the equal protection clause. Thus there is no constitutional need for the disparate approaches used in the bill as to Federal and State jury qualifications; and the need for affirmatively prescribing the permissible qualifications is greater in the case of States than of Federal

courts.

Further, we urge that the procedures for enforcing these qualifications be strengthened as regards both Federal and State courts.

In the case of State juries, the bill authorizes the Attorney General to bring injunctive proceedings against State jury officials. However, the bill does not contain any such authorization in the case of Federal juries, evidently upon the assumption that Federal judges and jury commissioners will be readier to implement the bill's standards

than will their State counterparts. Even if this assumption is correct there has been, as the Attorney General acknowledges, some discrimination in the Federal courts, and we see no reason why the provision for suits by the Attorney General should not be applicable to Federal juries as well as to State.

More important, we are doubtful that the enforcement provisions of the bill are adequate even in the case of State juries. The bill does provide a discovery procedure to make it easier to find out whether unlawful discrimination has occurred in the jury selection process. This procedure is available to the Attorney General in civil suits brought by him and to defendants in criminal prosecutions. However, for enforcement of its bans on discrimination the bill relies exclusively on adjudications in individual lawsuits, either where the issue is raised by private litigants or in suits brought by the Attorney General.

We are doubtful that this sort of spot policing will be adequate to end jury discrimination. It has not been adequate to end discrimination in other fields.

As respects the right to vote, for example, legislation prior to the Voting Rights Act of 1965 relied for enforcement on suits brought by the Attorney General or by voters. Suit had to be brought in each election district, and in each separate suit there had to be an adjudication whether there had been an unlawful deprivation of the right to vote. We foresaw that these provisions would prove to be inadequate. We testified, when the bill was before Congress, that implementing the 15th amendment by lawsuits was like trying to paint a wall with a fountain pen.

Our forebodings proved to be well founded, as is shown by the Voting Rights Act of 1965.

That act utilized several novel devices to counter enforcement difficulties. It provided an automatic triggering test; that is, whether fewer than 50 percent of eligible persons were registered or voted. It provided for determinations applicable throughout major geographic units; that is, State or counties. It provided for the use of Federal examiners to register voters, and for Federal observers at elections.

These provisions, in contrast to their predecessors, seems to be working reasonably well.

As respects school desegregation, too, individual lawsuits proved to be a slow and ineffective way of vindicating constitutional rights. Hence, title VI of the Civil Rights Act of 1964.

On the basis of these experiences, we suggest that broader scale procedures for the implementation of title II may be needed than enforcement through individual lawsuits. We believe the suggestions on this point made by Roy Wilkins in his testimony for the Leadership Conference on Civil Rights have substantial merit and deserve. the attention of this committee.

TITLE III

This title deals with discrimination in the schools and other public facilities. It eliminates certain existing limitations on the bringing of suits by the Attorney General, and provides for broadened relief.

We are in favor of the enactment of title III as written.

Since the Attorney General's testimony of this title was rather general, we propose to give a concrete illustration of why this title is needed.

In 1950 some Negro parents brought suit against school officials in Clarendon County, S.C., seeking the admission of their children to the white schools. In 1951 the Federal district court ruled that the schools were very separate but not very equal, and that the plaintiff's rights under the 14th amendment were being violated. However, the court did not order that the children be admitted to the white schools: it ordered that the Negro schools be made equal.

In 1954 the Supreme Court likewise held that the Negroes' constitutional rights were being violated, on the ground that segregation by races is inherently unequal. This case was one of the four decided by the Supreme Court in Brown v. Board of Education (347 U.S. 483). In 1955 the Supreme Court, on reargument, ruled that integration should proceed with "all deliberate speed," and the case went back to the district court.

In the district court the deliberation has been more evident than the speed. It was not until the fall of 1965 that the district court finally required the admission of six Negro children to white schools in Clarendon County.

