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I understand that changes have been made in North Carolina under the former Governor and the present Governor and these situations are being rectified. But these problems are not being rectified in a number of other States, Senator.

Senator ERVIN. Let me give you other figures-putting it upon a 1,000-pupil basis. Negroes of the ages 25 to 34 having no schooling are at the ratio of 991 in North Carolina to 1,000 in Massachusetts. That is not much of a discrepancy is it--9 out of 1,000?

Those persons having no schooling between the ages of 35 and 44 of the Negro race in North Carolina number 987 as against 1,000 in Massachusetts.

I do not see much discrepancy there.

Attorney General KENNEDY. Senator, I am just looking at the Massachusetts has 2,945,000 white people and 81,000, out of that figure. have not received an education.

Senator ERVIN. North Carolina has 1,810,782 white residents and 496,389 nonwhite residents of the ages of 25 and upward while Massachusetts has 2,945,741 white residents and 64,876 nonwhite residents of the ages of 25 and upward.

Senator JOHNSTON. May I interrupt just one minute there? I think these figures would be confusing to the public in regard to when you are talking about finishing the fifth grade or sixth grade or whatever

it is.

I know, having been Governor twice of South Carolina, the same thing has taken place in all Southern States. We did find ourselves, because away back in 1905, 1906, and 1907, early at the turn of the century, a great many of the whites and coloreds did not have a chance to go to the fourth and fifth grades.

I, for one, was obliged to drop out because of personal obligations to my family which necessitated my working until I could resume my schooling at a later date, so I know more about it than a great many people.

So when I was Governor, more than 25 years ago, we were putting in the appropriations bill millions of dollars and set up adult schools throughout my State. They didn't get any certain grade, but they did get some education along the line. The same was true in North Carolina. The same was true in Mississippi, and all the Southern States, and they are doing it today.

I see a Member of the House from South Carolina here now and he will avow to the fact that they are appropriating money to people to go to night school for adults to attend. They are ashamed, the people, to go into classrooms, but they do want to go to school and they have been going.

I think you will find that has offset a great many of the figures we are talking about at the present time.

Senator ERVIN. Let me make a comparison upon a percentage basis of the educational status of members of the Negro race in the States of Massachusetts and North Carolina as disclosed by the census of 1960.

Of those between the ages of 25 and 34, 1.9 percent in North Carolina and 1 percent in Massachusetts had no schooling. Of those between the ages of 35 and 44, 3.5 percent in North Carolina and 1.8 percent in Massachusetts had no schooling. Of those between the ages of

45 and 54, 5.5 percent in North Carolina and 3.4 percent in Massachusetts had no schooling. Of those between the ages of 55 and 64, 10.2 percent in North Carolina and 6.5 percent in Massachusetts had no schooling. Of those between the ages of 65 and 74, 16.7 percent in North Carolina and 10.7 percent in Massachusetts had no schooling. of those above 75 years of age, 25.5 percent in North Carolina and 15.5 percent in Massachusetts had no schooling.

In view of the fact that the per capita income of the people in Massachusetts has always been far ahead of that in North Carolina, I think North Carolina does a pretty good job in staying somewhere in the neighborhood of your State of Massachusetts.

Attorney General KENNEDY. I think North Carolina does very well, Senator.

Could I just ask you whether you think, Senator, that there is a problem? Do you think there has been discrimination against Negroes in the field of education and that there is discrimination at the present time?

Senator ERVIN. If it is just to make inferences from more figures, I could infer there has been discrimination against white people in Massachusetts.

Attorney General KENNEDY. Senator, that is humorous, but it is really not accurate, based on what the facts are.

Senator ERVIN. It is not humorous.

Attorney General KENNEDY. Could you answer my question, and then maybe we could talk about whether there has been discrimination against white people in Massachusetts? Do you think, based on your own experience and on the figures and on the information you have, that there has been discrimination against the Negro in the field of education in some of the States?

Senator ERVIN. I would say to you in reply to that question, as far as North Carolina is concerned, North Carolina, with what resources it has had, has done about all it could do. If you do not have the money to educate people, you are not discriminating against them. Attorney General KENNEDY. You are more than just a Senator from North Carolina.

Senator ERVIN. You jumped on my State and brought it in and I did not, I think I ought to say a word in defense of it.

