Senator ERVIN. That was the propaganda that was put out for those who voted for the House bill without reading it or analyzing it. Mr. CLENDENIN. After very much study and consideration, I find nothing in that bill that reads this way.

It is not difficult to visualize the investigators for HUD issuing a subpena to a homeowner to reveal under oath and in public the details of any conversation he had with his broker which might conceivably touch on the preference of the homeowner. The House committee approved version of title IV can be an alarmingly dangerous instrument of oppression and harassment. If this is a compromise, Mr. Chairman, then I do not know the meaning of the word. We earnestly hope that the subcommittee will reject title IV, and that its views will prevail in the U.S. Senate.

Thank you very much for allowing me to testify.

Senator ERVIN. I want to commend you on the excellence of your statement and say I share your view about the so-called Fair Housing Board. For some strange reason, people who advocate what they call civil rights legislation want to circumvent the provisions of the Constitution which give access to the court and the right of trial by jury. This proposal for a Fair Housing Board is nothing in the world but another attempt to prostitute the judicial process.

Now, I have just one question. That is this: Do you not believe that this bill in actual practice will make the owner of a residence sell it to a person of some race or some religion or some national origin other than his own rather than to a person of his own race or his own religion or his own national origin in order that he might keep from becoming embroiled in lawsuits?

Mr. CLENDENIN. I do not think there is any question about it, Mr. Chairman.

Senator ERVIN. That being true, does it not very effectively, despite all of the contentions to the contrary, deny the owner of a residence the right to sell his residence or rent his residence freely according to his own choice?

Mr. CLENDENIN. In my opinion, it does.

Senator ERVIN. Do you not agree with me that that is the purpose of the bill?

Mr. CLENDENIN. Yes, Senator.

Senator ERVIN. Are not residential patterns now established by the people in the United States according to their own desires? Mr. CLENDENIN. That is right, sir.

Senator ERVIN. And this bill would deny the people of the United States the right to establish their own residential patterns and turn over the establishment of residential patterns to the courts and the coercive power of the Federal Government?

Mr. CLENDENIN. Yes, sir.

Senator ERVIN. And it robs the American people of one of their most basic freedoms, the freedom to own private property and the right of contract in the sale of private property.

Mr. CLENDENIN. This is my understanding, sir.

Senator ERVIN. Do you have any questions, Counsel?

Mr. AUTRY. Mr. Clendenin, you said that you read the House version of title IV. You may have noticed in there, a new provision.

in lawsuits. Therefore, many years of work toward improving the ability and public image of the realtor is poured down the drain by being forced by Government coercion to throw the doors open to any and all. Not only will my profession suffer, the general public will suffer, for they must depend on the advice and counsel of the professional realtor in the purchase or rental of real estate.

It is not easy for us to see that under the disguise of liberty for those being discriminated against, the so-called minority groups, this legislation would deny every citizen in this country the traditional freedom of contract-the right of the individual to choose without coercion from his government? The minority groups are extremely conscious of their rights or lack of them. This leads me to believe that they have not looked at this bill objectively. If they had, they would have recognized that their right in this area is in the same jeopardy as the majority's.

Everyone recognizes that there does exist a serious problem in this country. The problem stems from the simple fact that people of similar characteristics and culture desire to live, work, and play together to the exclusion of others. I believe that this largely holds true for the minority groups as well as the majority. The problem arises when one of the minority wishes to live with the majority. We are convinced that Government coercion, through forced housing law such as the one proposed in title IV, is no solution to this social problem. To compel people to accept one another is to eliminate whatever hope exists for the true attainment of Christian brotherhood and love for all by all.

Let us not be blinded by our conscientious desire to solve this problem to the point that we are unable to see that we are damaging the social relationship of all people, and at the same time are denying every citizen a cherished and inherent right. This to me is the real sorrow of this legislation.