Of course, these were not the same children whose parents had started the litigation. A child who was 6 years old in 1950 was 21 in 1965. However, one Negro girl whose parents had intervened later, and were parties in the 1954 Brown cases in the Supreme Court, did finally get into a white school at age 17 after 11 years of litigation. Incidentally, according to news reports, the whites have been giving her a bad time.

Of course, the litigation isn't over. The court has retained jurisdiction and has ordered further desegregation next fall. Anyway, Negro parents, with the help of the legal defense fund of the NAACP, have been carrying on this litigation for 16 years, and the end is not in sight.

The Department of Justice has not brought suit in this situation. The burden of the litigation has been left to the parents and to the legal defense fund. The Department of Justice could bring suit under title III of the Civil Rights Act of 1964 if the Attorney General certified that the parents were unable to maintain appropriate legal proceedings, which means under the statute that they "are unable either directly or through other interested persons or organizations, to bear the expense of the litigation***”

How can the Attorney General determine such a thing as that? The legal defense fund of the NAACP is presumably able to sustain a certain volume of litigation, but what is the basis for saying that it is able to maintain one particular suit and not another?

More broadly, it is our view that the burden of vindicating these constitutional rights should rest on the Federal Government, and that it should rest there regardless of whether particular parents can or cannot afford to sue. That is one reason why we urge the enactment of title III.

The other reason is the physical and economic intimidation which faces Negro parents in some areas. Title III authorizes the Attorney

General to seek injunctions against such intimidation, and we are of course strongly in favor of that.

TITLE IV

The AFL-CIO likewise strongly supports title IV of the proposed Civil Rights Act of 1966.

Organized labor has long been in the forefront in the fight for fair housing legislation. Laws enacted by a large number of States and municipalities to outlaw discrimination in housing have been placed on the statute books with the full backing, and often on the initiative of, organized labor.

The Sixth Constitutional Convention of the AFL-CIO, held last December, called for equal housing opportunity in these words:

A key feature of labor's housing program is its drive for equal housing opportunity for all Americans. There is no place in America for racial ghettos. Equal access, without regard to race, creed, color, or national origin, to every residential neighborhood in every American community should be assured for every family in America.

The national purpose was pledged by Congress in the Declaration of National Policy set forth in the National Housing Act of 1949 (Public Law 171, 81st Cong.; 63 Stat. 413; 42 U.S.C. 1441), which stated:

The Congress hereby declares that the general welfare and security of the Nation and the health and living standards of its people require *** the realization as soon as feasible of the goal of a decent home and a suitable living environment for every American family, thus contributing to the development and redevelopment of communities and to the advancement of the growth, wealth, and security of the Nation.

This congressional affirmation should be viewed in the light of the Nation's resolve proclaimed by the 14th amendment to the Constitution. The 14th amendment declares that no State shall deny "the equal protection of the laws" to any person, regardless of race.

The Supreme Court has said (Shelley v. Kraemer, 334 U.S. 1 (1948)):

It cannot be doubted that among the civil rights intended to be protected from discriminatory State action by the 14th Amendment are the rights to acquire, enjoy, own, and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of the amendment as an essential precondition to the realization of other basic civil rights and liberties which the amendment was intended to guarantee.

And the Supreme Court held, in that case, that the 14th amendment prohibits the courts, as instrumentalities of the States, from enforcing private racially restrictive convenants. In another case (Hurd v. Hodge, 334 U.S. 24 (1948)), the Supreme Court applied similar prohibitions to the Federal Government and its courts, as well.

The U.S. Civil Rights Commission, in its 1961 report on housing, reviewed this constitutional background and arrived at this compelling conclusion:

* * * it poses the question whether, as a matter of national policy, the Federal Government can permit itself to be involved in the denial of equal opportunity; whether the Federal Government, which has established national housing programs to achieve a national purpose, should not take affirmative steps to move upward the achievement of equal opportunity in housing for all Ameri