Attorney General KENNEDY. With all due respect, you have said. that. Senator.

But I am asking now, without specifying North Carolina, whether you feel there has been discrimination against Negroes in the field of education in some of our States?

Senator ERVIN. Frankly, I have never investigated the problem except in North Carolina and Massachusetts.

Attorney General KENNEDY. Don't you think, Senator, if you are so opposed to this legislation and take the position you do, even if the situation does not exist in your own State, you would at least familiarize yourself with the situation in other States we have been discussing?

Senator ERVIN. I do not see anything in this bill relating to education, except the provisions relating to integration and what they call racially imbalanced schools.

Attorney General KENNEDY. Senator, I do not understand how you can take that position, after the exchanges we have had over the last 6 or 7 weeks, and say you have never looked into the situation and that the only States you are familiar with are Massachusetts and North Carolina. Yet you are opposed to this legislation.

Senator ERVIN. I did not intend to say that, Mr. Attorney General. I have looked into many things besides Massachusetts and North Carolina. I only looked into the figures about the census of 1960 relating to education for those two States.

Attorney General KENNEDY. Do you think, Senator, getting beyond the field of education, that the Negro has been discriminated against in the State of Mississippi?

Senator ERVIN. According to the allegations made by the Attorney General, I would say they may be. I do not know of my personal knowledge. I have not investigated them.

Attorney General KENNEDY. Well, I think you should, Senator, with all due respect, if we are going to discuss this legislation. One of the situations it is aimed at is the treatment of Negroes in the State of Mississippi.

Senator ERVIN. Will you tell me what this bill has to do with education outside of school desegration?

Attorney General KENNEDY. I am talking about the whole pattern, the whole piece of legislation. I am asking you whether the Negro has been discriminated against. We are talking about voting, about education, about public accommodations, the whole area of the treatment of the Negro in the State of Mississippi. If you can say you have not looked into it in the State of Mississippi, I do not see how we can intelligently discuss this legislation. We are not just talking about North Carolina and Massachusetts, Senator.

Senator ERVIN. I have looked into the laws available to the Department of Justice to enforce the voting rights of anybody living in Mississippi or anywhere else. I went into these school matters solely because you saw fit to bring my State in. Frankly, I do not know that they are relevant to our discussion. I never hear an attack made on North Carolina without coming to its defense.

Attorney General KENNEDY. Senator, I think there is a lot that Massachusetts can learn from North Carolina and there is a lot that I can learn from you. But I just, in all due respect, if we are going to discuss this legislation and the problems that it is attempting to remedy, we should just make an effort to try to study what those problems are.

Senator ERVIN. I wish to pass over a detailed consideration of rewritten title VI until I have had an opportunity to study those provisions. I merely ask you at this time why you rewrote title VI.

Attorney General KENNEDY. Because I felt that it could be improved

upon.

Senator ERVIN. Did you not come to the conclusion that title VI in its original form was a clear violation of both the constitutional principle that Congress cannot delegate its legislative authority to the executive branch of the Government and the due process clause of the fifth amendment?

Attorney General KENNEDY. No, I did not.

Senator ERVIN. There was no provision in it for

Attorney General KENNEDY. Senator, I thought this was an improvement. Whatever the reason was, I think this is an improvement. Senator ERVIN. This bill deals with motives because after all whether discrimination is practiced must be determined by the intent or motive with which a person does an otherwise neutral act. This being true, I would like to know what motive inspired the Department of Justice to submit a rewritten title VI on the 23d day of August to a Congress which was supposed to have adjourned according to the Reorganization Act on July 31.

Attorney General KENNEDY. Because I thought this was an improvement and I do not gather that Congress is going to get out very quickly.

Senator ERVIN. Apparently not. Certainly if Congress is going to consider a bill which raises as many problems as this new rewriting of title VI does, it is not going to get out soon. The new title VI requires a study of Federal practice and procedure and of Federal administrative law. In most colleges of the United States where those courses are taught, the minimum requirement for teaching them is a 1-hour lecture for several days a week, 9 months out of the year, in addition to all the time the student will have to spend outside studying about them.

Mr. Chairman, I would like to put in the record at this point some remarks I made on the Senate floor about titles VI and VII of the original bill.

I think this statement will disclose some of the motives which prompted the rewriting of it.

Senator JOHNSTON. I hear no opposition. It will be printed into the record as part of the testimony.

