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It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the dust of the valley. All these may be rebuilt.

But who shall reconstruct the fabric of demolished government? Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skillful architecture which unites national sovereignty with State rights, individual security, and public prosperity?

No, if these columns fall, they will be raised not again. Like the Colosseum and the Parthenon, they will be destined to a mournful and melancholy immortality. Bitterer tears, however, will flow over them than ever were shed over the monuments of Roman or Grecian art; for they will be the monuments of a more glorious edifice than Greece or Rome ever saw-the edifice of constitutional American liberty." (Daniel Webster, 1832.)

Attorney General KENNEDY. Senator, I will tell you why I think this is an improvement, to get to the heart of this matter.

Senator ERVIN. That is exactly what I am asking.

Attorney General KENNEDY. I think it is an improvement in that the recipients of benefits under the programs, those who participate in programs, will know what the rules and regulations are that they have to follow.

I do not think that was true in title VI as we originally introduced it. I think that it is also an improvement in that it gives judicial review when an administrator of a program determines that discrimination has existed and decides to take certain action dealing with the program.

It permits the recipient of the program to have judicial review of that decision, and I think also that that is important.

Senator ERVIN. That is what I had to say in the speech I made, upon title VI in its original form. It left to the discretion of the President, acting in person or through some Federal Executive agency, the writing of the law. Moreover, its failure to provide for judicial review was a violation of the due process clause of the fifth amendment. So I agree with both of those observations.

Attorney General KENNEDY. I hope you will support it now, Senator.

Senator ERVIN. No, I cannot. Rewritten title VI still has too many serious defects in it.

Senator KEATING. Will the Senator yield for an insertion at this point?

Senator ERVIN. Yes.

Senator KEATING. I ask unanimous consent to insert at this point the text of the Keating amendment and the remarks made by the distinguished Senator from Connecticut, Mr. Ribicoff, and myself on August 20, found at pages 14547 and 14548 of the Congressional Record.

Senator JOHNSTON. I hear no objection. It shall be printed into the record and become a part of the record.

(The document referred to follows:)

AMENDMENTS TO TITLE VI OF S. 1731, THE CIVIL RIGHTS ACT OF 1963

Mr. RIBICOFF. Mr. President, on behalf of the distinguished junior Senator from New York (Mr. Keating) and myself, I submit, for appropriate reference, an amendment intended to be proposed by us jointly in the nature of a substitute for title VI of S. 1731, the Civil Rights Act of 1963.

This amendment represents a combination of the proposals previously made individually by the Senator from New York (Mr. Keating) and myself. On August 9, the junior Senator from New York submitted his amendment, and on 21-579 0-64- -23

August 13, I submitted my amendment. Since then we have endeavored to combine our proposals into a comprehensive revision of title VI that meets the objectives both of us were seeking. The amendment we submit today is the result of that effort, and it is my hope that it will be received in the spirit of constructive bipartisanship in which it is offered.

I have joined with the Senator from New York (Mr. Keating) to revise title VI of the civil rights bill to make it both more effective and more humane. The administration's bill is defective in two ways. It relies entirely on the punitive remedy of cutting off funds and yet it gives Federal administrators the discretion to take no action at all to end discrimination. It is an all-or-nothing approach that might work great hardship upon many people in some cases and be totally ineffective in other cases.

Since the administration bill has been introduced, much criticism of title VI has been expressed. Many sound arguments have been raised against title VI on the floor of the Senate. I believe many of the arguments that have been made are valid. I agree that it is wrong to allow a cutoff of Federal funds without any provision for judicial review.

I agree that an antidiscrimination provision should be used to take away benefits on a wholesale basis where no discrimination exists just to get at one instance where it does exist. I agree that an administrator should not have unlimited discretion to decide whether or not he will take any action to end discriminaion in programs using Federal funds.

Our amendment remedies all of these objections. In its main outline, it works as follows:

First. Discrimination would be prohibited in every program or activity that is financed with Federal funds. This is a matter of simple justice. It is also very likely a requirement of the fifth amendment.

Second. If any discrimination occurred, the administrator of the program would be required to take action. He could either ask the Attorney General to institute a civil action to end the discrimination or he could withhold further financial assistance. I would hope and expect that principal reliance would be placed on the remedy of a lawsuit. Cutting off funds does not end discriminations-a lawsuit does.

Third. The Attorney General would be specifically authorized to bring a civil action for preventive relief to end discriminations in Federal financed programs. Such a suit could also be instituted by the person alleging he has been discriminated against.