Mr. Chairman, I have had an opportunity to study the revised version of title IV recently approved by the House Judiciary Committee, and I am convinced that it is at least as oppressive and as destructive of individual freedom as the original version. This is supposed to be a watered down version of title IV; I shudder to think of what that committee would have done had it set out to strengthen the bill. This so-called watered down version of title IV would create a Federal Fair Housing Board with power of subpena and power to issue cease-and-desist orders. Investigative powers would be vested in the Department of Housing and Urban Development, also with power of subpena. These two agencies will visit upon the property owners of this country thousands of a new breed of civil servants whose motive will be to determine the basis of any subjective decision by a property owner that may involve a refusal to rent or sell a dwelling to another. Even the homeowner will not be spared this plague. For example, the real estate broker is apparently exempt under this House committee version, if his alleged acts of discrimination are at the behest of the

owner.

Mr. Chairman, I prepared this statement before I received a copy of the new version of title IV, and from newspapers and other publications, it appeared to me that the real estate agent would be exempt if his orders or discrimination were at the behest of the owner.

Senator ERVIN. That was the propaganda that was put out for those who voted for the House bill without reading it or analyzing it. Mr. CLENDENIN. After very much study and consideration, I find nothing in that bill that reads this way.

It is not difficult to visualize the investigators for HUD issuing a subpena to a homeowner to reveal under oath and in public the details of any conversation he had with his broker which might conceivably touch on the preference of the homeowner. The House committee approved version of title IV can be an alarmingly dangerous instrument of oppression and harassment. If this is a compromise, Mr. Chairman, then I do not know the meaning of the word. We earnestly hope that the subcommittee will reject title IV, and that its views will prevail in the U.S. Senate.

Thank you very much for allowing me to testify.

Senator ERVIN. I want to commend you on the excellence of your statement and say I share your view about the so-called Fair Housing Board. For some strange reason, people who advocate what they call civil rights legislation want to circumvent the provisions of the Constitution which give access to the court and the right of trial by jury. This proposal for a Fair Housing Board is nothing in the world but another attempt to prostitute the judicial process.

Now, I have just one question. That is this: Do you not believe that this bill in actual practice will make the owner of a residence sell it to a person of some race or some religion or some national origin other than his own rather than to a person of his own race or his own religion or his own national origin în order that he might keep from becoming embroiled in lawsuits?

Mr. CLENDENIN. I do not think there is any question about it, Mr. Chairman.

Senator ERVIN. That being true, does it not very effectively, despite all of the contentions to the contrary, deny the owner of a residence the right to sell his residence or rent his residence freely according to his own choice?

Mr. CLENDENIN. In my opinion, it does.

Senator ERVIN. Do you not agree with me that that is the purpose of the bill?

Mr. CLENDENIN. Yes, Senator.

Senator ERVIN. Are not residential patterns now established by the people in the United States according to their own desires? Mr. CLENDENIN. That is right, sir.

Senator ERVIN. And this bill would deny the people of the United States the right to establish their own residential patterns and turn over the establishment of residential patterns to the courts and the coercive power of the Federal Government?

Mr. CLENDENIN. Yes, sir.

Senator ERVIN. And it robs the American people of one of their most basic freedoms, the freedom to own private property and the right of contract in the sale of private property.

Mr. CLENDENIN. This is my understanding, sir.

Senator ERVIN. Do you have any questions, Counsel?

Mr. AUTRY. Mr. Clendenin, you said that you read the House version of title IV. You may have noticed in there, a new provision.

This is section 403 (a), subsection 4-prohibiting real estate owners from "failing or refusing to show any dwelling which he is authorized to show prospective buyers, renters***" and it goes on. This is a fairly long provision, and it concludes with a prohibition against "failing or refusing to use best efforts to consummate any sale, rental, or lease, because of race, color, religion, or national origin of any party with respect to sale, rental, or lease."

Is it your understanding that you would be required to accept any client who came to you looking for a home?