(The document referred to follows:)

REMARKS OF SENATOR SAM J. ERVIN, JR., DEMOCRAT, NORTH CAROLINA, ON THE SENATE FLOOR

THE ADMINISTRATION'S CIVIL RIGHTS BILL: A DEBASEMENT OF CONSTITUTIONAL GOVERNMENT AND AN EXALTATION OF GOVERNMENT TYRANNY

Mr. ERVIN. Mr. President, I rise to comment upon titles VI and VII of S. 1731, which is the bill embodying the administration's civil rights proposals. Title VI is headed "Nondiscrimination In Federally Assisted Programs," and title VII undertakes to give congressional sanction to the President's Commission on Equal Employment Opportunity.

The constitution of my native State of North Carolina has always contained an admonition which the Congress, the President, and all Americans would do well to heed. It is this: "A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty."

Let us pause for a few moments and recur to fundamental principles. By so doing, we can see titles VI and VII of S. 1731 in proper perspective, and realize that they debase constitutional government and exalt governmental tyranny.

1. THE CONSTITUTION AS A PROTECTION

AGAINST GOVERNMENTAL TYRANNY

As Americans, we have received from the Founding Fathers a most precious heritage-government under a written Constitution. Each of us is bound by oath or affirmation to support this Constitution.

Why did the Founding Fathers enshrine in a written Constitution the fundamentals of the government they desired to establish and the liberty of the citizen they wished to secure?

The answer to this question is quite simple. The men who framed and ratified our Constitution were wise men. They had read the history of the long and bitter struggle of man for the right of self-government, and for freedom for the individual, and had found this shocking but everlasting truth inscribed upon each page of that history: No man, or group of men, can be safely entrusted with governmental power of an unlimited nature. As a consequence, they were determined, above all things, to establish a government of laws and not of men. In saying this, I merely echo in my feeble way eloquent statements made by a great advocate, Jeremiah Black, and a wise judge, David Davis, in the famous case of Ex Parte Milligan, 4 Wall. 2.

In arguing the unconstitutionality of the trial of his civilian client by a military tribunal, Jeremiah Black asserted:

"But our fathers were not absurd enough to put unlimited power in the hands of the ruler and take away the protection of law from the rights of individuals. It was not thus that they meant 'to secure the blessings of liberty to themselves and their posterity.' They determined that not one drop of the blood which had been shed * * * during seven centuries of contest with arbitrary power should sink into the ground; but the fruits of every popular victory should be garnered up in this new Government. Of all the great rights already won they threw not an atom away. They went over Magna Carta, the Petition of Rights, the Bill of Rights, and the rules of common law, and whatever was found there to favor individual liberty they carefully inserted in their own system, improved by clearer expression, strengthened by heavier sanctions, and extended by a more universal application. They put all those provisions into the organic law, so that neither tyranny in the executive, nor party rage in the legislature, could change them without destroying the Government itself."

In writing the opinion of the Supreme Court upholding Jeremiah Black's contention, Justice Davis declared:

"By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. *** These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our Government were familiar with the history of that struggle; and secured in a written Constitution every right which the people had wrested from power during a contest of ages. * * * Time has proven the discernment of our ancestors; for even those provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than 70 years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people. equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."

2. THE CONSTITUTION AS A PROHIBITION UPON THE DELEGATION OF LEGISLATIVE AND JUDICIAL POWERS TO THE PRESIDENT

The Founding Fathers embodied in the Constitution the doctrine of the separation of governmental powers. In so doing, they utilized this doctrine in a twofold way. They delegated to the Federal Government the powers necessary to enable it to discharge its functions as a central government, and they left to each State the power to regulate its own internal affairs. It was this use of the doctrine of the separation of powers which prompted Chief Justice Salmon P. Chase to make this trenchant observation in Texas v. White, 7 Wall. 700: "The Constitution, in all its provisions, looks to an indestructible union, composed of indestructible States."

In their other utilization of the doctrine of the separation of governmental powers, the Founding Fathers vested the power to make laws in the Congress, the power to execute laws in the President, and the power to interpret laws in the Supreme Court and such inferior courts as the Congress might establish. Moreover, they declared, in essence, that the legislative, the executive, and the judicial powers of the Federal Government should forever remain separate and distinct from each other.

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