Fourth. If a situation developed in which a lawsuit was not effective and it became advisable to withhold funds, judicial review is provided so that the recipient of the Federal assistance can challenge in court the allegation of discrimination.

In authorizing suit by the Attorney General to end discrimination in federally financed programs, we have followed the wording of the Civil Rights Act of 1957 and have specifically added the provisons authorizing suit as amendments to that act. This means that all of the difficult questions concerning contempt powers and jury trials will be resolved in title VI lawsuits in the same way they were resolved by Congress in voting cases under the 1957 statute.

Mr. President, I will not repeat here the arguments I advanced last week in support of this revised approach to title VI. My statement appears on page 14027 of the Record.

Let me add only that my purpose is to provide a constructive answer to the many problems I saw in this field as Secretary of Health, Education, and Welfare. I have drawn on that experience in formulating this proposal.

The purpose of this revised title VI is to end discriminations in federally financed programs, and to do this not with merely the negative power of cutting off funds, but using the affirmative power to bring a lawsuit to end the discrimination. If a Negro child is kept out of a school receiving Federal funds, I think it is better to get the Negro child into school than to cut off funds and impair the education of the white children. A nondiscrimination provision should not be a club to punish people. Its main purpose should be to end discriminations.

I ask unanimous consent that the amendment be printed at this point in the record and that it lie on the desk for 10 days so that interested Senators may join as cosponsors.

The VICE PRESIDENT. The amendment will be received and printed; and, without objection, the amendment will be printed in the Record and will lie on the desk, as requested.

(The amendment was referred to the Committee on the Judiciary, as follows:) Amendment intended to be proposed by Senator RIBICOFF and Senator KEATING to S. 1731 (the proposed Civil Rights Act of 1963): On page 34, beginning on line 23, strike out all the language of title VI through line 14 on page 35 and substitute in lieu thereof, the following:

"SEC. 601. DISCRIMINATION PROHIBITED.—Notwithstanding any provision to the contrary in any law of the United States providing or authorizing direct or indirect financial assistance for or in connection with any program or activity by way of a grant, contract, loan, insurance, guarantee or otherwise, no such assistance shall be furnished unless in the administration of the program or activity, no discrimination is practiced on the grounds of race, color, religion or national origin, and in the granting of any benefits of such program or activity, no individual for whose benefit the program or activity was designed is discriminated against on such grounds. The administrator of any such program or activity may adopt appropriate rules and regulations for the enforcement of this section. "SEC. 602. REMEDY FOR DISCRIMINATION.-If the nondiscrimination requirement provided in section 601 is violated, the administrator of such program or activity shall act in one of the following ways:

"(a) Request the Attorney General of the United States to institute for or in the name of the United States a civil action under the provisions of section 604 of this title, or

"(b) Withhold all further financial assistance from the recipient until such requirement is complied with.

"SEC. 603. INTERIM RELIEF.—Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, any court before which a proceeding under section 604 or section 605 of this title is pending, is authorized to issue all necessary and appropriate process to postpone the effective date of any agency action under this title or to preserve status or rights pending conclusion of the judicial proceedings. Any agency is authorized, where it finds that justice so requires, to postpone the effective date of any action taken by it under section 602 (b) of this title during the pendency of any judicial proceedings instituted under section 604 or 605 of this title.

"SEC. 604. CIVIL ACTION FOR PREVENTIVE RELIEF.-Part III of the Civil Rights Act of 1957 is amended by ading at the end thereof the following new section: "SEC. 123. (a) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by the nondiscrimination requirement of section 601 of the Civil Rights Act of 1963, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction restraining order, or other order, may be instituted (1) by the person aggrieved, or (2) by the Attorney General for or in the name of the United States. In any proceeding hereunder, the United States shall be liable for costs the same as a private person.

"(b) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administrative or other remedy that may be provided by law.

"(c) Whenever a proceeding for judiical review has been commenced under section 605 of the Civil Rights Act of 1963, the Attorney General in the name of the United States may intervene in the proceeding with all the rights of a party thereto.'

"SEC. 605. JUDicial Review.—(a) Any person adversely affected or aggrieved by any final agency action under section 602 (b) of this title shall be entitled to judicial review thereof.