Mr. CLENDENIN. Yes, sir, Mr. Autry. And the thing that really disturbs me about this wording is this. Let us take an example.

may

be working with several clients on very important matters, to me and to them, and into my office may walk an individual who is of a minority group. He wishes to see a certain residence, and it just so happens that my time is completely filled for 2 or 3 days, or let us just say for an hour or two. So I tell this individual that I will be happy to show it to him, but it would have to be tomorrow. I do not think we could do this if this bill passes, because it says we must give this person or any person our best efforts, and I would be afraid not to drop everything and to take this individual to see this residence. Our agency contract at this time with an owner for whom we have a residence for sale or for lease requires now that we give every transaction or every property our best efforts. But I would be afraid not to drop everything else in order to be sure that I was not accused of not giving my best efforts.

Mr. AUTRY. Let me ask you this: Do you know of any other professions such as the legal or medical professions-which are required by Federal law to accept all who come to seek their services?

Mr. CLENDENIN. I do not believe I do, sir.

Mr. AUTRY. And let me ask you this: I wonder if this "failure to exert your best efforts to consummate a sale" might not open the real estate profession to charges of malpractice?

Mr. CLENDENIN. I would have no doubt about it. This would be the fear I would have when this person comes in. I would feel I would have to drop everything else in order to take care of him. Mr. AUTRY. Thank you, Mr. Clendenin.

Senator ERVIN. This statute says in plain language that you can be sued for unlimited damages and have an injunction issued against you if you do not use your best efforts.

Mr. CLENDENIN. Right sir.

Senator ERVIN. When all is said and done, does not this bill rest upon the very strange theory that those who belong to the minority. should have rights superior to those of the majority and thus have the rights of the majority subordinated to their rights?

Mr. CLENDENIN. Mr. Chairman, this is my opinion.

Senator ERVIN. Thank you very much.

The subcommittee will stand in recess until 2:30 tomorrow. (Whereupon, at 1:40 p.m., the subcommittee recessed until the following day, Thursday, July 14, 1966, at 2:30 p.m.)

CIVIL RIGHTS

THURSDAY, JULY 14, 1966

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 4:35 p.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr., presiding. Present: Senator Ervin (presiding).

Also present: George Autry, chief counsel and staff director; H. Houston Groome and Lewis W. Evans, counsel; Rufus Edmisten, research assistant.

Senator ERVIN. The subcommittee will come to order.

Will counsel call the first witness.

Mr. AUTREY. Mr. Chairman, the first witness today is Mr. Beryl Kenyon, legislative counsel, Michigan Real Estate Association, whose appearance was scheduled at the request of Senators Hart and Griffin.

Senator ERVIN. I wish to welcome you to the subcommittee and express the appreciation of the subcommittee to you and the organization you represent for preparing and giving us the benefit of your views on this proposed legislation.

STATEMENT OF BERYL KENYON, LEGISLATIVE COUNSEL, MICHIGAN REAL ESTATE ASSOCIATION; ACCOMPANIED BY EVERETT TREBILCOCK, LEGAL COUNSEL

Mr. KENYON. Thank you, Mr. Chairman. We appreciate the opportunity to appear here.

I would like to introduce myself. I am Beryl Kenyon, Mr. Chairman, legislative counsel for the Michigan Real Estate Association, and I would like to introduce the gentleman who is legal counsel for the Michigan Real Estate Association, Mr. Everett Trebilcock.

Senator ERVIN. We are delighted to have you. You may proceed. Mr. KENYON. Gentlemen, on behalf of the Michigan Real Estate Association and its 2,000 members, this statement is submitted for the purpose of recording Michigan Real Estate Association's opposition to S. 3296 insofar as it pertains to private housing practices. Michigan Real Estate Association desires that this statement indiciate to the Judiciary Committee the substance of its underlying objectives.

Wholly apart from questions of policy, it is believed that the constitutional underpinnings asserted with respect to S. 3296 are of the most doubtful validity. It has been contended that this proposed legislation be based upon the commerce clause of the U.S. Constitution and the 14th amendment thereto. Neither proposition is legally tenable, in our judgment.