"(b) FORM AND VENUE OF ACTION.-The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence of inadequacy thereof, any applicable form of legal action (including motions for declaratory judgments or writs of prohibitory or mandatory injunction) in any court of competent jurisdiction." Mr. KEATING. Mr. President, I am very pleased to join with the junior Senator from Connecticut [Mr. Ribicoff] in the submission of this new amendment to revise title VI of the proposed Civil Rights Act, S. 1731, to bar discrimination under Federal grant-in-aid programs. Both the Senator from Connecticut [Mr. Ribicoff] and I have previously submitted separate amendments on this subject designed to make more effective the provisions in the original bill. We have reconciled our differences in the hope of mustering substantial bipartisan support for the needed changes in title VI.

A draft of our proposed amendment already has been brought to the attention of the Department of Justice, since we have been advised that the Department is working on a revision of this section of the bill. I am hopeful that the Attorney General will look favorably upon our proposal. The support of the administration obviously would greatly enhance the prospects for enacting a realistic bar on the grant of Federal funds for segregated or discriminatory programs or activities. The Attorney General is now scheduled to resume his testimony before the Senate Committee on the Judiciary on Thursday of this week.

It is my intention, if the opportunity presents itself, to elicit the views of the Attorney General on our amendment at that time.

Under the terms of our amendment, a policy of nondiscrimination would be required in the administration of every program or activity subsidized by Federal funds. If this requirement were violated, the funds could be denied or a suit for specific performance of the nondiscrimination requirement could be brought either by the Attorney General or by the victim of the discrimination. In addition, in order to assure elemental fairness in the administration of this requirement, any applicant for Federal financial assistance would have the right of judicial review of any final agency action denying funds because of alleged discrimination.

In my judgment there can be no justification on either legal or moral grounds for Federal tax funds collected from the pockets and pay envelopes of all our citizens without regard to race, religion, or national origin to be contributed to programs or activities administered on a segregated basis. It has always been my view that the President could put an end to such practices by the issuance of an Executive order. However, in the absence of such an Executive order a mandatory provision such as we are today submitting is essential and should be part of any meaningful civil rights bill.

This amendment would allow us to deal with this problem in a uniform and reasonable manner. I would be willing to support a provision which would automatically terminate any assistance administered in a discriminatory manner. However, legislation is the art of the possible, and I know that in its present form the amendment is much more likely to obtain substantial support than would an inflexible proposal for cutoffs in every case without any opportunity for judicial review or injunctive relief.

I want to pay my tribute to the distinguished Senator from Connecticut, who has worked with such diligence on this problem, and has spoken on it out of his wealth of experience as an administrator of some of the very programs which would be affected by this amendment. It is my hope that when this amendment will secure wide bipartisan support and that Members of both parties will add their endorsement to this approach to the problem by becoming cosponsors of the amendment.

Senator ERVIN. Mr. Chairman, I would like to have inserted and printed in the record at this point a statement by John C. Satterfield, former president of the American Bar Association, analyzing this bill, entitled "Unlimited Federal Control of Individuals, Businesses, and the States," and copies of Executive Orders 10925 and 11114, entitled "Equal Employment Opportunity in Federal Government on Federal Contracts."

Senator JOHNSTON. These will be part of the record. I hear no objection.

(The documents referred to follow :)

Unlimited Federal Control
Of Individuals, Businesses
And the States

Analysis of

"The Civil Rights Act 1963"

By JOHN C. Satterfield

Attorney at Law and a Past President (1961-1962)
of the American Bar Association

The proposed extension of federal executive and administrative control

over business, industry, individual citizens and the states by the package of legislation called "The Civil Rights Act of 1963" exceeds the sum total of all such extensions by all decisions of the Supreme Court and all Acts of Congress from 1787 to June 19, 1963. When future generations look back through the eyes of history at this legislation they will recognize ten per cent "civil rights" and ninety per cent extension of raw federal power. It is "The Trojan Horse of 1963."

Never in the history of nations governed by elected officials has the head of any State demanded naked untrammeled power such as is embodied in this Act, except when such state was upon the verge of becoming a dictatorship. If it is enacted the checks and balances set up by the Constitution of the United States will be destroyed. The States will be little more than local governmental agencies, existing as appendages of the central government and largely subject to its control. This legislation assumes a totally powerful National Government with unending authority to intervene in all private affairs among men, and to control and adjust property relationships in accordance with the judgment of Government personnel. It is impossible to prevent Federal intervention from becoming an institutionalization of special privilege for political pressure groups. This must lead eventually not to greater human freedom but to an ever-diminishing freedom.

Note: Although many of the major features of "The Civil Rights Act of 1963" are unconstitutional on their face, this review is limited to a discussion thereof as if the proposals were constitutional and became law. Any portion or all of this analysis may be reproduced or used with or without quotation or credit.

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